RAJAGOPAL NAIDU AND ANOTHER Vs. AGIMOOLA PADAYACHI
LAWS(MAD)-1970-10-11
HIGH COURT OF MADRAS
Decided on October 15,1970

Rajagopal Naidu And Another Appellant
VERSUS
Agimoola Padayachi Respondents

JUDGEMENT

Somasundaram, J. - (1.) THIS is a petition for quashing the committal (sic)who are two in number for (sic)offence under Section 417, 465, 467 and 471 of Indian Penal Code The committal was on a private complaint filed by one (sic) Padayachi the paternal uncle of the second(sic) The complaint was that (sic) brought into existence (sic)in the name of the first (sic)3rd April 1962 (Ex. P.2) (sic)September 1962 Ex P.1, (sic) December 1964 (Ex. P. 3) (sic)of the Respondent's (sic) to false presentation (sic) come to know (sic) Ex.P. 17 signification (sic)from the (sic) (P.W. 4) demanding (sic) of the principle and interest due ON Ex P. 3. The Respondent then filed the complaint before the First Class Magistrate at pondicherry. His thumb impressions were taken by the court and sent to the expert P.W. 2 for comparison and opinion. The latter opined that the thumb impression In Ex. P. 3 is not that of the Respondent P.W. 1 who was an ex -Notice, deposed to the registration of the document in the year 1964. The Respondent as P.W. 3 swore that be never affixed his thumb impression in Ex. P. 3 and that he never received any amount as stated therein. when questioned by the court, the Petitioners stated that the documents were executed for consideration by P.W. 3. Observing that a prima facie case had been made out, the learned Magistrate has committed the Petitioners to stand their trial before the Court of Sessions in that place. The Petitioners contend that this committal could not be sustained.
(2.) PRIMA facie there is evidence to show that the mortgage deed Ex. P. 3 was not executed by P.W. 3. The expert P.W. 2 has deposed, on a comparison of the finger impressions, that the one In Ex P. 3 is not that of P.W. 3. But, on behalf of the Petitioner, it is contended that there is no evidence to show that the forgery in question was in fact done by the Petitioners. The second Petitioner is not a stranger; P.W. 3 is his paternal uncle. P.W. 1, the ex -Nature, has deposed that both these Petitioners were present at the time when the documents were executed. His evidence is that one Adlmoola Padayachi affixed his thumb impression. The second Petitioner should have known that the documents were not being executed by his paternal uncle and the evidence of P.W. 1 is that it was he who assisted the executants in affixing the impression at that time. The question as to whether the first Petitioner had knowledge is a matter which will have to be considered with reference to the attendant circumstances and the evidence that might be adduced in the trial in court. On behalf of the Respondent, it is urged that these acts were done by a regular conspiracy on the part of both the Petitioners. The Sessions Court will have to consider the evidence available and frame the necessary charges against the Petitioners. Suffice it to say, that there is prima facie evidence justifying a committal, and there is no ground for quashing the committal, as prayed for by the Petitioners. It is next contended on behalf of the Petitioners that the facts as alleged disclose an offence under Section 193 I P.C. falling within the purview of Section 195 of the Code of Criminal Procedure which contemplates a complaint by court.
(3.) THE procedural aspects alone were filed. The Judge does not apply his mind to form an opinion at to the genuineness of the document. The first Petitioner had initiated sale proceedings on this document is the court of first instance and then it was brought to the notice of the court by the Respondent that the document was a forged one. He prayed for the stay of the proceedings pending disposal of this criminal case, which he had filed before the First Class Magistrate. The sale proceedings were stayed under Article 250 of the French Code of Civil Procedure, which says that when any document is stated to be forged, the procedure which the Civil court has to follow is only to stay all farther proceedings unless the Judge finds that the case could be decided in -dependently of the forged document. Therefore, in these circumstances, there was no occasion for determining the question about the falsity of the document in these stages, so as to justify a complaint by the court. The learned Additional Assistant Sessions Judge has correctly negatived the contentions to this effect advanced by the Petitioners.;


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