1. The applicants Krishnarao, Narayanrao and Laxman were convicted and each sentenced to undergo one year's rigorous imprisonment and to pay a fine of Rs. 200/- by the Section 30 Magistrate, Washim, under Sections 467, and 471, Section 467, and Section 467 read with Section 109, Penal Code respectively; and in appeal the Sessions Judge, Akola, affirmed the convictions and maintained Krishnarao's sentence, but reduced the sentence of Narayan to 9 months' rigorous imprisonment and a fine of Rs. 100/- and that of Laxman to six months' rigorous Imprisonment and a fine of Rs. 50/-. The applicants have now come up in revision to this Court.
2. There was a dispute between Krishnarao, who is Narayanrao's brother, and Bhagwan (P.W. 1) concerning a house in Wai, Washim 'taluq'; and on 10.10.1946 Krishnarao filed Civil Suit No. 468-A of 1946 in the Court of the Second Civil Judge, Class II, Washim, for possession of it and for Rs. 108/- on account of rent for the period 30.9.1943 to 30.9.1946 against Bhagwan and his brothers. Narayan was impleaded as a defendant on the grounds that the contract of rent was negotiated by him and he had stood surety for the tenant. The rent note Ex. P-1, dated 30.7.1943, was filed by Krishnarao in support of his claim. After Bhagwan abjured the execution of the rent note and contested the claim, Krishnarao sought and obtained permission to withdraw the suit with liberty to institute a fresh one. He thereafter filed Civil Suit No. 187-A of 1947 in the same Court for possession of the house and obtained a decree therefor. The appeal filed by Bhagwan and his brothers was dismissed by the Additional District Judge, Washim.
3. After the withdrawal of the earlier suit, Bhagwan applied for the prosecution of the applicants on the grounds that the rent note was ante-dated, forged and used as genuine; and when an inquiry was made under Section 476, Criminal P.C., the application was allowed and a complaint against the applicants under Sections 465, 467 and 471, Penal Code was made to the First Class Magistrate, Washim. The prosecution case was, shortly stated, to the effect that as the printed form of the rent note was issued from the Rajasthan Press, Akola, in 1945, it could not be used in 1943 and that all 3 applicants acted in collusion as it was written by Laxman, was in Krishnarao's favour and indicated that Narayan had secured the house for Bhagwan and stood surety for him.
4 to 9. His Lordship discussed the evidence, observed that it was abundantly clear that the object of the preparation of the rent note was to show that it had been executed on 30.7.1943 and that from that date Bhagwan had agreed to pay rent at the rate of Rs. 3/- 'per mensem' and concluded that the conclusion that the creation of the rent note was due to collusion between the brothers Krishnarao and Narayanrao as well as Laxman Is inescapable.
10. The gist of the offence under Section 463, Penal Code is the intention to cause damage or injury; and It is immaterial whether damage, injury or fraud is actually caused or not - Kalyanmal v. Emperor AIR 1937 Nag 89 It was also held in - Empress v. Dhunum Kazee 9 Cal 53 that even if a man has a legal claim or title to property, he is guilty of forgery if he counterfeits documents in order to support it; and in - Sivananda Mudali In re : AIR1926Mad1072 , Devadoss J. said that the question whether a document was a false document or not did not depend upon the adjudication of the Court on the claim or title which was intended to be propped up by the false document.
11. Ex. P-1 was undoubtedly a valuable security as defined by Section 30, Penal Code; and Krishnarao and Narayanrao were liable under 8. 467 'ibid', while Laxman was liable under that, section read with Section 109 'ibid'. Krishnarao was also liable under Section 471 'ibid'. The conviction under that section was set aside in - Kalidin v. Emperor AIR 1919 All 387 because the accused had not behaved dishonestly or fraudulently within the meaning of the law; and in - Manika Asari v. Emperor AIR 1915 Mad 826 it was held that the term 'dishonestly' must relate to an advantage to which a party perpetrating a deceit is not legally or equitably entitled. In the instant case, however, Krishnarao, although entitled to possession of the house, was not entitled to rent at a fixed rate and he clearly intended to cause wrongful gain.
12. The convictions were, therefore, in order and they are affirmed. Although the offences were grave and exacerbated by the fact that the applicants advanced false defences, I do not think that they should be returned to jail where they have already served about 15 days of their sentences. The claim to the house was valid and Bhagwan had no right to it. Krishnarao and his brother are elderly cultivators; and in AIR 1937 Nag 89 (A) 'Supra' Gruer J. set aside a sentence of imprisonment on the ground that the applicant had not attempted to make out a claim for which there was no basis at all. The sentences of imprisonment are set aside in each instance and replaced by fines of Rs. 200/-, Rs. 100/- and Rs. 50/. In all, therefore, Krishnarao shall have to pay a fine of Rs. 400/-, Narayanrao a fine of Rs. 200/- and Laxman a fine of Rs. 100/-. In default of payment, they shall undergo 6 months, 4 months and 2 months rigorous imprisonment respectively.
13. The application is, subject to these modifications, dismissed.