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Kachrulal Vs. P.H. Mawle and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1952CriLJ215
AppellantKachrulal
RespondentP.H. Mawle and anr.
Excerpt:
.....is satisfied in this case because this document was produced in evidence but the question is whether mawle who produced the document as an objector laying claim to the lorry on the strength of the forged document could be regarded as a 'party to the proceeding' between kachrulal and ramkishen......of the lorry to the name of the accused. this document is also according to the complainant a forged document.2c. on 26.4.1357 fasli, mawle, the accused, is said to have filed his application for transfer of the lorry in his name appending therewith the letter of 5th isfandar said to have been written by kachrulal to the commissioner of police.2d. on 11th farwardi 1357 fasli the complainant filed a complaint against his servants ramkishen and khajamian in the criminal court for cheating and criminal breach of trust and applied to the court that the lorry which had been unlawfully pledged with mawle be seized and brought to court, the lorry was seized and brought to court.2e. on 3rd ardebihist 1857 fasli in the court where the proceedings relating to cheating and criminal breach of.....
Judgment:
ORDER

1. These are three Revisions which have been filed by the complainant against the order of the Magistrate refusing to frame a charge and discharging the accused. Two Revisions have been filed in the cases against Mawle of cheating and criminal breach, of trust and of forgery and another Revision has been filed in the case against Ramkishan. The Revision Petitioner in all these cases is one Kachrulal and all the offences are said to have been committed in connection with a motor lorry which belonged to the complainant Kachrulal. The complainant alleged that his motor lorry was sent to Hyderabad from Lathur for renewal of the licence and was pledged with the accused, Mawle, by his servants, Ramkishen and Khajamean dishonestly. He further stated that he protested against this by sending his men. The complainant stated that very soon the accused Mawle with whom the motor lorry was pledged got a document from his servants purporting to be executed by the complainant as having sold the lorry to him. The complaint further stated that Mawle also filed an application purporting to be on behalf of the complainant, to the Commissioner of Police, requesting that the lorry be registered in Mawle's name. The case of the complainant was that both the documents relating to the sale of the lorry and the application to the Commissioner of Police do not contain his signature and they are both forged.

2. Some dates would be relevant to understand the course of events in this case. It is stated by the complainant that he received a letter on the 12th of Bahman 1357 Fasli from one Pundlik who purported to write the same on behalf of Mawle, the accused, stating that the complainant's servants Ramkishen and Khajamian had obtained a sum of Rs. 1,200/- from Mawle and pledged the motor lorry with Mawle and therein it was stated that the amount might be repaid and the lorry redeemed.

2a. The next date of importance is the 5th Isfandar 1357 Fasli. This is the date on which, it is stated, that the document relating to the sale of the lorry to the accused was fabricated and the signature of the complainant forged at Lathur.

2b. Another document of the same date namely, 5th Isfandar 1357 Fasli is a letter purporting to have been written by Kachrulal to the Commissioner of police requesting him to transfer the ownership of the lorry to the name of the accused. This document is also according to the complainant a forged document.

2c. On 26.4.1357 Fasli, Mawle, the accused, is said to have filed his application for transfer of the lorry in his name appending therewith the letter of 5th Isfandar said to have been written by Kachrulal to the Commissioner of Police.

2d. On 11th Farwardi 1357 Fasli the complainant filed a complaint against his servants Ramkishen and Khajamian in the Criminal Court for cheating and criminal breach of trust and applied to the Court that the lorry which had been unlawfully pledged with Mawle be seized and brought to Court, The lorry was seized and brought to Court.

2e. On 3rd Ardebihist 1857 Fasli in the Court where the proceedings relating to cheating and criminal breach of trust were pending, Mawle filed an application stating that Kachrulal had sold the lorry to him and the lorry may therefore be released and handed over to him. Kachrulal prayed that it may be given to him. The Magistrate refused to hand over the possession of the lorry to Mawle. He declined to hand over the lorry to either of the parties. Mawle and Kachrulal preferred separate Revisions to the High Court. The High Court eventually decided in favour of Mawle in Azur 1358 Fasli to which we will refer in due course.

2f. After this date, on 14th Ardeibhist 1357 Fasli the complainant filed a complaint in the criminal Court charging Mawle with cheating and criminal breach of. trust. The proceeding in the High Court terminated in Azur 1358 Fasli resulting in an order by the High Court directing the release of the lorry in favour of Mawle. These cases were pending and it was not until 2nd Thir 1358 Fasli, that is to say, seven months after the High Court proceedings that the complainant filed the present complaint out of which one of the Revisions has been filed.

