Patna High Court
The Province Of Bihar vs Surendra Prasad Ojha on 7 December, 1950
Equivalent citations: AIR1951PAT86, AIR 1951 PATNA 86
JUDGMENT Ramaswami, J.
1. This appeal is by the Govt. of Bihar against the Judgment of Mr. Tribhuwan Nath Singh, Asst. Ses. J. of Mozaffarporo, acquitting the reap, of various charges.
2. The ease for the prosecution is that Govt. had established grain godowns in Hajipore sub-division for distribution of grain through multipurpose co-operative societies. Govt. had appointed certain firms to be in charge of the gadowns which were under double locks, one set of keys remaining with the Market Inspector & the other set with the stockists. The Grain Control Officer, Hajipore, used to grant "Store Issue Order" in favour of the said societies after the price of the grain had been deposited in the treasury by chalan. According to the prosecution case the resp. forged Store Issue Order No. 366 dated 18-4-1947 with the intention of cheating Govt. It is said that on 25-4-1947 the resp. presented the Store Issue Order to the Govt. stockist M/s. Khublal Sah Gopal Sah by representing himself to be Rambilas Sharma of Bakatpore Society & thereby dishonestly obtained delivery of 145 maunds of rice worth its. 1696/8/0.
3. The resp. denied all the allegations.
4. Three out of the four assessors held that the charges were not fully proved. Agreeing with their opinion the learned Judge acquitted the resp.
5. The prosecution case was based in the main upon a confession made by the resp. on 30-7-1947 before a Mag. Mr. R. D. Narain. The Asst. Ses. J. held that Section 164 (3) had not been complied with & the confession was not admissible in evidence. In support of this appeal, Mr. S. C. Chakravarti contended that the opinion :of the Asst. Ses. J. was erroneous. Section 164 (3) is to the following effect:
"A Mag. shall, before recording any such confession, explain to the person ranking it that he is not bound to make a confession & that if ho does so it may be used as evidence against him, & no Mag. shall record any such confession unless upon questioning the person making it he has reason to believe that it was made voluntarily."
In the present case Mr. R. D. Narain, Mag. when examined in Ct. deposed that he was satisfied that the confession was voluntary. The record of the confession (Ex. 9) also indicates that the Mag. had questioned the resp. in order to satisfy himself that the confession was voluntarily made. The relevant portion of Ex. 9 is reproduced beneath:
Questions. Answers. I am a first class Mag. I want to make a volun- You are not in any way tary statement. No pres- bound to make a statement sure has been brought to before me. Any statement bear upon me & no induce- which you will make before merit hug been given to mo. me shall be used as evi- I belong to a good family. I dence against you. Do you have committed some mis- want to make a voluntary takes in the company of. statement or is it caused bad persons which I want by pressure or threat by to state clearly in the pre- police or any other person? sence of all persons, I Hats any inducement been shall speak the truth. given to you? Do you want to make a voluntary state ment? Do you want to make any statement?
Mr. Narain deposed in Ct. that on 30-7-1947 he had warned the resp. & given him 25 minutes' time to reflect. On the previous date, that is, on 29-7-1947 also the Mag. had warned the resp. It is plain from the record of the confession coupled with the oral evidence of the Mag. That Section 164 (3), Cr. P. C. has been complied with. The learned Asst. Ses. J. did not believe that Mr. Narain gave warning to the resp., on 29-7-1947. But I see no reason why the sworn testimony of Mr. Narain on this point ought not to be accepted as true. Even if no warning had been given by the Mag. to the resp. on 29-7-1947, it is manifest from the evidence that Section 164 (3) has been complied with. The Asst. Ses. J. has refd. to Punia Mallah v. Emperor, A. I. R. (33) 1916 Pat. 169: (48 Cr. L. J. 30) in support of his finding. But the facts of that case mast be distinguished. In that case the Mag. who recorded the confession deposed that "he did not give warning to the accused that be was not bound to rnake a statement & if he did go it might be used as evidence against him."
