Appln. for fraud in same execution court be possible

R.SHAH (Querist) 23 December 2010 This query is : Resolved
Dear Sir's

I have find one below citation which says as per my understanding that if fruad is played before court, same court can direct to filed compliant u/s209 & 210 IPC upon application of defendant an after conducting inquiry.

In my case she has took the session court order by concealment of her remarried and get order u/s125crpc, wherein stated that she has not remarried, she is entiled to get maintenance, till her remarry. but on that date she already got remarried.

in Execution proceeding pending before JMFC court aws stayed for her due to session court in rev.appln. after dismissed of my rev.appln. she file in JMFC court order of session judge and executed the arrears of maintenance in an application made onbehalf of her.
and also she has issued distress warrant of arrears amount which is beyond her remarried dates (i.e. almost 8months arrears beyond remaaired date). this facts is brought by me on record for cancellation of distres warrant and proceedings as fraud played on last date.

now i can filed another appln. before execution court for inquirying u/s209*210 IPC on fraud played with this court by concealing the true facts for issuing D/W of amount which is not entiled to her after remarried.while refering below case law.

kindly advise me.
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Equivalent citations: AIR 1970 Mys 267, 1970 CriLJ 1507, (1970) 1 MysLJ
Bench: C Honniah
K. Rathnam vs K.N. Somanna on 5/12/1969
ORDER
C. Honniah, J.
1. This is a revision petition filed by one Ratnam, under Section 439 of the Code of Criminal Procedure, to set
aside the order of the Principal Civil Judge, Mysore, dated 28-10-1965, by which he confirmed the order of
the Additional First Munsiff, Mysore.
2. The facts leading to the petition are briefly these: One Somanna, respondent herein, obtained a money
decree against Ratnam and two persons in O.S. No. 921 of 1963 on the file of the First Munsiff, Mysore.
Somanna filed execution case No. 677 of 1965 on the file of the Additional First Munsiff, Mysore. This was
in November 1905. Ratnam filed objections stating, inter alia, that the decretal amount had been adjusted on
18-7-1964 by an agreement between the parties and therefore the execution case was liable to be dismissed.
Somanna denied execution of the agreement and the decree being satisfied. The objection of Ratnam was
overruled by the learned Munsiff on the ground that the adjustment, even if true, as pleaded by him, was an
uncertified one. Thereafter, Ratnam filed an application Tinder Section 476 of the Code of Criminal
Procedure on 8-2-1966, requesting the Court to file a complaint under Section 209 of the Indian Penal Code in
the Court of the Magistrate, as Somanna fraudulently or dishonestly or with intent to injure or annoy, had
made a claim in Court of justice, which he knew to be false. Therein, he stated that in spite of the fact that the
decree had been satisfied as per the agreement dated 18-7-1964, Somanna had made a false claim, While
dismissing the application of Ratnam, this is what the learned Munsiff observed:
"What is necessary for the present purpose is to see whether any offence referred to in Section 195 (1) (b) or
(c) had been committed before this Court entitling this Court to hold a preliminary enquiry. From the
materials placed before the Court, I have nothing to hold that such an offence had been committed in relation
to a proceeding before this Court. To take action under Section 476, Criminal Procedure Code it is necessary
that an offence must be committed in the course of the judicial proceedings pending before the Court at that
time. Considering from any point of view, I am unable to hold that the alleged fraud, practised in execution
case 677/65, even if proved, would come within the scope of Section 476, Criminal Procedure Code. In these
circumstances, I do not feel it worthwhile going into the facts of this case any further."
The decision of the Munsiff was challenged by Ratnam in the Court of the Principal Civil Judge, Mysore. The
learned Civil Judge dismissed the appeal by stating:'
"The learned Munsiff has felt from the materials placed before him that an offence referred to in Section 195
(1) (b) or (c) had not been committed in relation to a proceeding before him. He has rightly come to this
conclusion. He was right in not holding any preliminary enquiry."
3. Section 476 (1) of the Code of Criminal Procedure is in the following terms:
"476 (1) -- When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or
otherwise, of opinion that it is expedient in the interests of justice that an enquiry should be made into any
offence referred to in Section 195, Subsection (1), Clause (b) or Clause (c), which appears to have been
committed or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any,
as it thinks necessary, record a finding to that "effect and make a complaint thereof in writing signed by the
presiding officer o the Court, and shall forward the same to a Magistrate of the first class having jurisdiction,
K. Rathnam vs K.N. Somanna on 5 December, 1969

