KISHAN SINGHANIA Vs. DILIP SINGHANIA

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 29-11-2006 passed by the Chief Judl. Magistrate, shillong in C. R. Case No. 1123 (S) of 2007 issuing process against the petitioner for the offences alleged against him under Section 468/420, I. P. C. , which according to him, is in contravention of the provisions of Section 195 (b) (i), Code of Criminal Procedure.

(2.) THE case of the petitioner, briefly stated, is that he is the tenant of the respondent in respect of the premises situate at Thana Road, Shillong and is running a hotel known as "m/s. Rajasthan Hotel" and that after the death of the father of the respondent, the family property was divided among the respondent and his brothers. The respondent was thereupon allotted the disputed premises as his share. The petitioner claims that he has been regularly paying the monthly rent to the respondent and had also paid on one occasion on 17-9-2000 a sum of Rs. 2,80,000/- as an advance rent, the receipt whereof was issued to him. Subsequently, his relationship with the respondent turned sour over trivial family matter which prompted the latter to issue ejectment notice through his pleader accusing him as defaulter and claiming rent arrears. One thing led to another and ultimately the respondent filed ejectment suit against the petitioner, which was finally dismissed upon his production of the rent receipt and on other grounds. The respondent, however, filed another ejectment suit being Title Suit no. 17 (SH) of 2005, which reached up to this Court and was remanded to the trial court for disposal. It is the further case of the petitioner that when the respondent failed to evict him by lawful means, he, with an ulterior motive, filed a criminal complaint being C. R. No. 1123 (S) of 2007 under S. 468/420, i. P. C. alleging that the said money receipt for Rs. 2,80,000/- was a forged document. At this stage, it may be noted that the said money receipt was said to have been produced before this Court in connection with C. R. (P) No. 3 (SH) of 2005. The petitioner contends that the Ld. Chief Judl. Magistrate overlooking the fact that the said money receipt had been produced in a judicial proceeding thereby betraying non-application of mind, by the impugned order took cognizance of the aforesaid offences and issued process against him. Contending that the learned Chief Judicial Magistrate has no jurisdiction to entertain the criminal complaint, the petitioner prays for quashing the impugned order and the connected proceeding.

(3.) MR. A. S. Siddiqui, the learned counsel for the petitioner, submits that on the undisputed facts on record that the money receipt was produced before this Court and nowhere else, the respondent has no locus standi to file the complaint petition in view of the bar imposed by Section 195 (1) (b) (ii)Code of Criminal Procedure. Drawing my attention to Section 195, the learned senior counsel maintains that it is the Court concerned, and not the respondent, which can file the complaint since the offence complained of is an offence punishable under section 193, Indian Penal Code. Moreover, submits further the learned senior counsel, the question whether the money receipt in question is a forged document or not is an issue yet to be decided by the trial Court in the pending suit, and it cannot be presumed at this stage that the document in question is a forged document. The learned senior counsel, therefore, strenuously urges this court to quash the impugned order as well as the related criminal proceeding. On the other hand, Mr. K. S. Kynjing, the learned counsel for the respondent, justifies the impugned order as well as the connected proceeding and contends that the money receipt in question was undoubtedly produced before this Court but was never taken into account by this Court for purpose of adjudication of the revision petition in question. According to the learned senior counsel, the true test for invoking the bar imposed by Section 195 of the Code is not whether the document in question was produced before a Court but rather whether the document was in fact taken into consideration or actually used by the concerned court for the purpose of adjudication of the issues or controversy involved in the case and adopting this test, it cannot even remotely be said that the document in question was used by this Court in disposing of the revision petition. So understood, contends the learned counsel, the embargo imposed by Section 195 cannot be pressed into service for non-suiting the respondent. The learned senior counsel, therefore, submits that this revision petition is absolutely devoid of merits, and is liable to be dismissed with costs.