Patna High Court
Mangal Singh vs The State on 5 May, 1955
Equivalent citations: AIR1956PAT154, 1955(3)BLJR453, 1956CRILJ646, AIR 1956 PATNA 154
ORDER Misra, J.
1. The learned Assistant Sessions Judge of Arrah convicted petitioner Mangal Singh of charges under Sections 467, 471 and 193 of the Penal Code and sentenced him to rigorous imprisonment for a period of four years under Section 467, Penal Code. He was also sentenced to the same term of imprisonment under Section 471. Penal Code. No separate sentence was, however, passed on his conviction under Section 193, Penal Code.
The sentences under Sections 467 and 471 of the Penal Code were made concurrent. On appeal by the petitioner, the learned Additional Sessions Judge of Arrah upheld the convictions but reduced the sentences both under Sections 467 and 471, Penal Code, to two years and ordered them to run concurrently. This petition has been preferred against the conviction and sentence passed upon him by the learned Additional Sessions Judge.
2. The petitioner was prosecuted as a result of a proceeding under Section 476 of the Criminal P.C. ordered against him by the learned Sub-divisional Officer, Buxar. The petitioner was alleged to have filed a sada deed of exchange dated 4-5-1950, in the court of the learned Sub-divisional Officer in a proceeding under Section 144. Criminal P. C. That proceeding related to a dispute between petitioner Mangal Singh on the one hand and Ramraj Gareri and his cousin Ramjatan Gareri on the other. The latter claimed the land to be in their possession as 'bataidar. They stated that they had been in possession of the land in dispute which was plot No. 698 for several years before the date of the proceeding.
The petitioner, on the other hand, claimed to be in 'khas' possession of the land. It appears that the proceeding terminated in favour of the 'bataidars' and that the learned Sub-divisional Officer did not accept the case of the petitioner that he was in 'khas' possession of the disputed lands. On the termination of the proceedings, however, the learned Sub-divisional Officer was of the opinion that the sada deed of exchange referred to above was a forged document and had been brought into existence to support the false claim of the petitioner and, as such, he was guilty of fabricating this document as well as of using it knowing it to be a forged document. On a complaint having been filed accordingly, the petitioner was committed to the court of session to take his trial on the above three charges under Sections 467, 471 and 193, Penal Code.
3. It may be stated at this stage that the principal ground for the prosecution of the petitioner was that the sada deed of exchange which is Ext. 9 in the case was alleged to have been executed on 4-5-1950 whereas the cartridge paper on which it was written was issued on 17-8-1950, so that this piece of paper could not have been available for the execution of the deed of exchange on 4-5-1950, as alleged by the prosecution.
It was, accordingly, thought expedient by the learned Sub-divisional Officer that the petitioner should be prosecuted for using this forged document in the legal proceeding before him and, accordingly, the criminal case which resulted in the conviction of the petitioner was lodged.
4. The petitioner denied the charge. His defence was that plot No. 698 was actually in his possession by virtue of exchange between him and Kariman Singh. He did not file this document in the 144 Cr. P.C. case and that all steps in that case were taken on his behalf by one Parmanand Misser.
The scribe was also the same man, Parmanand Misser. All the three persons, namely, petitioner Mangal Singh, Kariman Singh, who was the other party to the sada deed of exchange, and Parma Nand Misser, the scribe, were ordered to be prosecuted but the committing court discharged Kariman Singh and Parmanand Misser.
5. The learned Assistant Sessions Judge came to the conclusion that the petitioner, in fact, had filed the document in the 144 Cr.P.C. case in the court of the learned Sub-divisional Officer and that although there was no forgery of the signature of any party, but in any case there was antedating of the document as Man-gal Singh and Kariman Singh purported to have executed the document on 4-5-1950, and, in fact, this could never have been possible before 17-8-1950, when the cartridge paper was issued as was deposed to by P.W. 9.
