K.V.R. Iyyangar Vs. State of Andhra Pradesh and anr. - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.ordersardar ali khan, j.1. this is a petition to quash all further proceedings in c.c. no. 579 of 1987 on the file of xvi metropolitan magistrate, hyderabad.2. the petitioner herein is a-2 in c.c. no. 579 of 1987. a private complaint has been filed by one s.p. radhakrishna against smt. d.l. bhavani (a-1) and the petitioner under sections 468 and 471 read with section 120b of the indian penal code. the matter is referred to the station house officer under section 156(3), cr.p.c. for investigation and report. the case has been registered as crime no. 93 of 1987 and a charge sheet has been filed under the above sections.3. the main ground on the basis of which the quashing of the proceedings in c.c. 579 of 1987 is urged is that a forged document has been filed before the vi metropolitan magistrate, hyderabad in another case and the same is not triable by the xvi metropolitan magistrate in view of the provisions of section 195(1)(b), cr.p.c. it may not be out of place to reproduces. 195(1)(b), cr.p.c. which is in the following terms:195.(1) no court shall take cognizance- (a)....(b) (i) of any offence punishable under any of the following sections of the indian penal code (45 of 1860), namely sections 193 - 196 (both inclusive), 199, 200, 205 - 211 (both inclusive) and 228, when such offence is alleged to have been committed in or in relation to any proceeding in any court, or;(ii) of any offence described in section 463, or punishable under section 471 section 475 or section 476 of; the said code, when such offence is alleged to have been committed in respect of a document produced or given in evidence, in a proceeding in any court, or(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-cl. (i) or sub-cl. (ii), except on the complaint in writing of that court, or of some other court to which that court is subordinate.4. the learned counsel for the petitioner argues that there is a bar for taking cognizance. of the offence punishable under sections 468 and 471 of the indian penal code when such offences are alleged to have been committed in respect of a document produced in a court except on the complaint in writing of that court. it is, however, evidence in this case that the document which has been filed before the vi metropolitan magistrate is a copy containing a recital that a sum of rs. 1,80,000/- is payable by the complainant in c.c.579/87 to smt. d.l. bhavani it is to be taken into consideration that under section 62, explsnation-2 of the evidence act it is provided that where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography each is primary evidence of the contents of the rest but where they are all copies of a common original, they are not primary evidence of the contents of the original. it is true as argued by the learned counsel for the petitioner in this case that the provisions of section 62 will not have a direct bearing on this matter as that section deals only with the admissibility of a document. nevertheless, it cannot be overlooked that a photostat copy or a xerox copy of a document is not considered as primary evidence of the original document but is at the most primary evidence of a similar photostat or xerox copy of such a document. now, it is beyond all doubt that the document' which has been filed before the vi metropolitan magistrate is a xerox copy and not the original containing the recital of the liability of the complainant to pay a sum of rs. 1,80,000/- to smt. d.l bhavani. therefore, the further question that arises is, can it be determined in the absence of the original document as to whether that document has been forged or not. in order to establish an offence of forgery under section 463, ipc which is punishable under section 465, ipc thepresenceof the original document before the court concerned, is necessary. if the original document is not before the court and what is produced is merely a copy albeit a photostat copy still it cannot be determined as to whether the document has been forged or not. there are many intricacies attached to establish forgery of a document, to mention only a few, for instance, the style of the signature of a person, the alleged pressure on the pen at the time when it was signed, the variation in the ink if there are other petitions of ink written in the same document, the quality of the paper used and seen so forth. all these things necessitate that the original document should be before the court to establish the offence of forgery. a photostat copy which has come into being as a result of improvement in scientific photography of the documents cannot reflect all these matters. the privy council in the decision in sanmukh singh v. the king air 1950 pc 31 : 51 cri lj 651 has categorically held that there the document in respect of which a charge of forgery had been laid against the accused had not itself been produced or given in evidence in certain proceedings but on the contrary a copy of it had been produced, the absence of complaint under section 195(1)(c) criminal procedure code cannot operate as a bar to the trial of the accused. the learned counsel for the petitioner has stated that at the time when the decision was made by the privy council in 1950, the facility of a photostat copy or xerox copy was not in vogue and now that the photostat copies have come into being, it cannot be said that such photostat copies do not form primary evidence of the original document. i am afraid i do not see much force in this argument for the simple reason that it is not at all necessary even with the advance technique of a photostat copy that it should be identical in all respects of ink, of texture of the paper, of the style of writing of a person not to mention the quality of the paper itself which has been used. therefore, the logic of the privy council's decision still stands the test of time and in the absence of an original the provisions of section 195(1)(b) of the code of criminal procedure cannot be deemed to have come into play to divest the jurisdiction of the xvi' metropolitan magistrate, in this case. another decision which is squarely on this point, is contained in modumal in re (1966) 2 andh wr 89, gopal rao ekbote, j. as he then was in that case has categorically held:it is plain that sanction of the superior court or the complaint of the court is necessary hen the offences referred to in that clause 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. the two vouchers, in respect of which it is alleged that the offence of forgery is committed by the accused, have not been produced or given in evidence in', the small causes court in the said two suits.5. the jurisdiction of the xvi metropolitan magistrate would be deemed to have been divested only in case the original document was produced before the' vi metropolitan magistrate document in the proceedings before that court. the xerox copy of the document in question having been lodged in the vi metropolitan magistrate court, the xvi metropolitan magistrate cannot be restrained from exercising the jurisdiction properly vested in him. the provisions of section 195(1)(b) of the code of criminal procedure are not applicable to this case for the reasons which has been discussed above.6. in the result, the criminal petition is dismissed.

Judgment:
ORDER

Sardar Ali Khan, J.

