(Delivered by Madhavan Nair, J.)
This is an application to quash the commitment of accused 2 to 4 in Preliminary Register Case No. 13 of 1934 on the file of the 2nd Class Magistrate's Court, Wandiwash, in the following circumstances.
A suit on a promissory note alleged to have been executed by the complainant in the case was instituted against him before a Panchayat Court by the first accused. The writer of the promissory note is accused 2, and accused 3 and 4 are the attestors. For the purpose of this criminal miscellaneous petition it may be taken that the suit was dismissed by the Panchayat Court on the ground that the promissory note was a forgery. Subsequent to its dismissal, a complaint with respect to an offence under S. 467, Indian Penal Code, (forgery of a valuable security), was filed against the plaintiff in the case who is the first accused and accused 2, 3 and 4 who are, as already stated, the writer and the attestors of the promissory note. On a preliminary objection on behalf of the first accused, the case against him was not proceeded with for want of a complaint from the Panchayat Court to take cognizance of the offence, and an order was passed to that effect on 23rd November, 1934 dismissing the complaint against him. The preliminary objection on behalf of the first accused was based on S. 195(1)(c), Criminal Procedure Code, which says that,
“no Court shall take cognizance of any offence described in S. 463, Indian Penal Code, (forgery) etc., when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.”
As the Panchayat Court had not filed a complaint, it was argued that S. 195(1)(c) was a bar to proceedings against the first accused, as the offence is alleged to have been committed by him who was a party to a proceeding in the Panchayat Court, and this argument was accepted. The case against accused 2 to 4 was proceeded with, and they have been committed for trial to the Sessions Court.
On behalf of the petitioners, Mr. Jayarama Ayyar argues that no proceeding can be started against them also, because of the bar under S. 195(1)(b), Criminal Procedure Code. His argument is this: that the allegations contained in the complaint against these petitioners amount to an offence under S. 193, Indian Penal Code, and S. 195(1)(b) is a bar to the taking of cognizance of such a case without a complaint from the Court wherein the offence was committed. S. 195(1)(b), Criminal Procedure Code, says that:
“no Court shall take cognizance of any offence punishable under (certain specified sections of the Indian Penal Code of which one is S. 193), when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court except on the complaint in writing of such Court or of some other Court to which such Court is subordinate.”
The first paragraph of the complaint translated runs as follows:
“With the object of collecting money from me, accused 1 fraudulently brought into existence a bond dated 26th May 1931 purporting to have been executed by me, written by accused 2 and attested by accused 3 and 4, and has filed a suit thereon in the Srirangarajapuram Panchayat Court with a view to collect money, and I received summons and plaint copy.”
The other paragraphs are not relevant for the purpose of this petition. It is argued that it is clearly stated in this paragraph that the promissory note on which the suit before the Panchayat Court was instituted was fraudulently brought into existence by the parties concerned for the purpose of filing a suit and recovering the money from the complainant. If this is the true construction of the paragraph in the complaint, there can be no doubt that the offence alleged falls clearly within the provisions of S. 193, Indian Penal Code, and so, without a complaint from the Panchayat Court or of any Court to which such Court is subordinate, the Magistrate cannot take cognizance of the complaint. On behalf of the Public Prosecutor it is argued that the paragraph referred to is not susceptible of any other interpretation than this, viz., that the parties have concocted or fraudulently brought into existence a promissory note and have now filed a suit thereon with a view to recover money. The argument is that the object of concocting the promissory note may not necessarily have been to institute a suit to recover money. The promissory note was concocted and kept with the parties; and afterwards a suit was instituted, the concoction of the promissory note not being necessarily with a view to institute a suit upon it. If so, S. 193, Indian Penal Code, can have no application and it cannot be said that an offence under S. 193, Indian Penal Code, has been committed. We have had the original Tamil read to us. We must accept the construction put upon the paragraph by the learned Advocate for the petitioners. There is nothing in the complaint nor has any circumstance been brought to our notice to show that the object of the fraudulent creation of the promissory note was something other than the institution of the suit by which it was followed. We understand the paragraph to mean that the promissory note was brought into existence for the purpose of filing a suit and realizing the money from the complainant. If so, having regard to the fact that the promissory note was alleged to be false, the offence committed would fall under S. 193, Indian Penal Code, and sanction for taking proceedings (which is lacking in this case) of the Panchayat Court, or of such Court to which it is subordinate, is necessary to enable the Court to take cognizance of the offence. No doubt a case of forgery may be alleged against the parties. But it has been held in this Court in Ravanappa Reddi, In re that parties should not be allowed to evade the provisions of S. 195(1)(b), Criminal Procedure Code, by filing a complaint under another provision of the Penal Code if clearly an offence under S. 193 or any other section mentioned in S. 195(1)(b) has been committed. Following that decision we hold that the Magistrate was not entitled to take cognizance of the case, and the order of commitment must therefore be set aside. We accordingly quash that order.
The position reduces itself to this: here is an instance of persons who are alleged to have committed an offence under S. 467, Indian Penal Code. Having regard to the provisions of S. 195(1)(b) and the decision of this Court in Ravanappa Reddi, In re no proceedings can be started against them with respect to this offence. S. 77 of the Village Courts Act says that nothing in the Criminal Procedure Code is applicable to Village Courts except S. 403. If so, as my learned brother who has referred this case to a Bench states in his order:
“Section 476, Criminal Procedure Code, can have no application and nobody can be prosecuted for fabricating false evidence for use in a Panchayat Court. The combination of all these rulings, viz., Ravanappa Reddi, In re, Perianna Muthirian v. Vengu Aiyar(2) and Re Parameswaran Nambudri(3) results in this: here are three persons who seem to have forged a valuable security (an offence punishable with transportation for life), but they cannot be tried because the forgery was committed in order to fabricate evidence for use in a Panchayat Court.”
This position is certainly not satisfactory. In our opinion the difficulty can be got over only by suitably amending S. 77 of the Madras Village Courts Act, by providing that S. 476 also of the Criminal Procedure Code would be applicable to proceedings of the Panchayat Court.
N.R.ROrder quashed.