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Mulchand Bader Vs. the State of Assam and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantMulchand Bader
RespondentThe State of Assam and anr.
Excerpt:
- - ii with intent to defraud the complainant jainal abedian as well as the s. ' 4. in regard to the first ingredient of the offence he found clearly that there was alteration in a valuable security. 6. the quashing of the commitment would be justified in the contention that there is absolutely no evidence to support the charges is well founded. state' air 1953 bom 33 (b the learned judge held in this case that it is perfectly true that it is not the duty of the public prosecutor to lead all evidence before the committing magistrate, but he must lead and it is his duty to lead sufficient evidence which would make it possible for the magistrate under section 210 to be satisfied that there are sufficient grounds for committing the accused for trial to the sessions......applied to be permitted to produce defence evidence. five defence witnesses were examined. the learned magistrate after recording the defence evidence reconsidered the whose case for determining whether a prima facie case for commitment had been made out. his conclusions as stated in order of commitment may be briefly reproduced. they are as follows:1. from all this evidence it is clear that in ex. ii the plot number conveyed has been erased and altered and the correct plot number has been inserted although without going through the legal and proper procedure and without lawful authority.2. it has been proved that the material part of a valuable security has been altered without proper authority.3. the two findings reproduced above were qualified by a statement to the following.....
Judgment:

Ram Labhaya, J.

1. This is a petition Under Section 215 read with Section 561 A, Criminal P. C. Petitioner Mulchand Bader has prayed for the quashing of his commitment which has been ordered by Shri S. N. Sen, Magistrate, 1st Class, Tezpur by his order dated 31-12-1954. He has been committed to be tried for two offences namely (1) Under Section 467, Penal Code, for forging a sale deed Ex. II with intent to defraud the complainant Jainal Abedian as well as the S. D. C. at Tezpur and with intent to support his claim for a mutation in case No. 413 of 1950-51 and (2) Under Section 471, Penal Code, for fraudulently using as genuine the sale deed Ex. II which he knew or had reason to believe at the time he used it to be a forged document on or about 10-7-1951.

2. The commitment came to be ordered under the following circumstances. The land of which mutation was sought is situate in the town of Tezpur. It is comprised in patta No. 72 which has two dag Nos. 1617 and 1869. Badhu Sing was the original owner of this patta land. He transferred both the dags of the patta by two registered sale deeds. Dag No. 1617 was conveyed to the petitioner's firm known as Rawatmal Mulchand. The other dag No. 1869 was conveyed to Rajendra minor son of Mulchand. The two sale deeds were executed on the same day. They were also registered on the date of 4 execution in Calcutta. Mulchand, the petitioner applied for a mutation of dag No. 1617 in the court of S. D. C. on 10-7-1951 on the basis of Ex. II. The document as presented purported to convey dag No. 1617.

It was brought to the notice of the S. D. C. by Jainal Abedin that the dag number in the document had been altered. He set up the case that the document by which mutation of dag No. 1617 was sought did not really convey the land. The S. D. C. made some enquiry and as a result of it lodged a written complaint acting Under Section 195, Criminal P. C. in the Court of the District Magistrate against Mulchand for offences Under Sections 465/467/468/471. The District Magistrate transferred the case to the Court of Mr. Sen. He recorded prosecution evidence and also the statement of the accused. He framed charges Under Section 465 and Section 471.

this Court was moved by Jainal Abedin for the purpose of obtaining a direction that the case being exclusively triable by the Court of Session should be committed to the Court of Session as the alteration in the document constituted an offence not Under Section 465 but Under Section 467.

This move succeeded and it was ordered that the case was fit for commitment to the Court of Session under Sections 467 and 471, the alleged alteration being in a valuable security. After this direction charges were framed Under Sections 467 and 471. It is at this stage that the accused applied to be permitted to produce defence evidence. Five defence witnesses were examined. The learned Magistrate after recording the defence evidence reconsidered the whose case for determining whether a prima facie case for commitment had been made out. His conclusions as stated in order of commitment may be briefly reproduced. They are as follows:

1. From all this evidence it is clear that in Ex. II the plot number conveyed has been erased and altered and the correct plot number has been inserted although without going through the legal and proper procedure and without lawful authority.

2. It has been proved that the material part of a valuable security has been altered without proper authority.

3. The two findings reproduced above were qualified by a statement to the following effect:

There is however no sufficient evidence to show that the alteration was made by the accused himself, although circumstances lead to this presumption as the document was in the custody of the accused and he himself filed and produced the document for mutation. There is also no clear evidence if the accused produced the document 'dishonestly' as ther appears to be no 'wrongful gain' by him or 'wrongful loss' to others as he is legally entitled to both the plots of land.

