DWARKAPRASAD PYARELAL Vs. EMPEROR

JUDGEMENT

(1.) THE applicant sued on a bond in the Small Cause Court, Janjgir, and relied on a payment endorsed on the bond to save limitation. It was held that the date of payment had been fraudulently altered by the plaintiff in order to save limitation, and in proceedings under Section 476, Criminal P.C., the Court ordered that the plaintiff should be prosecuted under Sections 193 and 471, Penal Code. On appeal the order for prosecution under Section 471 alone was upheld. Section 476, Criminal P.C., provides that, when a Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into certain offences, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing. The learned Judge of the Small Cause Court did little beyond referring to his judgment in the civil case, but I think it is obvious that he thought that there was a prima facie case against the applicant and that it was expedient in the interests of justice that an inquiry should be made into the offence. Although these points were specifically raised before the Additional District Judge, he gave no finding on the question whether an inquiry was necessary in the interests of justice or whether a prima facie case had been made out.

(2.) THERE has been some difference of judicial opinion on the point, but I respectfully agree with the decision of Rankin C.J. in Nawabali Khan v. Chandrakanta Banerji (1931) 18 AIR Cal 760 in which he explained his previous decision in Keramat Ali v. Emparor (1928) 15 AIR Cal 862 and held that there should not necessarily be an interference in revision merely because the words of Section 476 have not been copied out. To the same effect is the decision in Superintendent and Remembrancer of Legal Affairs Bengal v. Ijjatulla Paikar (1931) 18 AIR Cal 190. I respectfully agree with the decision in Ramayya In re (1933) 20 AIR Mad 67 that the Court should record a finding that; it is expedient in the interests of justice that an inquiry should be made, but I do not think that the absence of such a finding means that the point has not been considered and that it is necessary to interfere in revision. In Balgovind v. Mt. Jamnabai (1935) 22 AIR Nag 199 it was stated that it was not incumbent on the Appellate or Revisional Court to assume that the first Court had properly considered the matter and come to a correct conclusion, but that does not mean that the Court must assume that the first Court has not considered the matter. It is clear that the Appellate Court considered that an inquiry was necessary in the interests of justice and that a prima facie case had been made out, although it is unfortunate that it omitted to record a finding on either point. In the circumstances therefore I decline to interfere in revision. The application is dismissed with costs. No counsel's fee.