N.G. Chandavarkar, J.
1. In ray opinion the case is a very clear one, and the learned Sessions Judge has fallen into errors both of law and of fact in reversing the careful judgment of the Magistrate, who tried this case and convicted the accused.
2. First, we have the admitted handwriting of the documents which consist of letters, deeds and post-cards. The hand-writting on them is admitted to be that of the accused. Now, comparing that handwriting in Modi with the Modi handwriting on the disputed letter, Exhibit 1 A, I have no hesitation whatever in saying that it is the accused's handwriting. The resemblance, in my opinion, is very close, and whoever is familiar with Modi handwriting must, I think, come to that conclusion. It is unnecessary for me to detail the reasons which have led me to that conclusion, but I may say in short that the matras, the cast of the writing, and the similarity of most of the letters, all are, in my opinion, a warrant for holding that the writer of Exhibit 1 A is the same as the writer of Exhibits J, I, K, and the post-cards (Exhibit G).
3. Then there is the evidence of the Postmaster. The learned Judge has not disbelieved him, at the same time he does not appear to have applied his mind to the testimony of that witness with the attention it deserved. I think that it is impossible to give any sound reason for setting aside the clear statements of the Postmaster, who is positive in affirming that he saw Nadkar post two letters, one of which happens to be Exhibit 1 A.
4. And then there is the evidence of Nadkar himself. I think that on these grounds we must come to the conclusion that the trying Magistrate was right. The learned Sessions Judge seems to have been influenced in his opinion as to Exhibit 1 A by the law laid down in a judgment of the Calcutta High Court, which he has cited, on the construction of Section 73 of the Evidence Act. That section says :-' In order to whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, A writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, or seal has not been produced or proved for any other purpose '. And in the Calcutta judgment the words ' by whom it purports to have been written or made' have been A construed to mean that the writing which is in dispute must itself in terms express or indicate that it was written by the person to whom the writing is attributed. One meaning of the word ' purports ', as given by Murray in his Dictionary, is ' alleged,' and therefore it is reasonable to construe these words to mean ' by whom it is alleged to have been written or made.' Or even if we take the word 'purports' in the sense which is generally attributed to it, we may say that when an anonymous writing is produced and ascribed by the prosecution to a particular person, then the case for the prosecution must be taken to be that having regard to the admitted documents, and the comparison between them and the disputed writing, the prosecution alleges that the disputed document purports to have been written or made by the accused. Any other construction would exclude a number of writings and thus enable the offenders to escape from the law. The practice hitherto in this Court, so far as my knowledge goes, is in support of this construction of the section and I am not aware that it was ever objected to till now.
5. For these reasons the appeal preferred by Government from the order of acquittal ought to be allowed, and the order of the learned Sessions Judge must be set aside, and the order of the Magistrate convicting and sentencing the accused ought to be restored.