Patna High Court
Luchmi Singh vs Emperor on 22 August, 1917
Equivalent citations: 44IND. CAS.456, AIR 1917 PATNA 111
JUDGMENT Atkinson, J.
1. The accused Luchmi Singh was charged with an offence under Section 471 read with Section 467 of the Indian Penal Code and separately with an offence under Section 193 of the Indian Penal Code, in respect of which charges the accused was put on trial and was convicted on each charge by the Assistant Sessions Judge of Saran on the 3rd July 1917. The learned Judge sentenced the accused to five years' rigorous imprisonment on each charge, the imprisonment to run concurrently in all cases. From that conviction the accused has filed an appeal to the High Court and he asks that on a consideration of the evidence and the facts of the case the convictions and sentences recorded against him may be set aside and the appeal allowed.
2. The facts out of which the prosecution arose may be very shortly stated. On the 16th April 1912 a man called Brij Mohan is alleged to have borrowed a sum of Rs. 200 from the accused Luchmi Singh for which he gave a hand-note to the accused dated the 16th April 1912. Brij Mohan appears to be an illiterate man, and the note appears to have been executed on his behalf by one Murath Thakur. The money was borrowed for a special purpose, as alleged by the accused, namely, to discharge some pressing debt due for the purchase of tobacco leaves. The borrower Brij Mohan promised to pay back the money within a very short time, that is to say, within a month or a month and a half, from the date of the loan. He failed to do so and on the 9th December 1912 Luchmi Singh, the accused, instituted proceedings on foot of the aforesaid hand-note against Brij Mohan. Apparently no appearance was entered to these proceedings by Brij Mohan; with the result that an ex parte decree was obtained against him on the 31st January 1913.
3. On the 29th December it does appear that Brij Mohan instructed a Vakil practising in Chapra to file a petition on his behalf asking for time. Up to this stage no legal form of appearance by Brij Mohan to resist the suit instituted by Luchmi Singh was made. However, the Court did grant the application of Brij Mohan and the case was allowed to stand over for two days.
4. On the 31st of January 1913, when the case was called on for disposal, there was no appearance in person or by deputy for Brij Mohan and accordingly the Court granted a decree ex parte. In the month of August 1913 it became necessary for the decree-holder to have his decree transferred from Chapra to the district in which Brij Mohan lived for execution. On the 5th of August execution of this decree was taken out; and subsequently, on the 8th of August 1913, Brij Mohan was arrested in pursuance of the decree, After his arrest he was taken from the village where he lived to Chapra and he stated to the Munsif that he intended to impeach the entire transaction on which the ex parte decree was founded. He said that in fact he never borrowed money from Luchmi Singh; and that the hand-note was not a genuine document and that in fact he had no money transactions at all to any extent with Luchmi Singh; and that he was willing to deposit the security for the amount for which the ex parte decree had been obtained to secure his release. Accordingly Brij Mohan was released, on his depositing as security the amount of the debt sought to be recovered, which was considerably over Rs. 200 inclusive of interest; and immediately afterwards he instituted proceedings in the month of September 1913 to set aside the ex parte decree. That suit was No. 170 of 1913 and the plaint is dated the 8th of September 1913.
5. The suit was defended by Luchmi Singh, who contended that the hand-note was a genuine note; and that the money sued for was due; and that Brij Mohan was his debtor for the amount claimed in the previous suit and that there was no ground whatsoever for impeaching the transaction or the judgment which he had obtained ex parte on the 31st of January 1913, the plaintiff being properly served with necessary notices and all proper legal steps having been taken to justify his decree. After much discussion the learned Munsif was pleased on the 13th of June 1914 to set aside the ex parte decree which was obtained by Luchmi. Singh against Brij Mohan on the 81st. January 1913. Following that result Brij Mohan applied to the learned Munsif on the 2nd of February 1916 for leave to sanction the prosecution of Lachmi Singh under Section 116, Indian Penal Code. It is right to observe that a considerable time--two years--elapsed between the date that the Munsif pronounced the decree setting aside the ex parte decree granted on the 31st of January and the 29th of May 1916, the date when the sanction for prosecution was eventually granted by the District Judge. It is a very remarkable fact that such a long space of time should be allowed to elapse between the date of the Munsif's decree setting aside the ex parte decree and the date when the application was made for leave to sanction the prosecution. It tends to some extent to show want of bona fides in support of the case put forward by the prosecution. However, the fact is that the learned Munsif on the 29th of May 1916, he having heard the case and being familiar with the case, declined and refused to give sanction for the prosecution of this accused Luchmi Singh.
