1. This is an appeal by Kedar Nath who has been sentenced, to rigorous imprisonment for a period of 41/2 years under Section 471, read with. Section 467, Penal Code, that is. for the offence of using as genuine documents which he knew or had reason to believe to be forged documents. It appears that one Ram Das filed two suits for arrears of rent against the appellant in the Court of the Tahsildar of Soram in the Allahabad District, viz., suit Nos. 556 and 557 of 1933. The appellant produced five receipts to prove payment of the amounts alleged to be due from him. Two of these receipts were admitted by Ram Das and the other three Exs. A.B and D were denied. Thereafter the appellant did not put in an appearance as defendant to the suits and he made no attempt to prove the three receipts which had been denied. On 17th May 1934, both suits were decreed after making allowance for the sums paid and acknowledged under the two receipts which, had been admitted. The appellant was then prosecuted in respect of the three disputed receipts. He was tried before a jury and as I have already said, he has been convicted.
2. One of the arguments addressed to me is that it cannot be said that the appellant used the receipts within the meaning of Section 471, Penal Code, because he merely filed them in Court land made no attempt to prove that they were genuine. Reliance is placed on Ambika Prasad Singh v. Emperor (1908) 35 Cal. 820. The facts in that case may not have been exactly similar. In this case the appellant certainly used these three receipts because they were placed before the plaintiff for admission or denial and the plaintiff denied them. If the plaintiff had been deceived and had admitted them the appellant would have achieved his object. The term 'use' is of wide meaning and I do not think that it can possibly be said that the appellant did not use the receipts.
3. The other argument is that the finding of the jury is vitiated by the admission of evidence which was not properly admissible and by the misdirection, of the learned Judge upon that point. There were five witnesses produced, the first two being the Tahsildar and an Honorary Assistant Collector to whom the cases in the Revenue. Court were ultimately transferred. Their evidence was merely formal. The third witness was Ram. Das, the plaintiff in the two suits. He did say that the receipts were forgeries. The other two witnesses were Brij Lal and liar Bux. Their evidence was that in two suits filed by them, in the years 1932 or 1933, the appellant produced forged receipts by way of defence and never attempted to establish them when they were denied. The contention is that the evidence of these two witnesses was inadmissible. There can be no doubt to my mind that it was inadmissible. The learned Judge has relied upon Section 15, Evidence Act. It is a well-known rule of law that the evidence of similar, but unconnected facts is not admissible to prove a, fact in issue. If a man is charged with a theft, the fact that he committed a previous, but unconnected theft is obviously no reason for thinking that he is guilty. One has only to consider a specific instance to discover how unreasonable it would be to allow such evidence to be produced. If a theft is committed for instance in the town of Allahabad it would obviously be absurd to arrest any previous convict and to say that he must be guilty because he had committed thefts on previous occasions. Section 15, Evidence Act, allows the production of evidence to prove knowledge or intention when the question of such knowledge or intention is in issue. If certain facts are proved which would constitute an offence if the necessary knowledge or intention were present and, if that knowledge or intention is denied, it is no doubt admissible to prove by the previous conduct of the accused person that he must have had the guilty knowledge or intention which was a requisite ingredient of the offence. The learned Judge in the present case has however Tndoubtedly used the evidence of these two witnesses not to establish that the appellant had a guilty knowledge or intention when he put in the receipts, namely the knowledge that the receipts were forged and the intention of using them dishonestly, but also for the purpose of deciding that the receipts were in fact forged. This is clear from his direction to the jury in his charge. He says:
Direct evidence of forgery cannot be expected. The mare denial of Rain Das would not be sufficient to hold the documents forgeries. I have pormitted the evidence of instances of the use of questionable document by the present accused in the suits of Brij Lal Singh to come on the record as to my mind that evidence was admissible under Section 15, Evidence Act.
4. It is clear that the learned Judge was telling the jury that the evidence of Ram Das was not sufficient to establish that the disputed receipts were in fact forgeries. If the evidence of the other two witnesses, Brij Lal and liar Bux, is excluded, there is no evidence except that of Ram Das to prove that the receipts were not genuine. It is quite clear that the evidence of these two witnesses is not admissible to prove the fact of the forgery. In view of the words used by the learned Judge in his charge I cannot, but believe that the jury were influenced in finding that the receipts were forged by evidence which was legally inadmissible to prove this fact. That being so, there was undoubtedly a failure of justice in this case because the appellant was found to be guilty on evidence which could not be used against him.
5. I should, perhaps, make it clear that in my opinion the evidence of the two witnesses would be admissible to show that the appellant deliberately used the receipts knowing them to be forged provided it is satisfactorily established from other evidence that they wore in fact forged. The result is that the appellant has not been properly tried and the only course is to direct that he should be tried again before another jury. I therefore set aside the conviction and sentences and direct that the appellant shall be retried for the offence with which lie is charged before another jury. If the appellant is on bail he shall remain on bail pending the orders of the Court below.