The H. C. also found upon evidence that no questions were put by the Mag. to satisfy himself that the confession was voluntary. Upon these grounds the H. C. observed that Section 164 (3) was not complied with & the confessional statement was not admissible. In the present case the re-cord of the confessional statement (Ex. 9) clearly allows that the Mag. had given warning to the accused that he was not bound to make statement. The Mag. had further posed several questions to the resp. with a view to ascertain whether the confession was voluntary. The Mag. had questioned as follows:
"Do you want to make a voluntary statement or is it caused by pressure or threat? Has any inducement boon given to you or not? Do you want to make a statement?"
To these questions the resp. replied :
"I want to make a voluntary statement. Neither any pressure has bean brought to bear upon me nor any inducement has been given to mo. I want to make a true statement before you."
Learned counsel for resp. placed reliance upon Baldeo Musehar v. Emperor, A. I. R. (34) 1947 Pat. 281 : (48 Cr. L. J 86) in which the H. C. held that there was a violation of the mandatory provision of Section 164 (3) which made the confession inadmissible in evidence. In that case, however, the column intended for recording questions in the form proscribed contained no questions whatsoever but merely the warning which the Mag. gave to the deponent. The facts of the present case are, as I have indicated, manifestly different. In this context reference should be made to Emperor v. Dubai, A. I. R. (29) 1942 Pat. 113 : (43 Cr. L. J. 90) in which it was argued that the confession was not in accordance with law since Section 164 (3) had been violated. In that case the Mag. put only this question to the accused : "If you want to make any statement of your own free will, you may do that". The answer of the accused was 'I want to make my statement of my own accord". The learned Mag. put the question "what statement you want to make". The accused thereupon made the confessional statement. Upon those facts, the H. C. held that Section 164 (3) had been complied with & the confession was admissible in evidence. The H. C. refd. with approval to the decision of a F. B. in Ghinua Uraon v. Emperor, 3 Pat. L. J. 291 : (A. I. R. (5) 1918 Pat. 179 : 19 or. L. J. 135 S. B.) in which Sir Dawson-Miller C. J. states :
"The last objection that the confession was on the face of. it bad as it did not disclose all the questions & answers put & received must also fail. No form of questions is prescribed by Section 164 (3) from which the Mag. must satisfy himself that he believes the confession was made voluntarily. The questions recorded as having been put & the answers given as well as the demeanour of the applt. may well have convinced the Mag. that the confession was a voluntary one, & there is no reason to suppose that the recorded statement does not record all the questions put. Moreover, under Section 533 a defect in the compliance with the provisions of Section 164 or Section. 364 can be cured by evidence taken by the Ct. before which the confession cr. statement of the accused person is tendered. In the present case the Mag. was examined by the Ct. & deposed that the statement was recorded as given & that he was satisfied that it was voluntarily made."
In Emperor y. Dubai, A. I. R., (29) 1942 Pat. 113: (43 Cr. L. J. 90), the learned Judges held that the law had been authoritatively stated in the F. B. case & there was nothing in the subsequent P. C. case Nazir Ahmad v. King Emperor, 63 I. A. 372: (A. I. R. (23) 1936 P. C. 253 : 37 Cr. L. J. 897 P. C.) to detract from the authority of the F. B. case. Reference should also be made to Emperor v. Ramsidh Rai, A. I. R. (25) 1938 Pat. 352 : (39 Cr. L. J. 725) in which the confession was admitted in evidence, Khaja Mohammad Noor J. observing:
"In recording the confession in this case the learned Mag. omitted to put any question to the accused whether he was confessing voluntarily. No doubt the learned Mag. gave him a warning but the Cts. before whom the confession is used have materials on which they can be satisfied that the confession was in fact voluntary. In the present case the record does not show that any question was asked, by the Mag. in order to ascertain that the confession was made voluntarily. It appears, however, that in giving answer to the warning of the Mag., Jagdish himself stated that he was making the statement voluntarily; & the Magistrate has in his evidence stated that he was satisfied that the confession was voluntary."