Accordingly, it was held that this amounted to fraudulent making of a document at a time at which the maker knew that it was not made, signed sealed or executed. The act of antedating therefore, would be the offence within the ambit of Section 464 relating to making a false document and, as such, forgery as defined under Section 463 of the Penal Code.
The petitioner would, accordingly, be guilty of the offence of forgery of this document which was a valuable security under the provisions of Section 467 of the Penal Code. The learned Assistant Sessions Judge also held that it was the petitioner who used this document as genuine knowing it to be a forged document by filing it in the court of the learned Sub-divisional Officer, Buxar, and, as such, he was guilty under Section 471 of the Penal Code.
The learned trial Judge also convicted him under Section 193, as, in his opinion, the making of the document amounted to fabricating false evidence and as such, punishable under Section 193 of the Code inasmuch as it was fabricated for the purpose of being used in the 144 Cr.P.C. proceeding.
6. It was contended before the learned Assistant Sessions Judge on the evidence of Ramraj Gareri that he accepted that plot No. 698 was in possession of Mangal Singh and, as such, it must be held that his case was a true one and he could not be held guilty of having forged the document.
The learned Assistant Sessions Judge proceeded on the footing that even if it was assumed that Mangal Singh was in possession, he would still be held guilty of the charges brought against him, because the gravamen of the offence was the fabrication of false evidence which could be done by the party even to bolster up a true case.
If, therefore, Ext. 9 was found to be an antedated document brought into existence to support the case of the petitioner, it is wholly immaterial that he was in actual possession as alleged by Ramraj Gareri and can be guilty of the offence of forgery in spite of the fact that he was in actual possession.
The learned Additional Sessions Judge upheld the view of law of learned Assistant Sessions Judge in all respects and also recorded a finding that petitioner Mangal Singh might be in possession but this will not affect the legal position so far as the charge against him was concerned.
7. In this Court, the main contentions advanced on behalf of the petitioner are that Ext. 9 is not a forged document within the meaning of Sections 463 and 464 of the Penal Code and it does not also amount to the fabrication of false evidence within the meaning of Section 192 of the Code. There is also no evidence of user of the document.
It was next urged that Ext. 4(1) which was a petition by Kariman Singh in 144 Cr. P.C. proceeding should not have been used against the petitioner. The show cause petition filed on behalf of petitioner Mangal Singh and others in 144 Cr. P. C. proceeding was neither signed by the pleader nor by the party nor is there evidence as to who drafted the show cause petition and filed it. The documents filed on behalf of Mangal Singh are not duly proved.
It was also contended that if the finding of the courts below upon the point of possession be in favour of the petitioner (which, in fact, must be the only finding as it is deposed to by Ramraj Gareri against his own interest that the petitioner was in possession) the offence of forgery cannot be said to have been established against the petitioner nor the offence under Section 193 of fabricating false evidence or under Section 471 of using a forged document as genuine knowing it to be a forged document. It was lastly contended that the sentence, in any case, is too severe.
8. In my opinion, it is not necessary to consider the contention on the point of fact or with regard to the documents not having been duly proved or as to whether the petitioner filed the show cause petition along with the documents or not.
Generally speaking, these are questions of fact and the two courts below have held against the petitioner so far as the filing of the show cause petition in 144 Cr. P. C. case is concerned. I do not think it necessary to enter into the details with regard to this contention in view of the principal question of law which is decisive of the matter.
9. The question of law with regard to Section 193 of the Penal Code has thus been formulated. Section 193 deals with intentionally giving false evidence in any stage of a judicial proceeding or fabricating false evidence for the purpose of being used in any stage of a judicial proceeding as also of intentionally giving or fabricating false evidence in any other case.
So far as the charge against the petitioner is concerned, it relates not to giving of false evidence in a judicial proceeding but specifically of fabricating false evidence, Ext. 9. Section 192 of the Penal Code defines what amounts to fabrication of false evidence. It runs thus:
"Whoever causes any circumstance to exist or makes any false entry in any book or record, or makes any document containing a false statement, intending that such circumstance, false en-try or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding is said 'to fabricate false evidence'."
