FAKIR UPADHYA Vs. PADMALAV MOHANTY

JUDGEMENT

(1.) THIS is a civil revision against an order of the lower appellate Court who had set aside the judgment of the trial Court in appeal under Section 476 -B, Criminal P. C. The present petitioner was the defendant in the money Suit No. 407 of 1951 in the Court of the Munsif, Puri, brought by the plaintiff, who is opposite party in this revision. The suit was based upon a receipt purported to contain thumb impression and the signature of the defendant the present petitioner. The defence taken was that the receipt was a forged document and the transaction is mala fide. Prior to the case being heard, the plaintiff made default and allowed the case to be dismissed. The defendant having put in a petition under Section 476, Criminal P. C. for holding an enquiry against the plaintiff for offences under Ss. 209, 465 and 471, Penal Code, the trial Court ordered a complaint to be filed. The lower appellate Court, however, has set aside the order of the trial Court on the main ground that there is no express finding that it is expedient in the interests of justice that a complaint should be filed.

(2.) BOTH the Courts below have come to the concurrent finding that it appears that the document in question is a forged one. The plaintiff was also aware that the document was a forged one and wanted to make use of it in the suit. The plaintiff's plea was that prior to the institution of the suit, he had made over the real receipt to one Chintamani Mohapatra for collection of the dues from the defendant, and the 'said Chintamani Mohapatra having returned it to the plaintiff on the reason that no collection could be made, the suit was filed. The plaintiff having consulted his pleader Sri Haradhan Mitra believed that it was a forged document, and therefore, allowed the case to be dismissed for default. The plea, that the real document was handed over to Chintamani for collection and that Chintamani might have fabricated the document, has been strongly disbelieved by the Courts below. After these findings, in my opinion, the lower appellate Court was not justified in setting aside the order of the trial Court, merely on the ground that there was no specific finding that it is expedient in the interests of justice to file such a complaint.

(3.) THERE will be no order as to costs.