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R.SHAH (Querist) 23 December 2010
SIR I HAVE RE-ATTACHED THE ABOVE CASE LAW DUE TO WHICH SOME PART AWS MISSING.
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Equivalent citations: AIR 1970 Mys 267, 1970 CriLJ 1507, (1970) 1 MysLJ
Bench: C Honniah
K. Rathnam vs K.N. Somanna on 5/12/1969
ORDER
C. Honniah, J.
1. This is a revision petition filed by one Ratnam, under Section 439 of the Code of Criminal Procedure, to set
aside the order of the Principal Civil Judge, Mysore, dated 28-10-1965, by which he confirmed the order of
the Additional First Munsiff, Mysore.
2. The facts leading to the petition are briefly these: One Somanna, respondent herein, obtained a money
decree against Ratnam and two persons in O.S. No. 921 of 1963 on the file of the First Munsiff, Mysore.
Somanna filed execution case No. 677 of 1965 on the file of the Additional First Munsiff, Mysore. This was
in November 1905. Ratnam filed objections stating, inter alia, that the decretal amount had been adjusted on
18-7-1964 by an agreement between the parties and therefore the execution case was liable to be dismissed.
Somanna denied execution of the agreement and the decree being satisfied. The objection of Ratnam was
overruled by the learned Munsiff on the ground that the adjustment, even if true, as pleaded by him, was an
uncertified one. Thereafter, Ratnam filed an application Tinder Section 476 of the Code of Criminal
Procedure on 8-2-1966, requesting the Court to file a complaint under Section 209 of the Indian Penal Code in
the Court of the Magistrate, as Somanna fraudulently or dishonestly or with intent to injure or annoy, had
made a claim in Court of justice, which he knew to be false. Therein, he stated that in spite of the fact that the
decree had been satisfied as per the agreement dated 18-7-1964, Somanna had made a false claim, While
dismissing the application of Ratnam, this is what the learned Munsiff observed:
"What is necessary for the present purpose is to see whether any offence referred to in Section 195 (1) (b) or
(c) had been committed before this Court entitling this Court to hold a preliminary enquiry. From the
materials placed before the Court, I have nothing to hold that such an offence had been committed in relation
to a proceeding before this Court. To take action under Section 476, Criminal Procedure Code it is necessary
that an offence must be committed in the course of the judicial proceedings pending before the Court at that
time. Considering from any point of view, I am unable to hold that the alleged fraud, practised in execution
case 677/65, even if proved, would come within the scope of Section 476, Criminal Procedure Code. In these
circumstances, I do not feel it worthwhile going into the facts of this case any further."
The decision of the Munsiff was challenged by Ratnam in the Court of the Principal Civil Judge, Mysore. The
learned Civil Judge dismissed the appeal by stating:'
"The learned Munsiff has felt from the materials placed before him that an offence referred to in Section 195
(1) (b) or (c) had not been committed in relation to a proceeding before him. He has rightly come to this
conclusion. He was right in not holding any preliminary enquiry."
3. Section 476 (1) of the Code of Criminal Procedure is in the following terms:
"476 (1) -- When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or
otherwise, of opinion that it is expedient in the interests of justice that an enquiry should be made into any
offence referred to in Section 195, Subsection (1), Clause (b) or Clause (c), which appears to have been
committed or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any,
as it thinks necessary, record a finding to that "effect and make a complaint thereof in writing signed by the
presiding officer o the Court, and shall forward the same to a Magistrate of the first class having jurisdiction,
and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged
offence is non-bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate and
may bind over any person to appear and give evidence before such Magistrate."
The other clauses of this Section are not relevant for disposal of this petition. The offences mentioned in
Clauses (b) and (c) of Section 195, Sub-section (1) of the Code are offences against public justice and relating
to documents and when such offences are committed in, or in relation to any proceeding in any Court, it is