6. The matter was taken on appeal before the District Judge who adopted a different view, and directed a prosecution of the accused exercising his powers under Section 476 of the Code of Criminal Procedure and ordered Luchmi Singh to be prosecuted under Sections 209 and 210, 193 and 371/476, etc.
7. Mr. Justice Roe on appeal to him held that the learned Judge had no jurisdiction at all to direct a prosecution under Sections 209 and 210, but he upheld the direction for the prosecution of the accused under Sections 471 and 193 of the Indian Penal Code.
8. These are the circumstances under which the present prosecution is brought. The judgment of the learned Assistant Sessions Judge who tried this case is not satisfactory. I think it is wanting very much in legal form; and shows an absolute want of judicial discretion. The case for trial was a simple one. The real and vital point in issue was whether or not the hand-note, dated the 16th April 19i2, was or was not a genuine hand-note. A considerable mass of evidence was given in this case, which was irrelevant and unnecessary; and a considerable amount of time was wasted in taking evidence which was quite beyond and. outside the scope of the obligation which was upon the prosecution to prove. The learned Public Prosecutor who appeared in this case endeavoured to frame the prosecution upon the following lines.
9. He alleged that the hand-note originally sued for was a deliberately false hand-note; and that the proceeding which was instituted on foot of that hand-note was a designed conspiracy manufactured to harass Brij Mohan. He alleged that Brij Mohan had a row or a dispute with a man called Kedru Singh, that Kedru Singh out of malice towards Brij Mohan entered into a conspiracy with Luchmi Singh and Balak Singh and two other men to institute a false case against Brij Mohan founded upon a false hand-note, and the learned Judge has gone out of his way irrespective of the evidence to try and wring from these facts a suggestion of a conspiracy to support the case put forward by the prosecution. In my opinion there was no evidence whatsoever to justify the learned Judge's conclusion based upon heated and intemperate premises which prejudiced the learned Judge's mind and deprived him of a sound discretion in giving a fair trial to the accused. To my mind there is no evidence of any fact from which the inference of conspiracy to defraud Brij Mohan can be inferred or legitimately drawn in support of the case put forward by the prosecution. Utter violence has been done to this aspect of the case by the learned Judge; and he has by reasons of his conclusions allowed his mind to be prejudiced in fairly determining the real issue for trial, namely, whether the hand-note of the 16th April 1912 was genuine or not; whether money was or was not due on that hand-note; and whether Luchmi Singh used that hand-note in any judicial proceeding knowing it to be a forged document.
10. Mr. Fakhruddin on behalf of the prosecution candidly admits that on reading the evidence he fails to find any corroboration of Brij Mohan's evidence. The prosecution and the learned Judge seem to have thought that when Brij Mohan denied that he made any hand-note, or that he ever borrowed money from Luchmi Singh, or that he ever took money from Luchmi Singh, or that any financial transaction of any kind ever took place between Brij Mohan and Luchmi Singh, that that was the end of the obligation and onus of proof that was cast upon them. With great respect to the learned Public Prosecutor who appeared in this case, I say that he totally misconceived his duty and the requirements of the law. It is not sufficient in the case of the trial of an accused in a criminal cause for the Crown merely to establish a prima facie case of guilt. They must establish, so far as they can, by every reasonable means in their power, evidence to support the facts proving conclusively the guilt of the accused.
