JOGENDRA NATH MONDAL Vs. UNION CREDIT BANK LTD

JUDGEMENT

(1.) This is an appeal against an order of Sarkar, J., refusing to make a complaint under Section 476 of the Code of Criminal Procedure. The Petitioner before Sarkar, J., was one Jogendra Nath Mondal. His name appears as the Plaintiff in a suit filed some time in 1949. His case is that he did not sign the plaint in the said suit nor did he sign the verification: clause on the warrant in favour of the attorney for the Plaintiff on record in the said suit. His further case is that one Birendra Nath Dutt Choudhury, who is Respondent No. 2 in this appeal forged his signature on the said warrant of attorney and on the plaint including the verification clause and also put certain initials in the hody of the plaint purporting to he his initials The said suit came into the Special List on November 7, 1949, and was dismissed for non-prosecution. On December 1, 1949, on the application of the solicitor for the Plaintiff on record, the suit was restored. Thereafter, the Bank went into liquidation. On January 3, 1950, the suit was ordered to be withdrawn with liberty to prove the claim in the liquidation proceedings. 'The case of the Petitioner, Jogendra Nath Mondal, was that it was on April 16, 1951, that he, for the first time, came to know of the institution of the said suit from a telephonic call made by Durga Sankar Mukherji, solicitor for the Plaintiff on record in the said suit. Thereafter he caused searches to be made in the records of the said suit and came to know that such a suit had been filed in his name.

(2.) The Petitioner, thereupon, made the present application to this Court under Section 476 of the Code of Criminal Procedure. In the said application the Petitioner prayed for an order that the Registrar, Original Side, should make a complaint on behalf of the Court under Section 476 of the Code of Criminal Procedure to the Chief Presidency Magistrate against the said Birendra Tath Dutt Choudhury so that the said Birendra Nath. Dutt Choudhury may be prosecuted for having committed the forgeries as aforesaid and having used the forged documents in connection with, or in the proceedings initiated or taken in this Court under Sections 466, 471, 474 and 418 of the Indian Penal Code or any other relevant sections. The application was heard by Sarkar, J., and the learned Judge dismissed the said application on a preliminary point. His Lordship held that an order under Section 476 of the Code of Criminal Procedure could only be made against a party to the proceeding in relation to which the offence is alleged to have been committed and as Dutt Choudhury was not a party to the suit in the proceedings in which the alleged forgeries took place, no order could be made against him under the said section.

(3.) Sarkar, J., in support of his said view referred to the decision of Rankin, C.J., and C.C. Chose, J., in Prabhatranjan Barat v. Umashankar Chatterji,1930 ILR(Cal) 727. It is not disputed before us that in the said case it has been held that an order under Section 476 of the Code of Criminal Procedure cannot be made against a person who was not a party to the suit in the proceedings in which the offence in question is said to have been committed.