1. This is an appeal by one Lala Kedar Nath, who has been convicted by the learned Additional Sessions Judge of Cawnpore, at Banda, of an offence under Section 471, Penal Code, and has been sentenced to undergo six months' R.I. and to pay a fine of Rs. 500. The charge against the appellant arose in the following circumstances:
On 30th May 1934, the appellant filed a suit against one Ram Nath for recovery of a certain amount on the basis of a pro-note. The pro-note in question and the receipt were however not filed along with the plaint, and it was stated that they would be produced on the next date of hearing. The pro-note in question was alleged to have been executed on 31st May 1931, so that the suit was just within time. The next date of hearing in the case was 30th July 1934. On that date a written statement was filed on behalf of the defendant, in which it was definitely alleged that the plaintiff had probably committed some forgery in the pro-note and the receipt in his possession as they had become time-barred. After that written statement was put in, the defendant's counsel applied to the Court to compel the production of the pro-note and the receipt. The Court accordingly ordered the production of those documents. Instead of producing the documents, as ordered by the Court, the appellant made an application in which he said that he had not brought the documents and had not summoned any witnesses. On this ground he wanted the case to-be adjourned. The Court rejected his-prayer and insisted on proceeding with the trial of the suit. The plaintiff was asked to bring the documents in question, and in the meantime the Court took up another case. After sometime the trial of the suit was resumed, and there are two different stories as to what happened thereafter. The appellant's case is that, as soon as the trial was resumed, he made a statement to the Court in which he proposed to-abide by the oath of the defendant on the question as to whether he had borrowed any money on 31st May 1931, as alleged by the appellant. The defendant agreed and taking the proposed oath made a statement that he had not borrowed any money from the appellant on that date. Now it is definitely alleged on behalf of the defence that, even after the defendant's statement had been recorded, the Court insisted on the production of the pro-note and the receipt on which the suit was based.
2. In compliance with that order the appellant produced the receipt, but not the pro-note, which he did not have in his possession at the time. The prosecution case, on the other hand, is that after the resumption of the trial the appellant produced the receipt which was examined by the Court and was found to have been tampered with. It was then handed over to the defendant's counsel, who also expressed his, opinion to the effect that the document was suspicious. It is an admitted fact that the date on this receipt had been-altered from '21st May 1931' to '31st May 1931.' The prosecution case is that, when the plaintiff realized that the receipt produced by him was considered to be a suspicious document by the Court, he tried to make the be sit of a bad bargain by making the proposal to abide by the defendant's oath. After dismissing the suit on the statement made by the defendant, the Court issued a notice to the appellant to show cause why he should not be prosecuted for an offence under Section 471, Penal Code. The matter was pursued in an enquiry under Section 478, Criminal P.C., and the learned Munsif himself committed the appellant to the Court of Session to stand his trial on a charge under Section 471, Penal Code. He has now been convicted on that charge and sentenced as mentioned above. Hence this appeal.
3. The main point urged on behalf of the appellant by the learned Counsel who has appeared on his behalf in this Court is that the decision of the case really turns on the question as to whether the receipt in question, which is admittedly a forged document, was voluntarilly produced by the appellant prior to his leaving the suit to be decided on the defendant's oath. It is argued that if the answer to that question is in the negative, then the appellant's conviction cannot possibly stand, because if the receipt was produced, after the suit had come to an end, in compliance with an order of the Court, there was no voluntary use of the document within the meaning of Section 471, Penal Code. I have no hesitation in holding that the use of a document contemplated by Section 471, must be a voluntary one, and not the mere production of the document in compliance with an order of the Court which must be obeyed. It has further been argued ton behalf of the appellant that, if it is found that the receipt was produced sometime after the suit had come to an end as a result of the defendant taking the proposed oath and denying the loan on which the suit was based, the appellant could not possibly have had a fraudulent and dishonest intention, as required by Section 471, Penal Code. This contention is also obviously sound and must prevail. It is thus clear that the decision of the case turns on the question of fact as to whether the receipt, which is the basis of a charge against the appellant was produced before the appellant left the suit to be decided on the defendant's oath, as alleged by the prosecution, or sometime after that proceeding on the insistence of the Court itself.
