Patna High Court
Radhe Kishun vs Emperor on 7 January, 1929
Equivalent citations: 116IND. CAS.753, AIR 1929 PATNA 157
JUDGMENT James, J.
1. It appears that three brothers of the Teli caste, Bhukhan, Lachuman and Gulab, had transactions with the zemindar of Parba in Ranchi District. When the zemindari came under the management of the Encumbered Estate Department, a considerable amount was owing to this family from the estate and the Manager paid part of the debts direct, while he deposited the balance in the treasury by various instalments, some in the name of Bhukhan Sahu alone and some to the credit of the three brothers. The three brothers died many years ago, between 1962 and 1967 Sambat but a sum over four thousand rupees was lying to their credit at the Ranchi Treasury. Between 1922 and 1926, these sums were withdrawn on eight applications filed by men who presented the deceased, Bhukhan Sahu and his two brothers. A Pleader's clerk named Banwari Lal procured these withdrawals, and in several instances a mukhtar named Radhe Kishun made the formal identification of the applicants. In the case with which we are immediately concerned, a deposit of two sums of Rs. 268 and Rs. 331-4-0 was made by the Manager of the Encumbered Estate on 9th July, 1919, to the credit of the three brothers. On 29th July, 1925, a petition purporting to be of the three brothers was filed at the Ranchi Collectorate, praying for the withdrawal of the sum of Rs. 599-4-0 and payment was in due course made to the applicants who were identified by the mukhtar Radhe Kishun. The fraud came to light in 1927, when the real surviving members of the Teli's family applied for the money in deposit. When the matter was then investigated it was discovered that one of the men who obtained the payment of Rs. 599 4-0 in 1925, was a certain Deolal Ahir who had personated Gulab Sahu. This man was prosecuted and in due course he was committed for trial on charges framed under Sections 419, 420, 466 and 468, Indian Penal Code, while the Pleader's clerk Banwari Lal and the mukhtar Radhe Kishun were charged with abetment. Banwari Lal died after commitment and before trial, but the Assistant Sessions Judge of Ranchi convicted Deolal Ahir and Radhe Kishun. He sentenced Deolal Ahir to five years' rigorous imprisonment, and Radhe Kishun to two years' simple imprisonment and a fine of eleven hundred rupees.
2. It has been proved that the petition for withdrawal of the money was prepared at the instance of Bauwari Lal who himself wrote a portion of it, that Banwari Lal signed the potdar's payment register, and that the sum of Rs. 599-4-0 was paid to the man who personated as Bhukhan Sahu, Lachuman Sahu and Gulab Sahu, The man who personated Gulab Sahu gave his thumb-impression on the voucher (Ex. 11) the refund register (Ex. 10,) and on the petition (Ex. 9). These thumb-impressions were identical with the thumb-impression given by Deolal Ahir on a bond which he executed in 1916 (Ex. 7). Deolal Ahir stated in Court, that he had given his thumb impressions to Munshi Banwari Lal on some paper to obtain the purchase for certain land, and he denied that he had given his thumb-impression before the Treasury Officer. But it is clear that the money was actually paid to these men at the treasury, and that the man who personated Gulab Sahu gave his thumb-impression at the time, and also that he gave his thumb-impression in the refund register when the voucher was issued by the clerk Lachminarain Singh. Deolal Ahir was personating Gulab Sahu, he knew very well that he was not Gulab Sahu and the inference is clear that he was a principal in the conspiracy with Banwari Lal to commit this fraud by personation of Gulab Sahu. There is no merit in his appeal. The sentence is not severe, and his appeal must be dismissed.
