Madras High Court
R.Mahaboob Batcha vs A.Soundaram (Died) on 8 December, 2011
Author: S.Tamilvanan
Bench: S.Tamilvanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/12/2011 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN Crl.R.C (MD).No.480 of 2011 1. R.Mahaboob Batcha 2. A.Annal Ahamed Ibrahim ... Petitioners vs. 1. A.Soundaram (Died) 2. Sivakami ... Respondent Criminal Revision Petition filed under Sections 397 and 401 Cr.P.C against the order, dated 26.04.2011 passed in unnumbered I.A in the suit in O.S.No.293 of 2008 and Application in A.No.576 on the file of the District Munsif, Madurai. !For petitioners... Mr.G.Aravinthan ^For respondent ... Mr.J.Barathan :ORDER
This Criminal Revision has been preferred, challenging the order, dated 26.04.2011 passed in unnumbered I.A in O.S.No.293 of 2008 and Application in A.No.576 on the file of the District Munsif, Madurai.
2. Heard the learned counsel appearing for the petitioners as well as the learned counsel appearing for the contesting respondent.
3. It is seen that the petitioners herein are the defendants in the suit in O.S.No.293 of 2008 and the unnumbered Interlocutory Application was filed by the petitioners / defendants against the second respondent herein and sought an order to conduct preliminary enquiry and to prefer a criminal complaint against the second plaintiff under Section 340 r/w 195 (b) Cr.P.C. In the accompanying affidavit, the petitioners have stated that the second respondent herein has committed certain acts, which would constitute offence and therefore, the Court below has to pass an order by conducting preliminary enquiry against the second respondent, who is the contesting plaintiff in the suit in O.S.No.293 of 2008 and also against her brothers and other persons of abutters of the alleged offence. After hearing both sides, the Court below, by the impugned order dismissed the said petition. Aggrieved by which, this revision has been preferred.
4. Learned counsel appearing for the petitioners submit that the copy of the plaint available in the typed set of papers would show that the signatures of Sivakami available in the plaint are different and varying from the signatures available in her deposition and hence, complaint was given by the defendants in the form of an application, seeking an order to hold preliminary enquiry, however, the same was not even numbered, but rejected by the Court below, hence, the petitioners have preferred the revision.
5. Per contra, learned counsel appearing for the respondent submit that there was no offence committed by the second respondent herein, since the said Sivakami is an illiterate woman, she could only sign, there is some minor variation in her signatures. The petitioners have not raised any objections while the second respondent was deposing evidence as witness before the Court below and there was no allegation of impersonation. According to the learned counsel for the respondent, the said unnumbered application filed by the petitioners before the Court below is a clear abuse of process of the Court and law. It is seen that the unnumbered application was filed before the Court below, on the ground that there was some variation found in the signatures of Sivakami, the contesting respondent herein, who was examined as witness. A xerox copy of the certified copy of the plaint and the deposition of Sivakami, the second respondent herein have been filed in the typed set of papers.
6. Learned counsel appearing for the respondent submitted that since the second respondent Sivakami is not an educated woman and she could only sign and she does not read and write, there is some slight variation in her signatures, which would not constitute any offence. Had there been any impersonation committed by her or any other person, the petitioners have raised their objections at the time of her depositing evidence and further the petitioners have not specifically alleged any impersonation, but they have simply stated that some offence could been committed and for which, they have asked preliminary enquiry has to be ordered by the Court below. It is seen that the relief sought for in the petition is so vague and not making out any criminal case against the second respondent herein or any other person and further, the petitioners have no locus standi to challenge the signature of the respondent, while she has not disputed her signature available in the plaint.
7. Learned counsel appearing for the respondent also drew the attention of this Court to certain portions of the complaint, wherein the petitioners have raised defamatory averments against Advocates, Mr.C.Subramanian and Mr.S.K.Ravi Shankar and their office juniors and also against the advocate clerk of the respondent, stating that they have committed offence by way of forgery at their advocates' office. The learned counsel for the respondent submitted that the wild defamatory allegations were raised by the petitioners, without any basis. According to him, there is no necessity for the advocates and their clerk to put the signatures of their client, who has not disputed the signatures as contesting respondent herein.
8. In the copy of the complaint available at paragraph number 6 at page numbers 17 and 18 of the typed set, the petitioners have stated that Mr.C.Subramani, Mr.S.K.Ravi Shankar, Advocates with the assistance of their juniors and office assistants had made forgery in the vakalath, plaint and petitions. The Court is of the view that the allegations raised against the said Advocates and their juniors are wild and serious in nature against their professional conduct. It could not be disputed that Advocates cannot claim any privilege under the penal law. However, raising improper and defamatory allegation against the Advocates, as if they affixed forged signatures of their own client in the vakalath, plaint and petitions with the assistance of their junior lawyers and office clerk would be condemnable, as the said allegation exfacie illegal, since, vakalath, plaint and the petition could not be signed on the same day and further, there could be no possibility for the petitioners to go to the office of the Advocates appearing for the respondent, to notice the alleged forging committed by them jointly. Had the allegation of the petitioners is true, they could have given criminal complaint only against the advocates and their clerk or the other person stated by them and not the respondent herein. As contended by the learned counsel for the respondent, there is no necessity for the said Advocates and their clerk to make forged signatures of their client, who is contesting in the revision. As submitted by the learned counsel appearing for the respondent herein, the allegation raised by the petitioners against some of the Advocates, their juniors and also their advocate clerk is totally false and self-contradictory. Hence, it is open to the aforesaid Advocates and their clerk against whom defamatory allegations are raised to take proper action against the persons, who have raised unreasonable wild allegation of forgery against them and their juniors and advocates' clerk, touching their professional conduct.
9. It is submitted by the learned counsel appearing for the respondent that the revision itself is not legally maintainable, since the impugned order has been passed under Section 340 of the Code of Criminal Procedure. Section 340 deals with the procedure in the cases specified under Section 195, whereby a witness or any other person may file complaint in relation to an offence punishable under Section 195-A of the Indian Penal Code.
10. As per Section 195 (A) IPC, whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested with intent to cause that person to give false evidence shall be punished and further, the order so passed under Section 340 Cr.P.C is also an appealable order under Section 341 of the Code and the said legal position has not been disputed by the learned counsel appearing for the petitioners.
11. It is a settled proposition of law that when appeal provision is available, revision is not maintainable. As the impugned order has been passed under Section 340 Cr.P.C., the petitioners could have preferred appeal under Section 341 Cr.P.C and they are not entitled to prefer the revision, as appeal remedy is available under the Code. In the aforesaid circumstances, I am of the view that the criminal revision petition is liable to be dismissed.
12. In the result, this Criminal Revision Petition is dismissed with costs. It is also made clear that it is open to the Advocates and their clerk against whom wild allegations have been raised, to take appropriate legal action against the persons responsible for the defamatory statement.
tsvn To The District Munsif Madurai.