In the present case for the reasons already recorded I am of opinion that Section 164 (3) has been com-plied with, that the confessional statement of the resp. has boon voluntarily made & is admissible against the reap.
6. Mr. Nageshwar Prasad, however, stressed the argument that there was material to indicate that the resp. has not given a true account of the facts in the confessional statement. Learned counsel pointed out that in Ex. 9 the rosp. admitted that after forging the Store Issue Order he had gone to Mehnar & negotiated with Bhagwan Lal & Gopalji for its sale; that Gopalji did not deliver any rice but handed a sum of about Rs. 2,100 to the resp. who made over the amount to Rajindra Babu. According to the confession Bhagwan Lal was, therefore, an accomplice in the conspiracy to cheat the Govt. But Bhagwan Lal deposed that he did not know the resp. from before, that on 25-4-1947 the resp. had produced the Store Issue Order & thereupon Bhagwan Lal delivered 145 maunds of rice. Rit Lal (P. w. 1), Kodai Mahto (P. W. 2) & Ramdeo Mahto (P. W. 3) also deposed that they were cartmen whom the reap. had engaged for carrying the rice to Mehnar pethia. It is true that there is a conflict between the prosecution evidence & the confessional statement. But for the reasons which will be shortly stated I am of opinion that the prosecution case in this respect is not true, that in the confessional statement the resp. has given a true account of the manner in which he sold the Store Issue Order to Bhagwan & Gopal Sah.
7. There are indeed important circumstances which corroborate the confessional statement. In the first place there is evidence that Babu Rama-nand Sinha accompanied by the Market Inspector had raided the godown of Khublal Sah & Gopal Bah on 17-7-1947 & seized the Store Issue Order No. 366 dated 18-4-1947 from the premises. The recovery of this document from the godown of Khublal Sah & Gopal Sah is an important circumstance which confirms the confession of the resp. that he had forged the Store Issue Order & had gone to Mehnar & sold it to Bhagwan Lal & Gopalji. In the second place, there is the significant fact that on 29-7-1947 at about 2 P. M. Inspector Jagdish Pandey searched the person of the resp. after the latter's arrest & seized Ex. I, a booklet containing blank Store Issue Orders. The Inspector prepared a seizure list (Ex. 4) which has been signed by two witnesses, Udit Narain Choudhury & Saligram Singh. The booklet contains signature or initials of "R. Prasad" on the first 16 or 17 pages. The evidence of the Inspeotor Jagdish Pandey is supported by Markandey Jha (P. W. 7) who has deposed to the same effect. Mr. Nageshwar Prasad contended that it was improbable that the resp. should be moving about at the time alleged with store issue order booklet. The argument is plausible, but it is impossible to accept it. For I hold that the direct evidence adduced for the prosecution with respect to this incident is reliable & unshaken. The recovery of the booklet of Store Issue Order (Ex. I) is a very material circumstance which corroborates the confession made by the resp.
8. On behalf of the resp. Mr. Nageshwar Prasad contended that the confession having been retracted no weight should be attached to it even against the person making it. Authority for this contention is sought in Queen Empress v. Rangi, 10 Mad. 295, a case which on difference between two judges was decided in accordance with the opinion of a third judge. The authority of the case is doubtful for it does not appear to have been folld. in later cases of the same H C, e. g. Queen Empress v. Raman, 21 Mad. 83 or Kesava Pillai v. Emperor, A. I. R. (16) 1929 Mad. 837 : (31 Cr. L. J. 768). As far back as Queen v. Jhurree, 7 W. R. Cr. 41, it was held that a voluntary & genuine confession of the prisoner is legal & sufficient proof of guilt & this decision has never been overd. though it has sometimes been said that the rule of prudence is in favour of seeking corroboration of a confessions which has been retracted. The view taken accords with the decision of this Ct. in Guja Majhi v King, 2 Pat. L. J. 80 : (A. I. R. (4) 1917 Pat 247 : 18 Cr. L. J. 445). In that ease the only evidence given during the trial to connect the accused with the act of murder with which they were charged, was their own confessions contained in statements voluntarily made by them under Section 164, Cr. P. C., which confessions were retracted before the trial commenced. Upon these facts the learned Judges held that the confessions were admissible in evidence against the accused & that the latter were properly convicted & sentenced of the charge of murder. The point, however, does not arise in the present case for as I have already shown there is sufficient corroboration of the confessional statement of the resp. by independent evidence.