Learned Counsel contended that in the present case, the petitioner can be held guilty of fabricating false evidence in terms of Section 193, Penal Code, only if the facts alleged against him come within the ambit of Section 192 of the Penal Code.
It is not merely the making of a document containing a false statement which is relevant, but that the making of a document containing a false statement should be such as to lead any person who in a judicial proceeding is to form an opinion on evidence to entertain an erroneous opinion touching the point material to such a proceeding as underlined (into ' ' here) above.
In the present case, even if it is assumed that this document (Ext. 9) was executed alter 17-8-1950, as was alleged by the petitioner himself, then it was, in fact, executed in 1951, to evidence the fact of exchange which took place on 4-5-1950. It will not amount to fabricating false evidence. The judicial proceeding in question in the present case was the proceeding under Section 144 of the Criminal P. C. in which the primary question for consideration was the possession of plot No. 693 and no question of title was involved.
"Moreover, Ramraj Gareri and his cousin, the two bataidars claimed a right which was subordinate to the interest of Kariman Singh. Ext. 9 does not contain any recital with regard to possession of the land. All that it states is that Kariman Singh Was the owner of plot No. 698 and contiguous to it was another piece of land belonging to petitioner Mangal Singh.' Hence for a period of two years, Mangal Singh would be in possession of plot No. 698 and Kariman Singh would come into possession of the plot belonging to Mangal Singh. Ext. 9 has been read out to me and, in fact, I find no recital in the document bearing upon the question of possession.
It is not stated therein that Kariman Singh was in khas possession of the plot of land and that he put petitioner Mangal Singh in khas possession thereof in which event such a recital so far as the interest of Ramraj Gareri was concerned would, however, be relevant as a recital in a false document which would have material bearing upon the question of possession between the parties. I find, however, no such recital in that document. The relevant recital in the document may be quoted:
"Man farik awal ka kasht khet jo wake mauza Raghunathpur tauzi No. 1480 plot No. 698 mawaji 1 acre 37 decimal eraji hasab tafsil jail ka hai wah aur kheto jo alag wake hai us khet ka najdik farik doyam Mangal Singh majkur ka khet hai. Mangal Singh majkur ka bhai khet wake mauza Raghunathpur Tauzi No. 1419 me plot No. 719 wo 720 wo 721 madhe 1 acre 37 decimals farik doyam ka parta hai Jehaja man farikain apas me eh tai kiya ke ek dusre ka hasab beyaniye khet jo ek dusre ka sath me hai anas me badlaiya kar lebe ..... wo ekrar karte hai ke jiske jime jo khet badlaiya se diya jata hai woh khud kataij dakhil rahkar usme fasil dhan wo ukh ya jo bhi chahe paida kare".
10. It appears from the above recital that the parties to this deed of exchange were putting each other in possession of respective plots authorising them to be in possession. There is no recital of past possession. This document is silent as to the existence of any subordinate interest on the land. It is not inconsistent with the fact that there might be bataidars.
Learned Counsel for the State contended that the clause referring to "khud kabij dakhil rahkar usme fasil dhan wo ukh ya jo bhi chahe paida kare" shows that the parties intended 'khas' cultivating possession. It appears, however, that even if it be so, it might refer to the right of the parties to the deed of exchange to have the land in 'khas' cultivation.
Such a contingency was possible either because the bataidar if any, would not continue to hold the land or that there might be no bataidar on the land. This does not do anything to prejudice the interest of a third person which would have been the situation, if there had been any recital in the document with regard to the khas possession of Karim Singh over the land in the past.
In the absence of such recital, the document has only the effect of exchange of title and the right to cultivate the land in future which might or might not be actualized on account of the existence of subordinate interest by way of 'batai' of a third person.
