Patna High Court
Uohab Santara vs Emperor on 31 May, 1921
Equivalent citations: 65IND. CAS.426
JUDGMENT Jwala Prasad, J.
1. The appellant has been convicted of fraudulently or dishonestly using as genuine and valuable security a forged hand-note (Exhibit 4) under Section 467 read with Section 471, Indian Penal Code and sentenced to five years' rigorous imprisonment and a fine of Rs. 500.
2. On the basis of the said hand note he instituted a suit in the Court of the Munsif of Puri against the alleged executant, Gopi Nath Harichandan (P.W. No. 5), claiming Rs. 300 as due to him under the hand-note in question. The said note was filed along with the plaint. In support of his claim the appellant was examined in the Court on 26th February 1920 and he stated that the defendant Gopi Nath Harichandan (P.W. No. 5), executed the document on the 29th December 1916 on which date he took the said sum of Rs. 300. That suit of the plaintiff was dismissed by the Munsif after a special oath having been taken by the defendant, Gopi Nath Harichandan, denying the execution of the hand-note and the taking of the loan, The appellant was directed by the Munsif to be prosecuted for using the document said to have been forged. After the necessary preliminary enquiry, the prisoner was committed to the Court of Sessions and was tried with the aid of two assessors, with the result, as stated above at the very outset of this judgment, that he was convicted and sentenced to five years' rigorous imprisonment. The assessors returned an unanimous verdict of guilty. The learned Sessions Judge has held that the appellant did use the document in question in support of his claim in the Civil Court. This finding is based upon the good evidence on the record and has not been challenged in this Court. The only question, therefore, for consideration before us is whether the document in question is a forged document.
3. The hand-note bears the date "29th December 1916," Bubu Pulin Behari Banerjee, Stationary Store Keeper, in the office of the Controller of Stationary, Calcutta proved that the Cartridge Paper on which the hand-note is written was not only not in existence in December 1916 but that it had not been ordered by the Controller's Office from the manufacturers until after the month of June 1917. Therefore the hand note in question could not have been executed on the 29th of December 1916. In the interest of the public, the documents and the distinctive marks that they bear are kept confidential and are not disclosed. The witness Pulin Behari Banerjee accordingly refused in the cross-examination to disclose the confidential and secret matters. The learned Counsel on be half of the appellant argues that the learned Sessions Judge ought to have compelled the witness to disclose those confidential matters and that the refusal of the witness has affected his evidence to such a degree that it renders it inadmissible. Reliance has been placed upon Section 162 of the Evidence Act. The first paragraph of that section no doubt requires a witness summoned to produce a document to bring it into Court. The second paragraph of that section gives the discretion to the Court to inspect the document "unless it refers to matters of State," The document said to be produced on behalf of the appellant to my mind refers to State matters and consequently the Court could not compel the witness to produce the same in Court for the inspection of the appellant or the public. I accordingly overrule this contention. But in view of the defence taken by the appellant in the Court below and also vehemently urged in this Court, the evidence of the Store Keeper becomes wholly irrelevant. The accused's case now is that the writing upon the document in question was not written on the 29th of December 1116 as it purports to have been on the face of it. That date denotes the date of execution of a hand note which was subsequently substituted by the document in question and the original date of execution "29th December 1916" was retained in the substituted document which has been produced in Court. In other words it is now said that the document in question came into existence subsequent to June 1917 after it was manufactured according to the evidence at the Store Keeper. This was not the case of the prisoner in the Civil Court. There the prisoner case was based on the hand-note stating that it was executed on the 29th December 1916, the date on which the money was advanced. The present case of the prisoner is that money was advanced on the 29th of December 1916, but the original document is no longer in existence and an the date when the present document was written no money was paid to Gopinath Harichandan, the debtor. This is obvious from the statement on oath of the appellant in Exhibit 5 when he gave evidence in support of his claim in civil suit." I see the hand note Exhibit. I "said the appellant in the civil suit." It is dated 29th December 1916 on that very day the defendant executed this hand-note to me," The defence witness No. 1 Bonamali Mahanty contradicts the case of the appellant by stating that on the date when the document in question was substituted for the old damaged document, the appellant paid the consideration money to Gopinath, the debtor. He says that the money was paid to Gopinath on the same day that Gopinath Wrote the paper. Thus apart from the evidence of Pulin Behari Banerjee, Store-Keeper the document in question upon the evidence on the record does not seem to be a genuine one.