4. In order to decide that question we have to consider the evidence of three witnesses only, viz. (1) the learned Munsif, who tried the suit and committed this case to the Court of Session, (2) the Vakil for the plaintiff, and (3) the Vakil for the defendant. Having carefully considered the evidence of these witnesses I find that it does not definitely establish the fact that the receipt in question was voluntarily produced by the appellant before he proposed to abide by the defendant's oath. So far as the evidence of the learned Munsif is concerned, it is, no doubt, true, that he seems to be almost positive in his examination-in-chief that 'the plaintiff left the decision of the case on the oath of the defendant as a last resort.' It appears however that at the end of his deposition the learned Sessions Judge put a definite question to him to the following effect:
Is it a fact that you asked the plaintiff to file the receipt after he had left the matter on the oath of the defendant?
5. From the answer to this question given by the learned Munsif it would appear that he was not quite certain in his mind as to the sequence of the two events, and so he stated that so far as he remembered it was a fact that the plaintiff 'made the statement about the oath of the defendant after he had filed the receipt.' This statement is obviously not quite so positive and strong as the one to be found in his examination-in-chief, which I have referred to above. It has to be noted that these statements were made on 15th March 1935, about 8 months after the date on which the events in question took place. It is obvious therefore that the memory of the learned Munsif could not possibly have been so fresh as it was when he recorded his order of commitment on 5th December 1934, after an enquiry under Section 478, Criminal P.C. When I turn to that order of commitment, I find therein a very clear statement to the following effect:
Petition Ex. E was made on behalf of the plaintiff alleging that the plaintiff has not brought the pro-note nor the receipt today and the suit may be adjourned. The Court again insisted and only receipt Ex. A was filed by Lala Kedar Nath along with the list Ex. E-1. Lala Kedar Nath before filing of the receipt gave statement Ex. K leaving the matter on the 'gangajali' oath of the defendant.
6. The learned Munsif has tried to explain away this clear and definite statement of fact by stating in his examination-in-chief that 'the remark in the commitment order that the plaintiff before filing the receipt had left the matter on the oath of the defendant is a slip of the pen.' I find it difficult to accept that explanation, because in doing so I have to rely entirely on the memory of the learned Munsif relating to certain events which had taken place 8 months before as against his own description of those events much earlier in point of time. As I have shown above, when a definite question was put to him by the Court regarding the sequence of the events in question, he had to rely entirely on his memory. Another reason why I am not prepared to accept the learned Munsif's explanation is that the prosecution story appears to me to be inherently improbable. I shall suppose, for the purposes of argument that the appellant had forged the receipt in question; but it is clear from his conduct as a whole that he was extremely reluctant to produce that receipt in Court and had made up his mind not to undergo the risk of a prosecution. That alone can explain why he left the suit to be decided on the defendant's oath. The fact that he did so is not denied. If he had made up his mind to abide by the defendant's oath, I see absolutely no reason why he should have gone out of his way to produce the receipt in question before leaving the suit to be decided on the defendant's oath. The production of the receipt was absolutely unnecessary and, in fact, calculated to expose him to the danger which he clearly wanted to avoid. As regards the other two witnesses for the prosecution, namely, the two vakils who appeared for the appellant and the defendant in that suit, all I need say is that none of them is prepared to make a definite statement on the point under consideration. Mr. Hari Shankar, the vakil for the appellant, clearly stated in his deposition, in answer to a pointed question on the point under consideration,
Kedar Nath did make this statement (statement proposing to abide by the defendant's oath) through me, but so far as I remember he had made this statement before he had produced Ex. A (i.e., the receipt in question).
7. He was further pressed on this point in his examination-in-chief, and he then stated that he could not swear whether Ex. K was made before or after the filing of the receipt Ex. A. Taken as a whole, his evidence 'undoubtedly favours the defence more than it does the prosecution. In any case, the prosecution cannot argue, on the basis of his evidence, that the voluntary production of the receipt in question before the proposal to abide by the defendant's oath had been established beyond all reasonable doubt. The same remark applies to the evidence of Mr. Hari Bahadur, the counsel for the defendant. He suggested in his examination-in-chief that the proposal regarding the oath was made sometime after the production of the receipt in question; but as soon as a question was put to him in cross-examination, he stated that he could not say whether the receipt was filed before or after the appellant's statement proposing to abide by the defendant's oath. In this state of the evidence I have no hesitation in holding that the prosecution has entirely failed to prove that the receipt in question was voluntarily produced by the appellant before he made the proposal to abide by the defendant's oath. Once the proposal was made and the defendant took the proposed oath and made a statement denying the appellant's claim, the case came to an end and the production of the receipt in question after that stage at the insistence of the Court could not possibly be either a voluntary or a fraudulent or dishonest use of the document within the meaning of Section 471, Penal Code. The result therefore is that I allow this appeal and set aside the conviction and the sentence. The fine, if paid, shall be refunded. The appellant need not surrender to his bail.