It was contended on behalf of the petitioner that there being no recital with regard to the past possession therefore, it could not be reasonably contended that this document had any material bearing in causing the learned Sub-Divisional Officer to form any opinion upon the question of possession between the parties in the dispute which was the subject-matter of the proceeding under Section 144, Criminal P.C. This document would be relevant only for the purpose of exchange of title and no Magistrate deciding a dispute between a 'raiyat' and his 'bataidar' would in the least be affected by the transference of title between one raiyat and another. As such the transference of title is irrelevant for the purpose of determining the existence or otherwise of a subordinate interest existing upon the land.
In my opinion, the contention is well founded. What, in fact, would amount to fabricating false evidence within the meaning of Section 192 of the Penal Code would depend in each case upon the special facts of the case which is the subject-matter of a judicial proceeding. What is material in one proceeding may not be found to be material in a different proceeding where the point at issue between the disputants differs from another proceeding.
In the present case, if there had been a dispute about the raiyati interest between Kariman Singh and Mangal Singh on the one hand and some other person on the other during the relevant period, the document could have been material.
For instance, if any person had claimed that he had acquired title to plot No. 698 from Kariman Singh prior to 4-5-1950, or even subsequent to it and if this document had been brought into existence to show that Kariman could not possibly have parted with the title in favour of mat person because he dealt with the property under the instrument of exchange and if this instrument of exchange in the circumstances would have been found to be antedated, it would certainly have a material bearing on the question in a dispute between the parties.
As it is, the document relating to exchange of title of a superior interest, in my opinion, does not affect the existence of the subordinate interest which is quite compatible with the exchange of title to the holders of the superior interest.
To make the point clear, if two proprietors A and B of 'milkiat' interest would enter into an exchange of their proprietary interest and if there is 'raiyati' lease claimed under A by C, the act of exchange between A and B of the proprietary interest would not affect the rights of C who claims only the lessee's interest or that of a right under A which may be quite compatible with the fact that it will be good whether A is the proprietor or B acquires interest thereunder.
Such a deed of exchange between the two proprietors, in my opinion, would not in the least affect the rights of a lessee or settlee, if entered into, prior to their entering into the exchange. In my opinion, therefore, in the context of this case, there being no recital of any kind as to past possession of Kariman Singh, the deed of exchange does not in any way appear to be relevant for the purpose of deciding a dispute of actual possession between the 'bataidar' and Kariman Singh or Mangal Singh who claims to have come into the shoes of Kariman by virtue of this deed of exchange.
No case has been brought to my notice by learned Additional Standing Counsel wherein this point has been considered one way or the other. The matter is, therefore, one of first impression and, in my opinion, this deed of exchange cannot, therefore, be held to be the fabrication of false evidence within the meaning of Section 192 of the Penal Code. The conviction of the petitioner on the charge under Section 193, I. P. C. must accordingly, be set aside and he must be acquitted of that charge.
11. Learned Counsel for the petitioner also contended that the conviction under Section 487, Penal Code, is also not sustainable. He concedes, that he cannot challenge the position that the document was antedated and, in fact, that was the case of the petitioner in so far as he stated that the antedating was done, because the document was drawn up in 1951 and the antedating became necessary to evidence the fact of actual exchange which took place in May, 1950.
If, therefore, it can be established that the antedating is fraudulent or dishonest, then the petitioner must be held guilty of having forged this document and he is punishable under Section 467, Penal Code. Section 464, while defining "making a false document" also lays down the condition that the making signing etc. must be dishonestly or fraudulently done.
Unless, therefore, it can be found that this antedating was dishonest or fraudulent, the petitioner cannot be convicted of the offence under Section 467 of the Penal Code. His contention is that assuming that there Is antedating, because the two parties are agreed that there was an exchange of two plots between Kariman Singh and Mangal Singh in 1950 and this instrument of exchange was brought into existence subsequently only to evidence that fact, it can never be held to be fraudulent since it has no tendency to harm the interest of a third person.
