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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 110 of 1961.

Appeal from the judgment and order dated January 25, 1961, of the Calcutta High Court in Reference No. 10 of 1960. D. N. Mukherjee, for the appellants.

K. B. Bagchi, S. N. Mukherjee for P. K. Bose, or the respondent.

1963. February 8. The judgment of the Court was delivered by SHAH, J.-The first appellant-Sekander Sheikh-was charged in a trial held before the Additional Sessions judge, Murshidabad, in the State of West Bengal, for the offences of forging a valuable security punishable under s. 467 1. P. Code and of falsely personating another in such assumed character and presenting a document for registration punishable under s. 82 (c) of Indian Registration Act. The second appellant-Hasibuddin Sheikh was charged with abetment of these offences. The trial for the offences of forging a valuable security and abetment thereof was held by the Sessions judge sitting with a jury and for the offences under the Registration Act without a jury. The jury brought in a verdict of guilty by a majority of 4 to 3 against the appellants for the offences of forging a valuable security and abetment thereof, but the judge did not accept the verdict and made a reference under a. 307 of the Code of Criminal Procedure to the High Court of Calcutta, because in his view there was absolutely no reliable evidence' against the two appellants in respect of the offence of forging a valuable security and that it was in the interests of justice to refer the case to the High Court. The Sessions judge acquitted the two appellants of offences under the Indian Registration Act. The High Court declined to accept the reference and convicted the two appellants respectively of the offences punishable. under s. 467 and s. 467 read with s. 109 of the Indian Penal Code, and sentenced each appellant to suffer rigorous imprisonment for two years. With certificate of fitness granted by the High Court under Art. 134 (1) (c) the appellants have, appealed to this Court.

The charges against the first appellant were-

(i) that on or about January 15, 1958, he had in the town of Berhampore forged a Heba-

nama in respect of certain property in favour of one Ali Hossain purporting to execute the same in the name of one Kaimuddin of Debkundu and that the execution of the document was made with intent to cause the said Kaimuddin to part with his property and to commit fraud and

(ii) that on the same day he had falsely per- sonated Kaimuddin Sheikh and in that assumed character had presented for registration the Heba-nama in the Berhampore sub-registry and had affixed his thumb impressions claiming to be Kaimuddin Sheikh. The second appellant was charged with abetting the first appellant in the commission of the two offences by identifying the first appellant as Kaimuddin Sheikh. At the trial the prosecution examined one Swarana Kumar Dey who testified that he had engrossed the Heba-nama in favour of Ali Hossain which was executed by the first appellant purporting to do so as Kaimuddin Sheikh, that the first appellant had impressed his thumb mark on the document before him in token of execution of the Heba-nama that the first appellant had represented himself to be Kaimuddin Sheikh, and that the executant of the document was identified before him as Kaimuddin Sheikh by the second appellant Hasibuddin Sheikh. Kaimuadin Sheikh testified that he had not executed any Heba-nama in favour of Ali Hossain and that he had not impressed his thumb-mark on any document in the presence of Swarana Kumar Dey. A certified copy of the Heba-nama was shown to the witness and he denied having executed and presented the original thereof before the Sub-Registrar. Evidence was also tendered that the thumb impressions of the two appellants were taken by the investigating officer in the presence of Magistrate and those specimen thumb impressions were compared with the thump impressions in the register at the sub-registry at Berhampore by a a hand-writing expert and that the thumb impressions of the first appellant tallied with the thumb impressions in the said registrar and not with the thumb impressions of Kaimuddin Sheikh. In the view of the High Court sufficient to establish against the two offences of forging a valuable security and abetment thereof.

(c) and 82 (d) of the Indian Registration Act-the offence of false personation and in such assumed character presenting a document, and abetment thereof and that so long as the order of acquittal was not set aside in an appeal duly presented, the High Court in a reference under s. 307 of the Code of Criminal Procedure was incompetent, relying upon the evidence which was not regarded as reliable in respect of the offences under the Registration Act, to convict the appellants of the offences of forging a valuable security and abetment thereof. It was submitted that as the offences under s. 467 I.P. Code and s. 82 (c) Indian Registration Act formed part of the same transaction and the case for the prosecution for the former offence was substantially founded on the same evidence which was not accepted by the trial Court when acquitting the appellants of the latter offence, the High Court could not act upon .hat evidence to record an order of conviction on the charge for the offence of forging a valuable security. Se are unable to accept this argument. Forging a valuable security and presentation of that valuable security for registration are two distinct offences. In support of the case that the appellants were guilty of forging a valuable security the material evidence is that relating to the making dishonestly or fraudulently of a false document of the nature of a valuable security. That evidence consisted of the instructions given at the time of writing of the document, the character of the document, its execution, and the intention of the accused in fabricating the document. The offence of false personation for presenting any document consisted in the presentation of a document before the registering authority by a person claiming to be some one else. An item of evidence may corroborate charges for more offences than one : but acquittal of the accused for one such offences will not render that item of evidence inadmissible in assessing the criminalityof the accused for another offence corroborated thereby. The question in such a case is not oneof admissibility but of weight to be given to that evidence. The decision of the Judicial Committee of the Privy Council in Malak Khan v. King Emperor (1), negatives the submission of the appellants. In Malak Khan's case the accused was charged before the Court of Session for offences of murder and robbery. He was acquitted by the Trial judge of the offence of robbery and convicted of the offence of murder. The High Court in appeal against the order of conviction relied upon the evidence which was material to both the charges of robbery and murder, as corroborative of the guilt of the accused for the offence of murder. It was held by the judicial Committee that the High Court could properly accept the evidence as corroborative of the guilt of the accused for the offence of murder, even though that evidence was not accepted by the trial (1) (1945) L.R. 72 I.A. 305.