4. The question then is whether the prosecution has been able to prove affirmatively that the document is a forged one, the onus of proof being upon the prosecution. Exhibit B, a blank stamp paper with endorsement on the back of it in the handwriting of Gopinath Harichandan the debtor, was produced on behalf of the accused in the Sessions Court with a prayer to send it to Government expert in handwriting for comparison of handwriting on the two documents. The trial before the learned Sessions Judge commenced on the 6th October 1920 and after the case having been opened by the Public Prosecutor and the examination of some of the prosecution witnesses the case had to be adjourned to the 15th of January 1921 to enforce the attendance of Babu Pulin Behari Banerjee. The assessors were then discharged and a de novo trial was directed. No application for the comparison of the handwriting was made at the commencement of the trial on the 6th of December, nor was any application made previously in the commitment Court. The application made on the 5th of January 1921 was, therefore, rejected by the Court below as being too late. I do not think that the Judge was wrong in refusing the application in the circumstances of this case. The accused is required to give the list of witnesses in the commitment Court if the order for commitment is made. No doubt, in certain special circumstances the Sessions Judge may allow fresh evidence to be given on behalf of the defence, but the accused failed to make out a sufficient case before the Sessions Judge for sending the document in question to the handwriting expert. That would have delayed the disposal of the case and certainly the Court could not have allowed the document to be taken away in the midst of the trial. The Court, however, compared the writing on the document in question with the admitted handwriting of Gopinath on Exhibit B, and came to the conclusion that although there is similarity between the two handwritings yet they are not of the same person, indeed, as the learned Judge says, the similarity between the two writings is no greater than can fairly be expected from a competent forger. We have ourselves also compared the writings, and we are not satisfied that they are of the same person. Mr. Asghar has then referred us to the case of Barindra Kumar Ghose v. Emperor 7 Ind. Cas. 359 : 14 C.W.N. 1114 : 37 C. 467 : 11 Cr, L.J.453 where Sir Lawrence Jenkins, C.J., on the authority of the distinguished Judge (Blackburn) held that the prosecution must produce an expert in the handwriting when the case against the accused depends entirely upon the comparison of the handwritings. The learned Chief Justice further observed that the Court should not take upon itself the responsibility of judging of the handwriting by making comparison itself unaided by the opinion of an expert, This is no doubt, a very valuable opinion and a very wholesome guide in judging handwritings, To my mind however this does not at all suggest that the Court is incompetent to use its own eyes for the purpose of deciding whether certain handwritings placed before it are similar or not. To do this would be to deprive the Court of the function for which it exists of deciding disputed facts placed before it. The opinion of exports is only a piece of evidence. The opinion of the Judge is the decision in the case. A Judge has to be satisfied and he is entitled to take such assistance upon evidence as is available in the circumstances of each case. No doubt where the conviction of the accused rests entirely upon a comparison of handwritings, it has been held in a number of cases that such a conviction is not very safe. I had the opportunity of discussing the point in the case of Mohammad Kabiruddin v. Emperor 51 Ind. Cas. 774 : 20 Cr; L.J. 534. The opinion then expressed by me was based upon a consideration of the authorities on the subject. I still adhere to that opinion. But the present case does not depend solely upon the comparison of hand writings. Here we have got the direct evidence of Gopinath. Harichandan who is said to have written the document in question that the document was never executed by him and he did not take the loan of Rs. 300 mentioned therein. The accused, on the other hand, asserts that this was the document executed by Gopinath Harichandan. So in this case we have got direct evidence on both sides. The question before the Court is which evidence is acceptable. Gopinath Harichandan's case is that of denial. He could not be expected to corroborate his case by direct evidence. The case of the accused is in the nature of affirmative statement, but the evidence offered on his behalf is so contradictory and inconsistent and improbable that it is impossible to act upon it. I do not think that Mr. Asghar has himself laid any stress upon that evidence. The evidence given by the defence witnesses are palpably false. They have purported to prove that the document in question was substituted for an old and damaged hand-note. I cannot for a moment believe that an old damaged hand-note will be substituted by another one, keeping the old date on the new one, if the question of the hand note and a renewal as may be expected is a true case. Defence witness No. 1, as observed already, contradicted the case of the accused by stating that the money was paid at the time when the substituted hand-note was executed. The defence case and the evidence in support of it must, therefore, be eliminated from this record as being rank perjury.
5. Let us now see whether the prosecution evidence of Gopinath survives to the extent of carrying conviction in our minds so as to accept it as having been conclusively proved that the hand-note in question was a forged one. I say so with purpose, for nothing short of a firm convictions in our mind will entitle us to punish the prisoner--a conviction that the hand-note in question is a forged document to the knowledge and belief of the accused and that he used it with such knowledge and with the intention of committing fraud or dishonesty. The learned Counsel on behalf of the prisoner has not shown to us inherent improbability in the case of Gopinath Harichandan. The evidence, as we read it, appears to us to be straight for ward. It is corroborated by the circumstances of the case and as such it is more acceptable than, the evidence sought to be corroborated by the direct testimony of the witnesses. The circumstances of this case in favour of the prosecution are such as are incapable of being fabricated. The Court below has accepted the evidence. I therefore, have no hesitation in accepting the evidence of the prosecution and in holding that the case against the accused has been fully and firmly proved. It was a during act on his part to concoct the hand note of a large sum of Rs. 300 which he deliberately used in the Civil Court to support a wholly false claim against the defendant, Gopinath Harichandan. These are the circumstances which the Court below took into consideration in a warding somewhat heavier sentence against the accused. I agree with the Court below that the accused deserves a deterrent sentence. We, however, think that the fine of Rs. 500 imposed upon the petitioner be remitted, inasmuch as the sentence of rigorous imprisonment for five years is sufficient to meet the ends of justice.
6. The conviction and sentence of imprisonment are upheld and the sentence of fine is remitted.
Adami, J.
7. I agree.