If the parties to the instrument are agreed, it is not for the court to say that the antedating was necessarily fraudulent unless this is prejudicial to the interest of a person other than the parties to the document. Learned Additional Standing Counsel contended that in the present case, the document was brought into existence to use as evidence to harm the interest of 'bataidars' Ramraj Gareri and his cousin and it must, accordingly, be held that this amounted to a false document even under Section 464 of the Penal Code. Learned Counsel for the petitioner placed reliance on the case of 'Emperor v. Govind Singh', AIR 1926 Pat 535 (A) where a Division Bench of this Court consisting of Ross and Kulwant Sahay JJ. held that mere antedating of the document would not necessarily make it a false document unless it operates or could operate to prejudice anyone. That was a case in which the accused Govind Singh was charged with using a forged document in a civil litigation.
The forged document alleged to "have been used by him was a handnote executed by one Umraon Singh in favour of accused Govind Singh for a sum of Rs. 500/- bearing date, the 20th of Chait, 1329, corresponding to 2-4-1322. Govind Singh instituted a suit on the basis of this hand-note and the handnote was filed along with the plaint. The defendant denied the execution of the handnote and his liability thereunder.
The handnote was sent to the stamp office at Calcutta for information as to whether the paper upon which the handnote was executed was issued on or before 2-4-1922, and the stamp office gave a reply saying that the paper upon which the handnote was written had not been issued on that date. The plaintiff took no steps thereafter in the action and the suit was dismissed for default.
A complaint was, however, filed against accused Govind Singh by the learned Munsif under Section 478 of the Criminal P.C. Govind Singh, however, applied for restoration of the suit on che allegation that there was a compromise between the parties and Umrao Singh had executed, a fresh handnote for a sum of Rs. 696/8/- and the agreement between the parties was that none of them would take any steps in the suit and allow it to be dismissed for default.
The second handnote, was, accordingly tent to an expert whose opinion was that the thumb impression of Umraon Singh upon the second handnote as well as upon the original handnote of the 20th of Chait, 1329, was of the same person, namely, that of Umraon Singh. The head-assistant of the stamp office no doubt stated that the paper upon which the first handnote was written had not been issued in April, 1922.
It is not necessary to detail other facts but the defence case that a blank piece of paper had been given by Umraon Singh containing his thumb impression was not accepted. The High Court took the view that although antedating was proved, but there was a total want of evidence in the case to show that the antedating was done by Govind Singh with the object of making any wrongful gain to himself or causing wrongful loss to Umrao Singh.
Their Lordships in the circumstances, took the view that if in fact, the loan had been advanced by Govind Singh, then the mere antedating of the document would be. immaterial as under the second handnote Umrao Singh had admitted his liability so that the first handnote could have no effect of prejudicing his interest. Ross, J. after examining a number of decisions of the courts in England observed as follows:
"Their Lordships relied upon an old decision, 'Salway v. Wale', (1602) 72 E.R. 819 (B), which was a similar case, but in that decision it was added that antedating is not forgery if there is not a mesne interest in any third person who is prejudiced thereby."
In my opinion, therefore, the crux of the question is whether the forgery, if any, has the tendency to harm the interest of a third person. In the present case while considering the matter under Section 192 of the Penal Code, I have already held that a document between the two 'riyats' purporting to exchange title without a recital of past possession which alone the 'bataidar' claimed can have no prejudicial effect upon the interest of the 'bataidars' who alone in this case can be said to be the holder of the mesne or intermediate interest.
In the result, therefore, even if there is antedating, it is a matter between Kariman Singh and Mangal Singh, the petitioner and the document has no tendency whatsoever to affect the interest of Ramraj Gareri and his cousin which will stand or "fall whether Kariman Singh would continue to be the holder of the 'raiyati' interest or petitioner Mangal Singh would claim that right, because in either case they would claim their right subject to any other acquired by Ramraj Gareri.