solely within the discretion of that Court, whether a prosecution for these offences should be instituted or not,
because the right of a private person to lay a complaint for such offences has been taken away. It is now well
established that, before exercising its discretion to lay a com-plaint, the Court should find first that it is in the
interest of public justice that a complaint should be made and secondly that there is a reasonable probability of
conviction resulting from the complaint. Although no time limit for the institution of such prosecution is laid
down in the Section, prompt action is desirable and that delay on the part of a party in making his application
to move the Court to lay a complaint may, if unexplained, be fatal to the application. From the facts of this
case, there appears to be no such delay. Ratnam has taken prompt action in filing an application under Section
476 of the Code of Criminal Procedure to take action against Somanna for offences mentioned in Clauses (b)
and (c) of Section 195 (1) of the Code. The question is, whether on the facts a complaint should be made.
4. From the scheme of this section, it is clear that the legislature has thought it fit to enact that complaints
regarding offences against the administration of justice, which are committed in the Courts in a proceeding
before a Court, shall be made only by the Court concerned and in the words of Section 476 (1) of the Code
only when "it is expedient in the interest of justice" that a complaint should be made when the offence
"appears to have been committed." It is, therefore, clear that the Court, to which the complaint is sent for trial,
can presume as a matter of law that the complaining Court has, after necessary enquiry, satisfied itself that it
is in the interest of justice that there should be a prosecution of the person accused on the evidence available,
sufficient to make it appear that the offences complained of have been committed. If such a complaint is
made, it is the fundamental principle of justice that no order to the prejudice of the person shall be made
without his being heard. Before an order directing the filing of a complaint against the person is made, that
person must be heard and must be given opportunity for showing cause against the making of such an order.
The Munsiff, before whom the application was filed under Section 476, Criminal Procedure Code, on the
facts, was of the opinion that no offence was committed in relation to a proceeding before him and
consequently dismissed the application. That is also the view of the learned Civil Judge. The Courts below,
obviously, were not correct in coming to that conclusion, on the facts.
5. Mr. Viswanatha Rai, the learned Counsel for Ratnam, contended that the Munsiff was wrong in not having
held a preliminary enquiry and if he had done so, Ratnam would have placed material before the Court to
come to the conclusion that Somanna had committed offences referred to in Clause (b) of Section 195 (1) of
the Code of Criminal Procedure. Failure to hold a preliminary enquiry, according to him, has resulted in
injustice. Reliance was placed on the decision in M. Mohamed Kaka v. District Judge, Bassein, AIR 1937
Rang 62. In that case it was pointed out that when the order depended upon matters already on record, no
preliminary enquiry was necessary, but when it depended upon evidence of other facts, which were not to be
found on the record, in fairness to the person accused, a preliminary enquiry must be held and in that
preliminary enquiry he must be made aware of the allegations which were made against him and of the
materials upon which those allegations were based.
6. Section 476, Criminal Procedure Code states in terms that "such Court may, after such preliminary enquiry,
if any, as it thinks necessary, record a finding". The plain meaning of those words is that if an enquiry is held
it shall be held by "such Court", and this view is confirmed by the provisions of Section 476-B, which grants a
right of appeal against the finding of the Court. The filing of a complaint under Section 476 is a judicial act
and the order stating that a complaint will be made is a judicial order and furthermore, the enquiry upon which
that order is based is a judicial proceeding and must be of such a character as is compatible with the ordinary
procedure of the Court in question. It is unnecessary for the Court to make any preliminary enquiry at all, and
clearly there is no need for a preliminary enquiry when the Court takes action of its own motion and the
