In Re: Ramaswamy Chetty

Govinda Menon, J.—The petitioner was convicted by the Court of the Sub-Magistrate, Madura Town, of an offence u/s 417 read with S.

511, Penal Code, and directed to be released under S. 562 (l), Criminal P. C, on his own bond for Rs. 500 to appear and receive sentence within

the period of one year and in the meantime to be of good behaviour, On appeal, the City First Class Magistrate, Madura, found that the offence

committed on the facts and circumstances placed before the Court was, not one of attempt to cheat but would amount to an offence u/s 471, Penal

Code. viz., using as genuine a forged document. On this finding, the appellate Court holding that the trial Court was not competent to try the

offence u/s 471, Penal Code, ordered that he should be retried by the appellate Court itself, as a First Class Magistrate and it is this order that is

now sought to be revised at the instance o the accused-petitioner.

The first point argued by Mr. Meenakshisundaram is that it is not open to the appellate Court to direct the trial of the case by itself for the

offence u/s 471, Penal Code, because the necessary result of the framing of a charge by the trial Court u/s 417, Penal Code, read with Section

511, Penal Code, is the discharge of the petitioner of an offence u/s 471, Penal Code. That being so, unless that discharge is set aside by proper

proceedings, it"" is not competent for any other Court to take cognizance o the offence. Secondly, it is urged that in any event the appellate Court

ought not to have directed the trial of the offender by itself, because it has already practically formed an opinion against the accused on the merits

of the case. The case against the petitioner as put forward in the Court of first instance is that he wrote three letters, Exs. F-1 , P-2 and F-3,

purporting to have been written by one Mr. Venkataramier requesting the issue of a free pass in the buses of Messrs. T. V. S, Co., Madura in

favour of the petitioner, as he was a Congress worker doing propaganda work in Nilakottai. The ostensible writer of these letters, Venkataramier,

denied having written any such letter and therefore it was that the appellant was charged with the offence of attempting to cheat.

The lower appellate Court has relied upon the decision in Emperor v. Maniclca, Gramani, 50 Mad. 228 : 6 Cr. l. J. 133 , for holding that it has

jurisdiction to try the case itself on the ground that the provisions of Section 423 (l)(b) do not preclude an appellate Court, when it reverses the

finding and sentence under appeal, from trying the offender itself, if the offence is one ordinarily triable by it. In Such cases, the appellate Court

takes cognizance u/s 190 (b), and not Section 190 (c). Mr. Meenakshisundaram contends that this decision cannot be applied to the facts of the

present case and even if it is so, it requires reconsideration. No authority of this Court questioning the correctness of the judgment of Benson J.

mentioned above has been brought to my notice. It has Stood the test of time and has been in vogue for more than forty years and there are no

circumstances which would justify me in coming to a conclusion other than what the learned Judge did. If u/s 433, Criminal P. C, the appellate

Court can commit a case to the Court of Session or direct its trial by a competent Court subordinate to it, it necessarily follows that u/s 628 ,

Criminal P. C., the superior Court is empowered to transfer the case to itself for trial. What the appellate Court has now done is practically to

incorporate be to the orders in the one, viz., sending the case for trial to some competent Subordinate Court and then transferring it to itself. There

is nothing wrong in the lower appellate Court holding that the petitioner should be tried by itself.

But the real question in the case is whether on the facts placed before the lower appellate Court, there is sufficient material for holding that the

petitioner is guilty of an offence u/s 471, Penal Code, viz., using as genuine any document which he knows or has reason to believe to be a forged

document. It is no doubt true that the document was not written by the person by whom it purported to have been written. But the mere fact that

the petitioner was found in possession of a forged document would not show that he knew or had reason to believe that it was a forged document.

Having carefully gone through the evidence in the case, I am not satisfied that there are sufficient materials on record to hold that the petitioner

knew that the letters produced by him were forged ones. Under the circumstances I find it difficult to hold that any useful purpose will be served by

a re-trial of the petitioner for an offence u/s 471, Penal Code. The order of the lower appellate Court directing a re-trial is set aside and the

revision petition is allowed. The order of the trial Magistrate is therefore restored.