SHANTARAM SHARMA Vs. KANAI LAL JATIA

JUDGEMENT

(1.) This is a Rule obtained by the petitioner Shanta Ram Sharma calling upon the Chief Presidency Magistrate and the opposite parties to show cause why an order of transfer made by him on 25 March should not be set aside. The complainant is a munim gomastha of a firm known as Dilshukhroy Sagarmull and the opposite parties are members of a firm known as Mahaliram Ramjidas, opposite party 1 being a partner and opposite party 2 being a gomastha of that firm. It appears that Dilsukhroy Sagarmull instituted a suit in 1930 against the firm of Mahaliram Ramjidas on the allegation, that the plaintiffs had advanced a lac of rupees to the defendants. Among other defences taken was that the sum had never in fact been advanced and that if it had been advanced the borrower was not the firm of Mahaliram Ramjidas but a deceased partner, Gajanand Jatia. In the course of the litigation the plaintiff obtained an order for affidavit of documents. The defendants filed an affidavit, disclosing certain entries made in the latter part of 1928 which, it is said, supported their case that the advance had never been made. On various dates in March 1931 the plaintiffs inspected the documents disclosed by the defendants including the entries I have mentioned. Owing to the course the litigation took it became unnecessary for the Court to decide whether or not the books of the defendant were genuine on this point and the suit was dismissed with costs.

(2.) The defendants then successfully applied to my learned brother Buckland, J., who had tried the case to make a complaint to the Chief Presidency Magistrate that in giving evidence in the case Sagarmull, a partner of the complainant firm, had wilfully given false evidence and thereby committed an offence punishable Under Section 193, I. PC. The Chief Presidency Magistrate issued processes, tried the case and convicted Sagarmull. Sagarmull appealed to this Court but his appeal was dismissed. He has now applied for special leave to appeal to His Majesty in Council and I understand that he is now on bail pending the decision of the Privy Council. In the complaint filed on 20 March 1933 it is alleged that the entries in the cash books of 1928-29, which were inspected in the circumstances I have mentioned, are forgeries. The complaint does not state on what materials this allegation is based and merely alleges that the complainant has since made further enquiries into the whole affair with the result which I have indicated. Nothing is stated in the complaint about the conviction of Sagarmull for perjury and it appears to me that the complaint is most disingenuous and is intended to give an impression that the proceedings before Buckland, J., terminated in an amicable compromise.

(3.) On the allegations made in the complaint the additional Chief Presidency Magistrate on the application of the complainant issued a search warrant for the books which it is alleged were forged. The opposite parties at once went before the Additional Presidency Magistrate and on their undertaking to produce the books he stayed execution of the search warrant and subsequently set it aside. Emboldened by their success the accused then presented a petition to the Chief Presidency Magistrate asking him to transfer the case from the file of the Additional Presidency Magistrate to his own file on the ground that it would be more convenient and expeditious for the Chief Presidency Magistrate to deal with the matter himself. The Chief Presidency Magistrate heard the parties and made an order Under Section 528, Criminal PC, transferring the case to his own file. The reasons he has given are that he considers that by suppressing the fact of the conviction of Sagarmull the complainant wrongfully obtained the search warrant which the learned Additional Presidency Magistrate would have declined to issue ex parte had he been in possession of the whole history of the previous relations between the parties. He also states that inasmuch as the accused persons will have had no locus standi before the Additional Presidency Magistrate or before any other Magistrate who deals with the case Under Chapter 16, Criminal PC, he apprehends that advantage will again be taken of the Additional Presidency Magistrate's lack of acquaintance with the details of the case. He states that as be is aware of the whole history of the litigation he thinks that in the interests of justice he should hold the enquiry himself.