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ishar Chand Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1951CriLJ1497
Appellantishar Chand
RespondentThe State
Excerpt:
.....further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments..........receipt exh. p. e. and rs. 2900/- were paid before the registrar on the 30th of october 1939. the payment of money is shown in the endorsement exh. p. a/1 and is to the following effect:mangat ral and ishwar chand * * * the vendors have heard and understood the contents of the document and have admitted the execution of the same. manohar lai son of kanshi ram, caste mahajan, after counting the currency notes has paid rs. 2,900/- in currency notes to the vendors. * * *on the 12th of august, 1945, arjan das, 3 son or mangat raj and a brother of the accused, brought a suit to set aside the sale on the ground 'inter alia' that it was without consideration and without necessity. one of the issues in this suit was whether the sale was for consideration. the suit was: dismissed by the.....
Judgment:

Kapur, J.

1. This is a rule directed against an order of conviction and sentence of six months' rigorous imprisonment and a fine of Rs. 500/-under Section 193 of the Indian Penal Code

2. In order to appreciate the different points in this case it is necessary to give in greater detail the facts of the case. On the 30th of October, 1939, Mangat Ral and his son Ishwar Chand accused sold by registered deed a house to Manohar Lal for a sum of Rs. 3,500/-. Rs. 600/- out of this were paid on the 28th of October as earnest money under a receipt Exh. P. E. and Rs. 2900/- were paid before the Registrar on the 30th of October 1939. The payment of money is shown in the endorsement Exh. P. A/1 and is to the following effect:

Mangat Ral and Ishwar Chand * * * the vendors have heard and understood the contents of the document and have admitted the execution of the same. Manohar Lai son of Kanshi Ram, caste Mahajan, after counting the currency notes has paid Rs. 2,900/- in currency notes to the vendors. * * *

On the 12th of August, 1945, Arjan Das, 3 son or Mangat Raj and a brother of the accused, brought a suit to set aside the sale on the ground 'inter alia' that it was without consideration and without necessity. One of the issues in this suit was whether the sale was for consideration. The suit was: dismissed by the Subordinate Judge and was on: appeal decreed by the Senior Subordinate Judge, but in the High Court at Lahore this judgment was reversed and the suit was finally dismissed. The Subordinate Judge, Mr. Kirpa Ram, ordered the prosecution of Ishwar Chand for perjury. He was tried by Mr, Chabbar, sub-Divisional Magistrate and was convicted and on appeal the conviction was upheld by the Sessions Judge of Karnal.

3. Counsel for the petitioner has taken me through the record and has submitted that no case of perjury has been proved against the accused. In the first place he has contended and in my opinion rightly that the evidence of the Sub Registrar which was given as D. W. 1 in the previous civil suit is not admissible under Section 33 of tlw-Indian Evidence Act. He has then contended

that no conviction for an offence of perjury should be upheld unless there is proof of facts which, if accepted as true, shew not merely that it is incredible, but that it is impossible that the statements of the party accused made on oath can be true. If the inference from the facts proved falls short of this, it seems * * * that there is nothing on which a conviction can stand; because assuming all that is proved to be true, it is still possible that no crime was committed.

and he has relied on this passage at p. 481 of Ratan-lal's Law of Crimes.

4. In the present case there are certain circum-stances which have to be taken notice of which in my opinion go to prove the offence of the accused. In the first place the accused made the statement which is attributed, to him as a witness in a case which had been brought to set aside the sale to which the accused himself was a party and one of the ingredients to set aside the sale was-want of consideration, and if the suit ad succeeded not only would Arjan Das, his brother, Have benefited by it, but the accused would also have, benefited.

5. The payment in that case is proved firstly by the endorsement Exh. p A/1 which I have-mentioned above. That endorsement is 'admissible for the purpose of proving that the document has been duly registered in manner provided by this Act', and 'the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned; vide Section 60(2) of the Indian Registration Act. Section 59 makes a reference to Sections 52 and 58. According to Section 58 an endorsement by the Sub-Registrar has to be made giving the following particulars:

(a) the signature and addition of every person admitting the execution of the document, * *.

(b) * * *

(c) any payment of money * * * made In the-presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration in whole or in part, made in his presence in reference to such execution.

The payment in the endorsement is admitted by Mangat Rai and Ishwar Chand under their tnumb-impressions and is marked Exh. P. A/2. This by itself should have been sufficient to prove the receipt of payment by the vendors. The payment is further proved by the testimony of two wirnesses P. W. 3 Amar Nath and P. W. 4 Manohar Lal, both of whom have said that the money was paid and that the endorsement was read out by the Registrar and was understood by the accused. In my opinion therefore there cannot be any possibility of doubt as to the payment of money as given in the endorsement.

6. It was next submitted that the endorsement was never brought to the notice of the accused while he was giving the statement in the civil case and that under Section 145 of the Indian Evidence Act it is imperative that a witness should be confronted with his previous statement. To this extent the submission is correct that under Section 145 it is necessary that a witness should be confronted if his evidence is to be attacked by a previous statement, but there is nothing to show that such a thing is necessary under Section 193, Penal Code. Under this section it is the duty of the prosecution to prove that he intentionally was giving false evidence in a judicial proceeding. The fact that it was one of the acts done by the accused himself which was being challenged and also the fact that he stood to gain if the challenge was successful are a sufficient circumstance in my opinion to show that the accused knew what he whs out to prove and that the statement that he made must have been made deliberately. In his statement the accused said that there was no mention of the receipt of the money in the 'bahis.' Thus far the statement was absolutely correct, but when he went further and said 'choonkeh yeh rupia liya hee nahin giya tha' (because this money was never taken)' it was in my opinion an absolutely false statement. Although he may not have been confronted with the endorsement itself It was quite clear to him what he was out to prove. Not only this the accused has stuck to his previous statement even in his statement before the Magistrate. He has repeated that the money was never received and that the statement that he made there was absolutely true.

7. The fourth point that counsel for the petitioner has taken is that the statement that he made that the money was not received was true. I have already dealt with this question and it is significant to note that in the cross-examination of the witnesses for the prosecution or in his statement he never made a suggestion that the money was received and was subsequently returned. It was only when Bhagat Ram D. W. 2 was examined that this defence was mentioned. In my opinion this is a wholly false defence and should be rejected. 1 am therefore of the opinion that the case of perjury has been proved against the accused.

8. The question is one of sentence. The accused is already on bail and I am not prepared to send him back to jail. I would therefore reduce the sentence to the period already undergone, but 'the sentence of fine will remain. The petition is allowed to this extent.


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