1. This is a petition to quash all further proceedings in C.C. No. 579 of 1987 on the file of XVI Metropolitan Magistrate, Hyderabad.

2. The petitioner herein is A-2 in C.C. No. 579 of 1987. A private complaint has been filed by one S.P. Radhakrishna against Smt. D.L. Bhavani (A-1) and the petitioner under Sections 468 and 471 read with Section 120B of the Indian Penal Code. The matter is referred to the Station House Officer under Section 156(3), Cr.P.C. for investigation and report. The case has been registered as Crime No. 93 of 1987 and a charge sheet has been filed under the above sections.

3. The main ground on the basis of which the quashing of the proceedings in C.C. 579 of 1987 is urged is that a forged document has been filed before the VI Metropolitan Magistrate, Hyderabad in another case and the same is not triable by the XVI Metropolitan Magistrate in view of the provisions of Section 195(1)(b), Cr.P.C. It may not be out of place to reproduces. 195(1)(b), Cr.P.C. which is in the following terms:

195.(1) No court shall take cognizance- (a)....

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely Sections 193 - 196 (both inclusive), 199, 200, 205 - 211 (both inclusive) and 228, when such offence is alleged to have been committed in or in relation to any proceeding in any court, or;

(ii) of any offence described in Section 463, or punishable under Section 471 Section 475 or Section 476 of; the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence, in a proceeding in any court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-cl. (i) or sub-cl. (ii), except on the complaint in writing of that court, or of some other court to which that Court is subordinate.

4. The learned Counsel for the petitioner argues that there is a bar for taking cognizance. of the offence punishable under Sections 468 and 471 of the Indian Penal Code when such offences are alleged to have been committed in respect of a document produced in a Court except on the complaint in writing of that Court. It is, however, evidence in this case that the document which has been filed before the VI Metropolitan Magistrate is a copy containing a recital that a sum of Rs. 1,80,000/- is payable by the complainant in C.C.579/87 to Smt. D.L. Bhavani It is to be taken into Consideration that under Section 62, Explsnation-2 of the Evidence Act it is provided that where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography each is primary evidence of the contents of the rest but where they are all copies of a common original, they are not primary evidence of the contents of the original. It is true as argued by the learned Counsel for the petitioner in this case that the provisions of Section 62 will not have a direct bearing on this matter as that section deals only with the admissibility of a document. Nevertheless, it cannot be overlooked that a photostat copy or a xerox copy of a document is not considered as primary evidence of the original document but is at the most primary evidence of a similar photostat or xerox copy of such a document. Now, it is beyond all doubt that the document' which has been filed before the VI Metropolitan Magistrate is a xerox copy and not the original containing the recital of the liability of the complainant to pay a sum of Rs. 1,80,000/- to Smt. D.L Bhavani. Therefore, the further question that arises is, can it be determined in the absence of the original document as to whether that document has been forged or not. In order to establish an offence of forgery under Section 463, IPC which is punishable under Section 465, IPC thepresenceof the original document before the Court concerned, is necessary. If the original document is not before the Court and what is produced is merely a copy albeit a photostat copy still it cannot be determined as to whether the document has been forged or not. There are many intricacies attached to establish forgery of a document, to mention only a few, for instance, the style of the signature of a person, the alleged pressure on the pen at the time when it was signed, the variation in the ink if there are other petitions of ink written in the same document, the quality of the paper used and seen so forth. All these things necessitate that the original document should be before the Court to establish the offence of forgery. A photostat copy which has come into being as a result of improvement in scientific photography of the documents cannot reflect all these matters. The privy Council in the decision in Sanmukh Singh v. The King AIR 1950 PC 31 : 51 Cri LJ 651 has categorically held that there the document in respect of which a charge of forgery had been laid against the accused had not itself been produced or given in evidence in certain proceedings but on the contrary a copy of it had been produced, the absence of complaint under Section 195(1)(c) Criminal Procedure Code cannot operate as a bar to the trial of the accused. The learned Counsel for the petitioner has stated that at the time when the decision was made by the Privy Council in 1950, the facility of a photostat copy or xerox copy was not in vogue and now that the photostat copies have come into being, it cannot be said that such photostat copies do not form primary evidence of the original document. I am afraid I do not see much force in this argument for the simple reason that it is not at all necessary even with the advance technique of a photostat copy that it should be identical in all respects of ink, of texture of the paper, of the style of writing of a person not to mention the quality of the paper itself which has been used. Therefore, the logic of the Privy Council's decision still stands the test of time and in the absence of an original the Provisions of Section 195(1)(b) of the Code of Criminal Procedure cannot be deemed to have come into play to divest the jurisdiction of the XVI' Metropolitan Magistrate, in this case. Another decision which is squarely on this point, is contained in Modumal In Re (1966) 2 Andh WR 89, Gopal Rao Ekbote, J. as he then was in that case has categorically held:

It is plain that sanction of the superior court or the complaint of the Court is necessary hen the offences referred to in that clause 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. The two vouchers, in respect of which it is alleged that the offence of forgery is committed by the accused, have not been produced or given in evidence in', the Small Causes Court in the said two suits.

5. The jurisdiction of the XVI Metropolitan Magistrate would be deemed to have been divested only in case the original document was produced before the' VI Metropolitan Magistrate document in the proceedings before that court. The xerox copy of the document in question having been lodged in the VI Metropolitan Magistrate Court, the XVI Metropolitan Magistrate cannot be restrained from exercising the jurisdiction properly vested in him. the provisions of Section 195(1)(b) of the Code of Criminal Procedure are not applicable to this case for the reasons which has been discussed above.

6. In the result, the criminal petition is dismissed.