11. In this case there has been a breach of duty on the part of the Crown in the discharge of the onus of proof that rested on them inasmuch as they have examined one witness, and one witness only, in support of the case, who is not reliable even so far as his evidence is concerned. The evidence of Brij Mohan is unreliable ' and there is abundant evidence on the record to show that this witness is untrustworthy and untruthful. It was the clear duty of the prosecution to call at least the person who was alleged to have signed the hand note on behalf of Brij Mohan; and also the person who was present with him and signed the vakalatnama on his behalf on the 29th January 1913. Murath Thakur was the person who signed the hand-note as the agent of Brij Mohan. Every witness for the defence alleged in the second trial before the Munsif that Murath Thakur signed the hand-note at the request of Brij Mohan; and in the face of this evidence the Crown did not think worth while to consider what evidence this Marath Thakur could have given or to call him as a witness. In my opinion the duty was cast upon the Crown and not upon the defendant to prove that Murath Thakur did or did not sign on behalf of Brij Mohan. In addition it would have been material also for the purposes of this case, if the suggestion put forward by the Crown was true that the whole business was the result of a conspiracy; and that Brij Mohan never appeared to instruct the Pleader on the 29th January to get an adjournment; and that the person who did appear was some person personating Brij Mohan at the suggestion of Kedru Singh. Two important witnesses in support of the prosecution case have been failed to be produced by the Crown. Therefore, we are left with nothing in this case save the negative evidence of Brij Mohan uncorroborated by any document in the case which would tend to support the evidence he gave. The documents in the case rather go to contradict the evidence given by Brij Mohan than to support it.
12. There is a large body of evidence of at least 7 to 8 witnesses adduced on behalf of the defence, and that evidence has not been challenged or impeached on cross-examination and that evidence gives the most positive contradiction to the evidence of Brij Mohun. The success of this prosecution must depend upon accepting or rejecting the evidence of Brij Mohan.
13. How does Mr. Fakhruddin put the case on behalf of the Crown? He admitted that the sole issue was whether or not the hand-note was made and that question, as I have said before, must stand or fall by the evidence of Brij Mohan. In arriving at a conclusion he asked us to be guided by the probabilities of the case, which he suggested might be as follows:
1. Did Brij Mohan ever borrow money from Luchmi Singh?
2. Even if he did borrow, would he not pay back the money rather than be sued?
3. Did he require money very urgently to buy tobacco leaves?
4. Even if he wanted to buy tobacco leaves, could he not have sent a man from his house on his return home with money to make the purchase that he wanted to?
5. Was it likely that if he was served with a summons that he would not have resisted the suit, and
6. Was it likely that having gone to see his Pleader on the 29th January, he would have returned home the next day not to return?
14. It is contended that Brij Mohan did not require this money in April 1911. He is alleged to be a well-to-do man; but I do not think that he is in any sense an exceptionally well-to-do man. However, the fact is that Brij Mohan came to the district where Luchmi Singh lived, that is 60 miles away from his home, to purchase tobacco leaves and he went to Murath Thakur who is an agent in that district. He made a large expenditure, more than he had cash with him by Rs. 200 and wanted money. Murath Thakur came with him to Luchmi Singh who was in the company of another person at the time, and he tells his version of what happened in a very graphic way. What was the substance of the conversation? Brij Mohan said to Luchmi Singh: "I want money at the present moment, can you lend me money?" The answer was given in the presence of three persons who were wholly disinterested in the case, directly or indirectly. Luchmi Singh said, "Yes, I would advance you money at 21/2 per cent." Thereupon Brij Mohan said: "21/2 per cent. is too high, make it 2 per cent." 'Very well," said Luchmi Singh, "I will give you money to-morrow. Please come with the stamp paper and we will carry through the transaction."
15. In conformity with that arrangement as deposed to, Brij Mohan turned up at 10 o'clock the next day at the house of Luchmi Singh and then in the presence of some 5 or 6 persons this transaction was alleged to have taken place, and the evidence is that at least four of the witnesses who were present there saw the writing of the note; and that the same was signed by Murath Thakur on behalf of Brij Mohan and the money being given by Luchmi Singh to Brij Mohan. The learned Judge has throughout his judgment ignored this evidence entirely. Is this evidence to be disbelieved? Is this evidence to be held doubtful merely because it has been given by witnesses called for the defence? The Assistant Sessions Judge has given no weight to the evidence of the defence, nor has he attached any degree of importance to it, though that evidence has not been impeached. It is a monstrous thing that the learned Judge should believe the case of conspiracy, without evidence to Support it, and at the same time ignore all the evidence of the witnesses put forward by the defence. There is no reason or sense In allowing this judgment to stand; and it would be all the more monstrous to do so in the face of the absolute manner in which the learned Judge has ignored the weight of evidence adduced on behalf of the defence. The accused has been tried in a manner that was most improper and unfair. We see very cogent reasons why the entire sentence should be set aside, and the accused acquitted.