In my opinion, therefore, the view of law of the courts below must be held to be incorrect as the learned Judges of the courts below have not taken into consideration the actual recital in Ext. 9. That the actual recitals are important was gone into in the case of 'Mohammad Kajim Ali v. Jarabdi Nashkar', AIR 1919 Cal 430 (C) where their Lordships of the Division Bench observed as follows:
"But apart from that the learned Sessions Judge has overlooked the fact that according to the opposite parties the Kabuliat was accepted by the complainant and his full brothers. On that footing the recitals in the Kabuliat would be evidence against the complainant and his full brothers. Moreover the learned Sessions Judge has omitted to consider whether circumstances might not arise in which the Kabuliat would be admissible in evidence under the terms of Section 13 of the Evidence Act."
I am concerned with that part of the decision which relates to the actual recitals of the document because the effect of the document in so far as the interest of the third party is concerned would be upon the actual recital in the document.
12. Learned Counsel for the opposite party also relied upon a decision, of this Court in the case of 'Eaij Nath v. Emperor', AIR 1940 Pat 486 (D), wherein Dhavle J. took the view that if a date in the decree was altered by the decree-holder in the belief that the decree was time barred, he would be held to be guilty of forgery even if it subsequently appeared that the decree was not time barred.
In my opinion, that decision has no bearing upon the facts of the present case inasmuch as the decree sought to be executed was the most vital document which would influence the opinion of the executing court as to whether it was time barred or not. The contention of the learned Counsel for the State is that the above decision should be looked to for the purpose of holding that what matters is the intention of the party.
That is so, but the intention must be considered in the concrete sense as to the shape it has taken in the form of the document in question and whether the document properly read by itself can be considered as material for the determination of the point in a judicial proceeding.
The decision in the cases of 'Mahesh Chandra v. Emperor', AIR 1940 Calcutta 449 (E) 'Devendra Nath v. Dhanmoni Dassi', AIR 1934 Cal 95 (F) and the other decisions are more or less on the same line inasmuch as while the case of 'Mahesh Chandra (E)', is one of 'Kabuliat' fabricated by a party which would have a direct bearing upon the question of settlement of land with the person claiming that settlement; the case of 'Nur Ahmad' was one where the electoral roll was tampered with.
It is obvious, therefore, that the kabuliat or the electoral roll in the cases referred to above was directly relevant for the purpose of determining the question in dispute so that requirements of Section 192 of the Penal Code were fulfilled in both the cases. I do not consider it necessary to refer to some other cases.
Not a single decision has been brought to my notice by the learned Counsel for the State where the document which has no direct tendency to have a material bearing upon the point in issue and which, therefore, could not be held to be fraudulent was yet held to come within the definition of making a false document as provided for in Section 464 of the Penal Code.
In my opinion, therefore, the courts below erred in convicting the petitioner inasmuch as they omitted to consider the fundamental requisite of Section 464, Penal Code, that the document must be fraudulent in the sense that it has a direct tendency to injure the interest of a third person as laid down in the decision referred to above in 'AIR 1926 Pat 535 (A)'.
The decision in 'Shiv Bahadur Singh v. State of Vindh-P.', AIR 1954 SC 322 (G), in my opinion, has no bearing because in that case what the accused person was stated to have done was forging a document with regard to the resumption of the mining right on a date when, in fact, he had not done it and which had a direct tendency, to injure the interest of the lessee who claimed that right to renewal of the lease.
That, therefore, was also a case of a document which was evidently fraudulent inasmuch as it was brought into existence by the accused persons, to show a state of affairs Which, in fact it was not and which had the tendency to injure the interest of the lessee and also to default and to mislead the court. In my opinion, therefore, the petitioner must be acquitted of the charge under Section 467, Penal Code as well.
13. If, therefore, the petitioner is acquitted of the charge under Section 467, Penal Code, it follows automatically that he cannot be held liable for the charge under Section 471, Penal Code, because if Ext. 9 is not held to be a forged document within the meaning of Sections 463 and 464 of the Penal Code and he is not held liable under Section 467 Penal Code it cannot be said that he used a forged document as genuine knowing it to be forged.
In the result, therefore, the petitioner must be acquitted of all the charges brought against him. The application is allowed and the rule is made absolute.