3. The appeal of Radhe Kishun raises a different, question. This man is apparently an old mukhtar of a kind known in the Courts as an identifying mukhtar, that is to say, he makes his income by identification of persons who need to be identified by some person known at the Collectorate in order to enable them to withdraw money held in deposit, or to do other business in the Revenue Courts. His defence was that he made the identification of the false Gulab Sahu at the request of Banwari Lal, who informed him that the man was Gulab Sahu. All the assessors were of opinion that Radhe Kishun made the identification in good faith on the representation of Banwari Lal. Babu Sishir Kumar Kaviraj, Deputy Magistrate, who was Treasury Officer at the time when this refund was made, says that he issued the voucher on the identification on this mukhtar, who said on being questioned that he knew the applicant. If he had said that he had merely identified the applicants on the assurance of Banwari Lal, the Treasury Officer would not have issued the voucher. It is conceded by Sir Ali Imam that the mukhtar acted wrongly in making this identification on the mere assurance of Banwari Lal. It may be difficult to say exactly in what circumstances a mukhtar may be justified in treating an introduction from a person in whom he has confidence as the basis of a formal identification, but the Deputy Commissioner of Ranchi may well consider whether proceedings under the Legal Practitioners Act should not be taken against this mukhtar. But that is quite another question from the question of whether it must be inferred that the mukhtar acted in collusion with Banwari Lal for the purpose of defrauding the treasury. Mr. Agarwala suggests that whether Radhe Kishun was actually a member of the conspiracy to cheat by personation or not, his failure to tell the Treasury Officer that he only identified the man on the assurance of Banwari Lal amounted to an illegal omission within the meaning of Section 107, Indian Penal Code and as he thereby facilitated the commission of the offence, be should be held to have abetted it. This would amount to an application of the principle of constructive felony which in English Law is strictly limited, and finds no place in the Indian Penal Code.
4. We are satisfied that the conviction of Radhe Kishun for abetment of the offences of cheating by personation and of forgery cannot be upheld unless it is definitely based on a finding that Radhe Kishun knew that these offences were being committed, that is to say, that he knew that the man whom he identified was not Gulab Sahu. The learned Assistant Sessions Judge based his finding that Radhe Kishun conspired with Banwari Lal on the fact that in 1922 he had acted as identifier in a similar application in which the person who represented Gulab Sahu was another man than Deolal Ahir. This mukhtar after the identification in 1922 identified a false Bhukhan Sahu on three occasions in 1924 and he made the identification with which we are here concerned in 1925 but apart from the identification of 1922, we do not know whether the person identified in 1924 and 1925 were continuously the same persons or not. Therefore, the argument of the learned Assistant Sessions Judge rests on the assumption that the mukhtar must, in 1925 have remembered the name of Gulab Sahu as that of a person whom he had identified in 1922, and that he must have remembered the person whom he had then identified. It is on the face of it unlikely that the man would retain such a memory of persons for whom he performed the act of identification which he apparently took very lightly, and we do not consider that the probability that he would remember is so strong as to justify the inference that he was a member of the conspiracy with Banwari Lal.
5. It has been proved that Radhe Kishun mukhtar acted as identifier on five occasions of withdrawal of deposits but it appears from the report of the Refund Deputy Collector, which is Ex. 5 in this case, that there had been in all eight refunds on applications purporting to be made by one or more of the three brothers between the years 1922 and 1926, and that in three of them the identifiers were other persons than Radhe Kishun. In 1922 a refund was made to the three brothers who were identified by a mukhtar named Khuda Bux, and again, seven months after the refunds with which we are here concerned a refund was made to three persons personating the brothers who were identified by a mukhtar named Isri Prasad. If Radhe Kishun was a member of the conspiracy there would appear to be no reason why other mukhtars should have been employed as identifiers, and it would be probable that Racine Kishun would be employed, as a matter of course, on each occasion. It must be regarded as at least possible that the reason why another mukhtar was employed for the identification in the refund of 6th June, 1923, was that some other man or men were personating the three brothers than those who had acted on the comparatively recent occasion when Radhe Kishun had been the identifier, so that Radhe Kishun could not be employed again lest he should detect the fraud, and that for the same reason another mukhtar than Radhe Kishun was employed as identifier for the refund which was made on 22nd April, 1926. For these reasons although we do not condone the conduct of the mukhtar in making an identification on insufficient acquaintance we do not consider that the facts proved justify a finding that he was acting in conspiracy with Banwari Lal, The conviction of Radhe Kishun is accordingly set aside and he is acquitted and discharged from his bail. The fine, if paid, will be refunded.
Jwala Prasad, J.
6. I agree.