3. This complaint was on a charge of forgery and also under Section 400, Hyd. Penal Code : 471 of the Indian Penal Code, namely, knowing a document to be forged and using it dishonestly. After recording the evidence tendered on behalf of the complainant the lower Court came to the conclusion that there was no prima facie proof for framing a charge against Mawle under Sections 394 (463, I.P.C.) and 400 (471, I.P.C.) and also for cheating and criminal breach of trust. It is against these orders that two Revisions have been riled by the complainant in this Court. The complaint against Ramkishen also was dismissed and the accused was discharged. A Revision has been filed against that order.

4. According to the established practice of this High Court we would not have ordinarily interfered at this stage with the finding of the Magistrate refusing to frame a charge, for the High Court rarely interferes in a Revision against an order of discharge but it was pointed out by the Vakil for the complainant that there was conclusive documentary proof implicating the accused Mawle with the offence and so we permitted him to take us through the evidence in the case and we heard the arguments of the respective Vakils in detail. We are of opinion that these Revisions should be dismissed.

5. The only evidence on which the learned Vakil for the complainant relies as regards the charge of forgery is that of the hand-writing expert. No doubt the hand-writing expert to whom the disputed documents were sent has given a report that the signature on the two documents of 5th Isfandar 3 357 Fasli do not agree with the signatures of Kachrulal which were taken in Court and he says that the signature on the documents of 5.4.1357 Fasli have been traced. Curiously enough the witnesses who have been examined on behalf of the complainant say that Pundlik actually forged the signature of Kachrulal on the document at Lathur; therefore, it comes to this that either the witnesses are uttering falsehood or that the hand-writing expert's opinion is wrong. In the face of such conflict we are not prepared to attach much importance to the evidence of either. It has to be borne in mind that it is admitted that Mawle was not present at Lathur., on 5.4.1357 Fasli and therefore there can be no question of his having forged the document. So far as the case against Mawle under Section 394 (463, I.P.C.) is concerned the case of the complainant is only that Mawle's servant Pundlik forged the signature of the complainant at Lathur. Therefore no charge of forgery can be foisted on Mawle even according to the complainant's case. Therefore there can be no occasion for a charge of forgery.

6. Then the only case which has to be dealt with is the case against the accused of Section 400 (471, I.P.C). The question that has to be determined is as to whether the accused Mawle had knowledge of the fact that it was a forged document and knowing it to be a forged document used it for his own benefit. Knowledge in such cases cannot be imputed. It has got to be proved as a fact that the accused had knowledge. Knowledge cannot be inferred. The ground on which the Vakil for the complainant argues, that it must be held that Mawle had knowledge of the forgery, is that Mawle knew that the lorry had been pledged with him and without making proper enquiry as to whether Kachrulal was selling it, he got the lorry transferred in his name on the strength of a document produced by the servants of Kachrulal, We are of opinion that at best this act of Mawle can be regarded only as one of negligence if it turned out to be an unauthorized act. The utmost that could be said is that he did not act as a prudent man would do under such circumstances. In this case the learned Vakil laid stress upon the fact that having known about the pledge within a short time of it to get the lorry transferred on the strength of a document without there not having been negotiations for the sale, certainly shows that he had knowledge of the document not being a genuine one. In the first place the learned Vakil assumes that the pledge relied upon by him has been proved. The trial Court has as a fact, found that the pledge has not been proved. Therefore, it will not be proper to base any case upon the assumption that the pledge transaction had been proved. In order to bring a case within the four corners of Section 400 (471, I.P.C.) it must be established that the accused knew or had very good reason to believe that it was not the signature of the person by whom the document is said to have been written. If it had been proved that he had been a party to the concoction then also the case under Section 471 would be made out. In this case both the ingredients are absent. The mere negligence or want of prudence where it falls short of the statutory intentions would not be sufficient for the purpose. The use of a forged document which involves a representation by the accused that it is genuine coupled with a knowledge on the part of the user that it is forged will alone bring it within the purview of Section 471 of the Penal. Code. We may also point out that the fact that the document bears a suspicious appearance on the face of it cannot be regarded as prima facie evidence of guilty knowledge of the accused that it is not a genuine document but a forged one. Forgery cannot be presumed as a matter of law. It must be established as any other fact. The mere fact that the purchaser of a property is in possession of a document which is shown to be a forgery would be no evidence of the guilt of the purchaser. We must herein point out that the evidence that the document which was used by the accused was proved to be a forged document has not been established by the evidence led on behalf of the complainant.