16. Whether Brij Mohan wanted the money or not; or whether there was any necessity for his borrowing money has not to be decided. Undoubtedly it appears to us that some transaction in the nature of making a note took place. What confirms this? Brij Mohan goes to his Pleader on the 29th January, in company with Manbaran Thakur, and he gave his Pleader instructions as to what to do; and the Pleader did that and then he waited for his client to come back, but the client never came back and the Pleader then wrote a letter addressed to the place where his client lived, and that letter was posted through his clerk and the letter must have been received by Brij Mohan. The suggestion put forward by the prosecution is that Brij Mohan never in fact appeared before the Pleader, that he was personated by somebody else. This somebody was instigated by Kedru Singh to personate Brij Mohan according to the prosecution; and it is also suggested that Kedru Singh managed to intercept and receive the Pleader's letter; and that he or some one on his behalf also wrote the post card in reply to the Pleader which has been produced. If it is believed that this card came from Brij Mohan himself, then there is really in fact an end of the whole case put forward by the prosecution on behalf of Brij Mohan.
17. Mr. Fakhruddin said that he believed that the card came not from' Brij Mohan but from some person personating Brij Mohan, viz., Kedru Singh. Now which is the most likely to be true? Either the card came from Brij Mohan or it came from Kedru Singh personating him. There is every reason to believe that it came from Brij Mohan and there is nothing to suggest that it came from Kedru Singh as his personator. Why all this evil motive was ascribed to Kedru Singh, though he was not an accused person, I do not know He never lent the money in question. This evil motive was suggested because Brij Mohan was his tenant and had some dispute with Kedru Singh owing to Brij Mohan's refusing to make some contribution towards the marriage of Kedru Singh's daughter in the shape of ghee, etc. I fail to see why the refusal of this contribution, if made, should create such a bad feud between Kedru Singh and Brij Mohan as to induce and prompt Kedra Singh to join in a conspiracy to get a third party to bring a maliciously false suit against Brij Mohan. I do not think the feud suggested between Brij Mohan and Kedru Singh was such as would induce Kedru Singh to take any such action as is suggested that he did take. We are not concerned with this aspect of this case. These topics have been laboured by the learned Judge irrespective of the real issue for trial in this case.
18. As to the post card, it was certainly posted in the district where Brij Mohan lived, who is an illiterate man, but no attempt to prove the authorship of the card has been attempted if it be not the post card of Brij Mohan. The Criminal Investigation Department could have been asked to trace the author of the post card and their report would have helped us to decide this case. As the case stands, we think the Crown case is irresistibly weak; and the evidence on the record induces and coerces us to believe that the post card is a genuine document and that it was written by Brij Mohan or by somebody on his behalf to his Vakil. It alleges that he owes the money to Luchmi Singh; and that he is willing to pay it off if he gets time; and he is willing to do whatever he can to make some satisfactory settlement with Luchmi Singh. And the post card also contains the admission that Brij Mohan instructed a Pleader to apply for time on his behalf and to get time to enable him to raise money to pay the debt due as soon as possible. If one believes that Brij Mohan was the author of this post card and that it is genuine, the Crown case disappears.
19. I have reviewed the evidence in detail. I have indicated what was the nature of the evidence adduced on behalf of the defence evidence. We are not concerned as to whether the plaintiff was duly served or not. We are here for the purpose of ascertaining whether or not the case put forward by the Crown is supported by evidence--evidence which in the view of reasonable men would appear to show that the accused person was guilty. I must say that reading and faithfully considering the evidence I have no hesitation in saying that the evidence does not support the case put forward by the Crown.
20. One important matter, and very important matter, I want to refer to. The learned Judge has said that Brij Mohan stated that Kedru Singh was the son-in-law of Luchmi Singh and that Luchmi Singh was the brother-in-law of Balak Singh. Much comment has been made upon this point by the learned Judge. The learned Judge has worked upon it to an astonishing degree and from it he has inferred that the accused and all his people have joined in a conspiracy. I do not think there is much in this point, save that it supplied food to strengthen the learned Judge's mind that the case was one in which Kedru Singh and others formed themselves into a body of conspirators to bring a false suit against Brij Mohan.
