VIJAY PEOJI TEA COMPANY Vs. BIMALESWAR GOSWAMI

JUDGEMENT

(1.) Petitioners have filed this petition for quashing the criminal proceedings (CR No. 2839187) pending in the coon of Judicial Magistrate 1st class, Gauhati. Their case is that the opposite party, an Executive Director of Associated Brokers Pvt. Ltd., Ulubari, Guwahati (hereinafter referred to as Company) instituted a complaint case in the coon of Chief Judicial Magistrate, Kamrup against them. In his complaint, the opposite party stated, inter-alia that the 1st petitioner is a partnership fine and 2nd and 3rd petitioners are its partners. The 1st petitioner used to maintain a Cash Credit Running Accounts with the Company through its partners. The firm through the 2nd and 3rd petitioners and to draw finance from the company Besides finance was also received from the sister concerns of the Company, namely, Peoji Tea Company and Durga Tea Company. The 3rd petitioner by his letter dated 26.5.1981 acknowledged that an amount of Rs. 1,45,642.21 paise remained outstanding to the company. Along with the said letter, two statements of accounts were also forwarded to the company in confirmation of the aforesaid dues. The 3rd petitioner also executed a promissory note on 26.5.1981 promising to pay the said sum of Rs. 1,45,642.21 paise together with interest 12% per annum to the company on demand. However, the petitioner No. 3 in spite of demand, failed to pay the amount as promised. Therefore, the company instituted a Money Suit (MS No. 135/84) in the court of Assistant District Judge, Gauhati Court issued summons to the petitioners as defendants. Petitioner on service of summons entered appearance in the suit and filed written statement. The petitioner also filed photocopy of a confiscate dated 4.11.1981 alleged to have been issued by the opposite party in a letter head of the company in the court on 17.2.1987. A copy of the said certificate was also supplied to the Lawyer of the company on the same day As per the said certificate the opposite party confirmed that there was no outstanding balance payable by the firm. Petitioner, however, did not file the original of the said certificate in the court. They retained the same with them. According to the opposite party, the said certificate dated 4.11.1987 was a false document made by the petitioners with a view to make wrongful gain. The opposite party also stated that the petitioners had also forged the signature and counterfeited the office seal. This was done in furtherance of their common intention to defraud the company. The aforesaid certificate was made, signed and sealed by the petitioners on 4th November, 1981 at Gauhati and thereby committed the offence of forgery with intention to make a wrongful gain and therefore, punishable under sections 467, 468, 469, 472 and 474 read with section 34 I.P.C.

(2.) The court after taking cognizance of the offence issued process under the aforesaid sections fixing 30.4.84 for hearing. Petitioners, in due course, entered appearance and filed a petition dated 2.4.87 contending, inter-alia, that the Court had no jurisdiction to take cognizance of the offence in view of 5. 195 (1) (b) (ii) of Cr. P.C. as the Money Suit No. 135/84 was pending before the Assistant District Judge Gauhati and the complaint case was brought out on the allegation that the forged document was filed by the petitioners in the aforesaid Money Suit and therefore the Court cannot take cognizance under the aforesaid section in view of the provisions contained in 5. 195 (1) (b) (ii) of the Cr. P.C. The Assistant District Judge after hearing the parties, by his order dated 15.6.87 rejected the prayer of the petitioners holding that the provisions under section 195 (b) (ii) is not attracted in the present case. Hence the present petition.

(3.) I have heard both sides Mr. Kumar, learned counsel for the petitioners submitted that as per the case of the opposite party, the document was a forged one which was field with the intention to cheat the person and in this type of case, it is the court in which the document had been filed can make a complaint in writing or by any other court subordinate to that court. Mr. Kumar further, submitted that admittedly the alleged forged document had been filed in the court of the Assistant District Judge, No. 1 and, therefore, under section 195 (1) (b) (ii) the Asstt. District Judge was the competent authority to institute the criminal case under the aforesaid sections and opposite party had no power or authority to institute the case in the present facts and circumstances. Hence, taking cognizance of the above offence by the Magistrate was without jurisdiction and further proceedings of the said criminal case would be an abuse of the process of the court and therefore, this court in exercise of the inherent power may quash the criminal proceedings. Mr. Bhattacharjee, learned counsel for the opposite party, on the other hand, submitted that under the facts and circumstances of the case, the provisions under section 195 (2) (b) (ii) are not attracted, opposite party can make the complaint. The Magistrate had definitely jurisdiction to take cognizance of the offence and this cannot be said to be an abuse to the process of the Court.