AJOY KUMAR ROY Vs. RAJ BALLAV MONDAL

JUDGEMENT

(1.) This Rule was obtained to quash the criminal proceedings under section 265 I.P.C. pending in the court of the Sub-divisional Judicial Magistrate, Basirhat in Case No. C. 151 of 1977.

(2.) It appears that a petition of complaint under section 120(B), 465 and 468 I.P.C. was filed against the petitioner and others before the Sub-divisional Judicial Magistrate, Basirhat alleging that Sonapukur Samabay Krishi Unayan Samity, a registered Cooperative Society is being managed by its managing committee according to the provisions of the Co-operative Society rules and by-laws. The accused petitioner No. 1 and others became members of the said samity in 1976. The function of the said samity, inter alia, is to collect money from the West Bengal Government and give loans to the members for the purpose of agriculture. The samity has a common seal approved by the Registrar, 24-parganas. Every member of the samity is entitled to get loans from the samity for agricultural purpose on execution of a mortgage deed known as 'Karbar-Nama' and on the security of the landed properties by deposits of relevant documents and papers relating to the title. The samity would get the deeds verified by a lawyer through the Secretary and have a report from him regarding non-encumbrance and the marketability of the properties. After that the common seal of the samity would be affixed before registration. It was alleged that the accused persons in conspiracy with one another and with dishonest intention to defraud the Samity induced Moni Mohan Mondal, Chairman of the Samity, to give forty-two prescribed forms of mortgage to the accused persons on the false representation that they would execute Karbar-Nama after mortgaging their lands for which they would submit the relevant papers. The accused persons affixed the common seal of the samity behind the back of the Secretary and presented the deeds fradulently obtained from witness No. 1 to the Sub-registry office at Bhangur. On receipt, of these said petition of complained the learned Sub-judicial Magistrate examined the complainant opposite party No. 1 who was the Secretary of the Samity and then summoned the accused petitioners under section 465 I.P.C. by an order dated the 8th of February, 1977. The accused petitioners surrendered and were released on a bill of Rs.300/- with out surety. This rule challenges the said order dated the 8th of February, 1977 by which the learned Magistrate after examining the complainant and other prosecution witnesses issued summons.

(3.) Mr. Dasgupta, the learned advocate, appearing in support of the rule argued that the whole proceeding was vitiated in view of section 195 (1) (b) (ii) of the Criminal Procedure Code as the complaint was not initiated in this case by the Sub-registrar. According to Mr. Dasgupta the Sub-registry is a court within the meaning of the expression used in the section and he relied on an old decision of the Madras High Court in re. Venkatachala Pillai and ors., reported in I.L.R. 10 Madras 154 which was again followed in I .L.R. 15 Madras 138 (Atchayya and anr. v. Gangayya). Mr. Dasgupta urged that after the said decisions, when the criminal procedure code of 1898 was enacted it was specifically provided that the Sub-registrar would not be regarded as a court. The new Criminal Procedure Code of 1974, however, has deleted the said provision. Therefore, according to Mr. Dasgupta the Sub-registrar should be deemed to be a court and the complaint in question not having been made at the instance of Sub-registrar the learned Magistrate should not have taken any cognisance or issued any summons.