21. Brij Mohan said he never came to know anything about Kedru Singh until the suit was instituted. Immediately afterwards he swears in a deposition before the Court that he had known these people for about 20 years. This is a downright lie. First he stated that he did not know of their relationship. Then he said he knew them for 20 years and said positively that he was present at the marriage of Kedru Singh which took place 20 years before. It is little matters of this kind that one has to look at for the purposes of crediting the uncorroborated evidence of one witness.
22. One other matter requires attention and that refers to Brij Mohan's statement that he never dealt in tobacco leaves, that he never had any transaction of that kind and that he dealt in money-lending business only.
23. Seven or eight witnesses were examined on behalf of the defence who proved beyond doubt that Brij Mohan did business in buying tobacco leaves up to the year 1911; and that even immediately before the hand-note transaction took place Brij Mohan dealt in tobacco leaves. Now who are these witnesses? They are the people with whom Brij Mohan used to deal in the purchase of tobacco leaves, either in buying or in selling tobacco leaves,
24. I have reviewed the evidence in detail and I am not satisfied that the learned Judge was right at the conclusion at which he arrived based upon the uncorroborated testimony of a complainant. I feel that the Crown has not discharged the onus of establishing the guilt of the accused. Therefore, we think it is improper and wrong to allow the conviction in this case to stand. Accordingly we set aside the conviction and acquit the accused.
Jwala Prasad, J.
25. I do not think I am called upon to go into details in this case as the matter has been very fully dealt with by my learned brother. Suffice it to say that the prosecution in this case has failed to establish clearly the charge against the accused.
26. The only issue in this case is whether the hand-note in question is forged or not. In order to establish this issue the prosecution roust give conclusive evidence to establish that the document is a false document within the meaning of Section 464, and further that it was forged by the accused with one of the intents mentioned in Section 463.
27. The learned Assistant Sessions Judge at the very outset of the judgment lays down a proposition for his consideration which, I think, was upon a misconception of the manner in which the criminal prosecution should be viewed. The learned Judge says: In a case like the present, however, the prosecution can give negative proof only to establish a prima facie case and it is for the defence to prove affirmatively that the document in question was really executed by the person by whom it purports to have been executed." The defence has no obligation of any kind as suggested in the latter portion of the passage quoted above. It is not for the defence in a charge of forgery to prove that the document was a genuine one. It is for the prosecution to prove that the document was a forged one and that the accused did forge it. In the civil case out of which this prosecution arose the issue no doubt was whether the hand note was genuine or not and whether it was or was not executed by Brij Mohan and whether the money that was said to have been borrowed on the hand-note was really borrowed by him or not. It was then incumbent upon the plaintiff who is the accused in this case to establish that the document was a genuine one and as he failed to do so, the learned Munsif dismissed the suit and set aside the decree that was obtained ex parts upon the basis of that hand-note. As I have said above the table is turned and the onus is now upon the prosecution. The hand-note in question purports to have been executed by Brij Mohan, the body of it is said to be in the hand-writing of one Balak Singh and the signature of Brij Mohan is by the pen of one Murath Thakur. Brij Mohan in' his evidence in order to prove that the document is a forged one says : ' I do not know Murath Thakur, I have never seen him, and I never asked him to sign any hand-note in my behalf." As regards Balak Singh he says ''I never asked him to write the document in question." From the statement of Brij Mohan quoted above, it is clear that Murath Thakur and Balak Singh are necessary and primary witnesses to give information as to whether Murath Thakur did sign the document at the request of Brij Mohan and whether Balak Singh did write it at the request of Brij Mohan. Murath Thakur has not been examined in this case. It is impossible to hold upon the evidence of Brij Mohan alone that the prosecution has succeeded in proving that Murath Thakur did not sign the document in question at the request of Brij Mohan. No reason has been assigned, and nothing has been brought on the record, to show why Murath Thakur was not examined by the prosecution at any stage of the case. The prosecution has failed in its duty to place before the Court the best evidence available, and as such has failed to establish the guilt against the accused. I, therefore, agree with the views of my learned brother that the accused in this case should be acquitted and the conviction set aside.