materials, upon which the order directing the filing of a complaint is based, are contained in the record of the
proceedings in the course of which the offences were committed.
7. If an application is made by a private party requesting the Court to lay a complaint against a person,
according to whom he has committed an offence in the course of the proceeding before the Court, it is for the
Court to find out whether any offence has been committed. If no offence has at all been committed, a
preliminary enquiry is not at all necessary. It is only when the Court feels that it is expedient in the interest of
justice that an enquiry should be made into any offence referred to in Section 195 (1) (b) or (c), which appears
to have been committed in or in relation to a proceeding in that Court. Such Court may, after such preliminary
enquiry, if any, as it thinks necessary, record a finding to that effect and made a complaint thereof.
8. The nature, method and extent of the enquiry are entirely in the discretion of the Court. But the filing of a
complaint under Section 476, Criminal Procedure Code is a judicial act, which is open to appeal and therefore
the Court should record at least the summary of the statements. Therefore, it is not proper to place any fetters
on the discretion of the Court in the matter of holding a preliminary enquiry.
9. The alleged adjustment, even according to Ratnam, was in the year 1964 and at that point of time no
proceeding, was pending before the Court. Therefore Mr. Venkatasubbaiah, the learned Counsel for Somanna,
contended that no offence was committed in relation to the proceeding in the Court. Under Sub-rule (3) to
Rule 2 of Order 21 of the Code of Civil Procedure, the executing Court was undoubtedly correct in not
recognising the alleged adjustment of the decree. From that it does not follow that the Court cannot hold an
enquiry under Section 476, Criminal Procedure Code Under Section 195 (1) (b) and (c), Criminal Procedure
Code, it is only by virtue of the fact that it has seisin of the execution proceedings that the complainant can
file a petition or proceed with a view to doing so under Section 476, Criminal Procedure Code. From the mere
fact that the executing Court cannot recognise the alleged adjustment for any purpose whatsoever, it cannot be
stated that; the Court cannot proceed under Section 476, Cri. Procedure Code to enquire whether there was
such an adjustment or not. If such a construction is put, the effect would be making those parts of the
provisions of Sections 209 and 210 of the Indian Penal Code, which relate to dishonestly making false claim
in Court and fraudulent execution of a decree, a mere nullity, for there could never be any prosecution for
such an offence. It is not necessary that the alleged adjustment which is not certified should take place while
the execution proceeding is pending in the Court. It often happens that after the decree, the judgment-debtor
may satisfy the decree even though no execution proceeding is pending and even though the adjustment is not
certified. But to say that the alleged adjustment must be certified when the proceeding is pending in the Court
would amount to denial to the party to claim the benefit of Section 476, Cr. P. Code. If a person makes a false
claim dishonestly in Court or fraudulently causes a decree to be executed against any person after it has been
satisfied, he is liable to be dealt with as stated in Sections 209 and 210, Indian Penal Code. There is no
reference in either of these sections as to the time factor of the commission of the offence.
10. The executing Court, in the instant case, though was correct in holding that the alleged adjustment could
not be recognised, was not precluded in going into the allegations made by Ratnam whether any offence had
been committed by Somanna. In this case, Ratnam wanted to adduce evidence and rightly the learned Munsiff
passed an order issuing summonses to the witnesses in order to make a preliminary enquiry. In the meanwhile,
the case was transferred to the Court of the Additional First Munsiff, Mysore, who, without applying his mind
to the relevant provisions of law, dismissed the application. This order and the order confirming the same by
the appellate Court cannot in any view be supported.
11. In the result, I allow this petition set aside the orders of the Courts below and direct the additional First
Munsiff, Mysore, to hold a preliminary enquiry as provided under Section 476, Criminal Procedure Code.
12. Petition allowed.