9. As regards the charges under Sections 468 & 471, I. P. C., the primary evidence consists of the confessional statement of the resp., the material portion of which is to the following effect :
"Subsequently, in the month of April Rajindar Babu again got a blank store order for 145 maunda of rice in the name of K. G., Mehnar filled up by me & after that he forged the signature of G. G. O by his own pen & handed it over to me to be taken to Mehnar. I went to Mehnar after a day or two & visited the godown of Gopalji where Bhagwan Lal & Gopalji were sitting. I negotiated with them to sell it. Gopalji asked Bhagwan Lal to settle the matter with me. Thereafter, Bhagwan Lal asked me to sell it by hunda sale. After that, I told Bhagwan Lal that I would make over the store order to him only after making a note of full delivery on it & that I would not take the delivery. He said that in that case I should pay money to him to be paid to the person who would be produced before the Marketting Officer. For this purpose he deducted the sum of Rs. 500 (rupees five hundred) (from my account). Thereafter, Gopalji gave me the Bum of about Rs. 2100. I left the place & handed over the entire amount to Bajindar Babu."
This part of the confessional statement is, as I have already shown, corroborated by the seizure of the document (Ex. I) from the premises of the firm Khublal Sah Gopal Sah at Mehnar. There is in addition the significant circumstance that on 17-7-1947 Ex. I was seized from the person of the resp. after he was arrested. It is important to notice that the booklet contained blank forms, of which p. 17 contained the apparent signature or initial of "R. Prasad," who was Grain Control Officer at that time. Upon the evidence I am of opinion that the charges under Sections 468 & 471, I. P. C. have been established against the resp.
10. Mr. Nageshwar Prasad stressed the argument that even if the resp. had filled up the columns of the Store Issue Order there was no evidence to the effect that the resp. had forged the signature of R. Prasad therein, that therefore as a matter of law the Ct. ought not to hold that the offence of forgery was committed by the resp. Learned counsel reld. upon In the matter of the petn. of Riasat Ali, 7 cal. 352 : (8 C. L. R. 572) in which Garth C. J. stated :
"The 'making' of a document, or part of a document, does not mean 'writing' or 'printing' it, but signing or otherwise executing it; as in legal phrase we speak of 'making an indenture' or 'making a promissory note,' by which is not meant the writing out of the form of the instrument but the sealing or signing it as a deed or note. The fact that the word 'makes' is used in the section in conjunction with the words 'signs,' or 'seals' 'executes,' or makes any mark 'denoting the execution, & C.' seems to me very clearly to denote that this is its true meaning. What constitutes a false document, or part of a document, is not the writing of any number of words which in themselves are innocent, but the affixing the seal or signature of some person to the document, or part of a document, knowing that the seal or signature is not his, & that he gave no authority to affix it. In other words, the falsity consists in the document, or part of a document, being signed or sealed with the name or seal of a person who did not in fact sign or seal it."
But the authority of this case is weak. It has been dissented from in Emperor v. Krishtappa Khandappa, 27 Bom. L. R. 599 : (A. I. R. (12) 1825 Bom. 327 : 26 Cr. L. J. 1014) in which a reference was made by the learned Chief Justice to the definition of a document in Section 29 of the Code which has not been considered in the Calcutta case. In my opinion, the word 'makes' in Section 464 does not mean anything other than 'makes,' that is to say, creates or brings into existence. This opinion is consistent with illustration (c) to Section 464 which is to the following effect :
"A picks up a cheque on a banker signed by B, payable to bearer, but without any sum having been inserted in the cheque. A fraudulently fills up the cheque by inserting the sum of ten thousand rupess. A commits forgery."