6a. The learned Vakil for the complainant cited before us the case of 'In the matter of Ranchod Das Nagar Das', 22 Bom 317. We are afraid that this case far from helping the complainant is against the contention advanced by the Vakil. In that case it was decided that there was no duty cast upon the lawyer before whom a forged document is produced to examine and observe and find out as to whether it was forged or not and if in the usual course he filed a document in Court no charge under Section 471 could be based on the ground that he used the document having knowledge of the fact that it was a forged document. We feel that here there has been only an attempt on the part of the complainant to get back the lorry by setting the criminal law in motion against the accused. We have also to point out that there has been enormous delay on the part of the complainant to file this charge of forgery, It was not until full seven months had passed that he thought of filing this charge of forgery. Merely on this ground of latches the complainant's complaint is liable to be thrown out. We find that the lower Court has discussed the evidence in detail and has come to the conclusion that neither the forgery not the knowledge of the forgery by Mawle has been established. Therefore on all these grounds, we are not prepared to interfere with the order of the lower Court.

7. The lower Court dismissed the complaint of the complainant also on the ground that the sanction required under Section 199(c) of the Hyderabad Criminal Procedure Code, corresponding to Section 195(c) of the Indian Criminal Procedure Code had not been obtained. The learned Vakil for the Petitioner urged that this was not a case where permission was necessary as Mawle was not a party to the proceeding. The document was given in evidence in the proceeding against Ramkishen and Khajamian. In the case of cheating and criminal breach of trust filed against Ramkishen and Khajamian the lorry which was in the possession of Mawle was attached and brought to Court and when Mawle came to know that the lorry which was in his possession was attached and taken to the Court, he applied to the Court for its being released in his favour and at this stage he produced the alleged forged document purporting to be a document of sale by Kachrulal in favour of Mawle. It was argued by the learned Vakil that he merely appeared as an objector or a third party to the proceeding asking for the release of the lorry and therefore he could not be regarded as a party to that proceeding within the meaning of Section 195(c) of the Indian Criminal Procedure Code.

8. Although it is not necessary for us to dilate upon this question for the simple reason that on the merits we have come to the conclusion that this Revision is liable to be dismissed, still inasmuch as it was argued as a question of law we desire to make our observations. Section 195, as would appear, has been enacted as a safeguard against irresponsible and reckless prosecutions by private individuals, in respect of offences which relate to the administration of justice and contempt of lawful authority. In such cases it has been provided that the Court shall not take cognizance of an offence under Sections 463 or 476 of the Penal Code without a complaint in writing of the Court or Court subordinate to it. The essential ingredients of Section 195 are that (a) the offence of forgery must have been committed by a party to a proceeding and (b) it must be in respect of a document produced or given in evidence.

9. Admittedly one of the prerequisites mentioned above for the application of Section 195(c) is satisfied in this case because this document was produced in evidence but the question is whether Mawle who produced the document as an objector laying claim to the lorry on the strength of the forged document could be regarded as a 'party to the proceeding' between Kachrulal and Ramkishen. It cannot be gainsaid that when an objector lays claim to the subject-matter of the proceeding he is a party to the proceeding for the purpose of Section 195. He becomes a party to the proceeding immediately he invokes the jurisdiction of the Court for some redress. No restricted meaning could be attached to the words 'party to the proceeding' appearing in the Section. It has to-be understood in its normal sense. It cannot be said that in a complaint proceedings the complainant and the accused are the only parties to the proceedings. A third party who intervenes and lays claim to the subject-matter involved in those proceedings must also be regarded as a party to the proceeding, for the Court has to adjudicate upon the title of the respective parties and come to a decision with regard to the subject-matter involved in the case. Thus Mawle cannot be regarded as a person who was not a party and if he was a party to the proceeding the case would come within the four corners of Section 195, Clause (c) of the Criminal Procedure Code and therefore sanction of the Court was necessary in the case. We, therefore, hold that the complaint is liable to be dismissed even on the ground of want of sanction.

10. The result is that the Revisions of Kachrulal against Mawle are dismissed. We do not think it necessary to deal in expense about the Revision in the case against Ramkishen. That Revision also is dismissed. A copy of this Judgment be made part of the record in each of the respective Revisions.


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