3. In view of the dear ruling in 'Empress of India v. Fateh', 5 All 217 (A), the question of fraud by the accused in the Court of the S. D. C. appears-to be doubtful. As this is a question of fact which is exclusively within the jurisdiction of the Court of Session to be determined by the jury I think the matter will be properly decided there.'

4. In regard to the first ingredient of the offence he found clearly that there was alteration in a valuable security. On the point whether the accused himself made it, he stated that there was no direct evidence though a presumption on that point against the accused was possible. On the question whether the alteration was made dishonestly, he found no evidence against the accused. On the further question whether the alteration was made fraudulently or with intent to defraud, he referred to the decision reported in 5 All 217 (A), and seemed to be doubtful.

5. The question in these circumstances is whether commitment can be quashed Under Section 215, Criminal P. C. This section provides that a commitment once made can be quashed by the High Court only and only on a point of law. There is very great emphasis on the requirement that it must be on a question of law alone that a commitment may be quashed. Mr. Ahmed has contended strenuously that this ease falls within the ambit of Section 215. lie argues that the commitment is liable to he quashed as there is absolutely no evidence to support it and no evidence for showing that the accused committed the offences he is charged with. He urges that in the absence of any evidence in support of the charges, the commitment would be illegal. The total absence of evidence bringing nut all the ingredients of the offence is a question of law.

6. The quashing of the commitment would be justified in the contention that there is absolutely no evidence to support the charges is well founded. In support of his contention one of the cases relied on by Mr. Ahmed is a decision of Chagla C. J. reported in 'Krishnaji v. State' AIR 1953 Bom 33 (B The learned Judge held in this case that

It is perfectly true that it is not the duty of the Public Prosecutor to lead all evidence before the Committing Magistrate, but he must lead and it is his duty to lead sufficient evidence which would make it possible for the Magistrate Under Section 210 to be satisfied that there are sufficient grounds for committing the accused for trial to the Sessions.

If there is evidence, then it is for the Magistrate to weigh that evidence, and it is open to the Magistrate if the evidence is worthless not to waste the time of the Court of Session by committing the accused. It is true that the Magistrate should not play the role of the jury. It is not for him to consider whether the conviction is probable. If the conviction is possible at all on the evidence led, it is the duty of the Magistrate to commit the accused to Sessions. But the conviction must be possible. The fact that there is no evidence at all against the accused is a question of law on which the High Court can certainly interfere and quash the committal order.' The learned Government Advocate and Mr. Ghose on behalf of Jainal Abedin have been heard. They have not disputed the correctness of the proposition laid down by the learned Chief Justice in this case. There is thus no quarrel with the law laid down by the learned Chief Justice. The proposition, stated by him is correct and I subscribe to it with all respects to him. The court certainly has got the power to quash a conviction if it can come to the conclusion that there is no evidence at all to support the charge and it is open to the committing Magistrate to examine the question from that viewpoint.

But it must be borne in mind that all that the Magistrate has to see is that there is a case for commitment. He has not to see that the evidence should make the conviction probable. If there is evidence, which if believed would justify conviction or if there is evidence from which inference of guilt may possibly be drawn, it would be the duty of the Magistrate to commit. He would not be justified in taking on himself the duties of the judge or the jury.

7. In this view of the law, all that has got to be seen is whether as contended by Mr. Ahmed there is absolutely no evidence at all in support of the charges, A minute and detailed consideration of evidence may possibly prejudice the trial. I therefore refrain from doing so particularly in view of the conclusion I have reached. The evidence discloses that a valuable security has been altered. It was utilised for obtaining a mutation.

If die move had succeeded, the mutation would have been in favour of the firm about a plot of land which was not conveyed to it. The main point in 'the case would be whether the requisite knowledge or intent needed for substantiating the charge Under Section 471 was proved or could be inferred from proved facts. In regard to the charge Under Section 467 the question is whether it is possible to hold the accused guilty of forging the document by the alleged alteration. I am not persuaded to say that there is no evidence at all which would justify commitment of the accused on the charges for which he has been, committed to be tried. There is thus no point of law on which the commitment may be quashed. The petition is dismissed and the Rule discharged.

Sarjoo Prosad, C.J.

8. I should guard myself against accepting in toto the views expressed by Chagla C. J. in 'AIR 1933 Bom 33 (B)' to which my learned brother has referred. I find that the learned Chief Justice sitting singly appears to have gone against the decision of a Division Bench of his own court given earlier. I however agree to the order proposed in this case.


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