Reference may also be made to the English case Queen v. Batmar (1845) 1 COX. C. C. 186 in which a party received a blank cheque signed, with directions to fill in a certain amount, & to appropriate the instrument to a certain purposes, but the party fraudulently filled in a different amount, & devoted the cheque to other purposes. It was held that forgery was committed. Erle J. stated:
''If a cheque is given to a person with a certain authority, the agent is confined strictly within the limits of that authority & if he chooses to alter it, the crime of forgery is committed. If the blank cheque was delivered to him with a limited authority to complete it, the filled it up with an amount different from the one he was directed to insert & if, after the authority was at an end he filled it up with any amount whatever, that too would be clearly forgery."
In the present case I am of opinion that the resp. committed forgery by filling in the blank columns in the Store Issue Order which he knew was signed not by R. Prasad but by Rajindar who forged the signature of "E. Prasad" therein. According to the confession the resp. had sold the forged order to Bhagwan Lal & Gopalji for a sum of Rs. 2,100. In my opinion this part of the confession has been corroborated & must be accepted as true. It follows that the resp. is guilty of the charge under Section 468 & of the charge under Section 471, I. P. C.
11. As regards the charges under Sections 419 & 420 I. P. C. the matter is somewhat different. Bhagwan Lal deposed that on 25-4-1947 the resp, produced the Store Issue Order & obtained delivery of 145 maunds of rice on account of Bakatpore Multipurpose Co-operative Society. Bhagwan Lal said that he did not know the accused in dock from before. According to the witness the Market Inspector Shambhunath Choubey was present when the rice-was delivered. It is significant that the Market-ting Inspector has not been examined on behalf of the prosecution. It is admitted by the Police Inspector (P. W. 12 that in case No. 12 of July 1947, Bhagwan Lal & Gopal Sah were accused along with Shambhunath Choubey, Marketing Inspector. This circumstance throws doubt on the evidence of Bhagwan Lal. I am inclined to think that Bhagwan Lal was in the conspiracy to cheat Govt., that the resp. had produced the forged Store Issue Order before Bhagwan but no actual delivery of rice was made to the resp. but the latter was given a sum of money as illegal profit. This conclusion is supported by the admissions of the three cartmen (P. Ws. 1 to 3). These witnesses were examined for the prosecution to prove that on 25 4-1947 the respt. had conveyed the bags of rice on bullockcart to Mehnar pethia. P. W. 1 denied in Ct, that Bhagwan Lal had engaged the cart. But before the police he admitted that Bhagwan Lal engaged his cart. P. W. 2 similarly deposed that the resp. had engaged the cart, Bhagwan Lal was not even present in the Gola at the time the cart was engaged. Before the-police, however, the witness had stated that Bhagwan Lal had engaged the carta. P W. 3 likewise denied in Ct. that Bhagwan Lal engaged the cart but before police he made a contradictory statement. All the admitted that it was not a pothia day & so the learned Judge rightly held that it was improbable that the bags of rice should have been taken to Mehnar pethia & stocked under a pipal tree on a day on which no bazar was held. For these reasons, the story of Bhagwan Lal that he had delivered the rice to the resp. after the Store Issue Order was presented cannot be accepted as true. But it is manifest that the evidence of Bhagwan Lal supports the confessional statement of the resp. that on the alleged date the latter had presented the forged Store Issue Order. If Bhagwan Lal had known the resp. from before, if he was cognizant of the fact that the Store Issue Order was forged, if he had conspired with the resp. & other persons to cheat the Govt. it is-impossible to hold that the charges under Sections 419 & 420, I. P. C. as framed by the lower Ct. have been established against the resp. In my opinion the lower Ct. has rightly acquitted the resp. of these-two charges.
12. But for reasons already recorded I would set aside the Judgment of the lower Ct. & convict the reap, of the charges under Sections 468 & 471, I. P. C. & sentence him to rigorous imprisonment for a period of three years on each of these charges. The sentences of imprisonment will be concurrent.
13. I would accordingly allow this appeal.
Narayan, J.
14. I agree.