RAGHOSARAN BHARATHI Vs. GOBARDHAN OJHA

JUDGEMENT

(1.) This is an application in revision under Section 115 of the Code of Civil Procedure by two petitioners against whom the order for filing of the complaint by the Court of first instance has been upheld by the learned District Judge.

(2.) In order to dispose of the two points urged in support of this application, it is necessary to state the facts briefly. A money suit, being Money Suit No. 282 of 1957, was filed in the Court of the second Munsif of Siwan by the first petitioner against the Opposite party for recovery of a certain sum of money on the basis of a handnote said to have been executed by the latter on the 13th May, 1954. The defence, in short, was that he had not executed any hand-note and his further defence was that it seemed to him that a blank sheet of paper on which at one time in connection with some other matter the opposite party had given his thumb impression had been forged and fabricated into a hand-note to lay a false claim against him. The suit was dismissed and the dismissal was upheld by the appellate Court, Thereafter an enquiry under Section 476 of the Code of Criminal procedure was instituted. The trial Court filed a complaint against the petitioners as well as two more persons. The offences alleged to have been committed by the four persons were under Sections 193, 120-B, 463, 467 and 471 of the Penal Code. On appeal the learned District Judge took the view that the filing of a complaint against the four appellants before him under Section 193 of the Penal Code was illegal in view of the provisions of Section 479-A of the Code of Criminal Procedure : A complaint for an offence under that section could be filed only by following the procedure provided in Section 479-A. In. that view of the matter, the learned District Judge allowed the appeal of wo of the appellants against whom a complaint had been filed for their prosecution only under Section 193 of the Penal Code and allowed the appeal of these two petitioners in part by deleting the complaint filed against them for their trial for an offence under Section 193 of the Penal Code. The petitioners arc being proceeded under Sections 463, 467 and 471 of the Penal Code. They have moved this Court in revision for quashing this complaint too.

(3.) Mr. Nageshwar Prasad, appearing in support of this application has urged only two points; (1) that Dharamdeo Ojha, petitioner No- 2, was not a party to the suit. He was only said to be the scribe of the handnote. That being so in view of the provisions of Sections 478 and 193 (1) (c) of the Code of Criminal Procedure, the Court could not file a complaint as against him; and (2) that on the facts alleged and prima facie found, the petitioners, it could be said, have committed offences under Section 193 as also under Sections 463 and 467. If that be so, then the Court, by ignoring the provision of Section 479-A could not embark upon an inquiry under Section 476 of the Code and file a complaint.