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In Re: Doni Hampana Gowd and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1936)70MLJ109
AppellantIn Re: Doni Hampana Gowd and anr.
Cases ReferredBangaru Asari v. Emperor I.L.R.
Excerpt:
- - 64 it is impossible for an appellate court in circumstances like these to alter a conviction into a conviction for an abetment. 61 is that no court can take cognisance of an offence of adultery unless the husband of the woman concerned definitely complained of adultery. the court has complained of facts which constitute an offence under section 471 and all that it has omitted to do is to refer specifically to the number of that section. therefore it seems to me that the court has made up its mind that the facts of which it complained, require investigation and there is nothing to prevent the learned sessions judge from holding that on those facts an offence under section 471 has been made out......by the appellants and that at most all of which they have been guilty must be the abetment of that offence. the learned sessions judge in paragraph 14 of his judgment seems to think, although he makes no specific reference to any such argument, that the appellants are guilty either of forging these receipts or of abetting that forgery. it seems to me on the evidence that there is no satisfactory proof that this forgery, which consists in the alteration of the english dates, could have been committed by the appellants themselves and that the offence which they have committed must have been an abetment of the forgery. as has been laid down in padmanabha v. emperor i.l.r.(1909) 33 mad. 264 : 20 m.l.j. 64 it is impossible for an appellate court in circumstances like these to alter a.....
Judgment:

King, J.

1. The appellants in this case have been found guilty by the learned Sessions Judge of Anantapur under Sections 193 and 471, Indian Penal Code. They were prosecuted upon a complaint laid by the learned District Judge of Bellary, in which specific reference is made only to Section 193.

2. The facts are that the two appellants were being sued on a promissory note. They went to their vakil for the purpose of preparing a written statement and took to him a bundle of receipts. The Vakil accordingly prepared a written statement, in which a plea of part discharge was put forward and produced this written statement in Court along with the three receipts, Exs. C, D and E. Subsequently, however, the appellants remained ex parte and the suit against them was decreed upon the evidence of the plaintiff. It appears that the plaintiff was confronted by the Court with these receipts and asked to explain them. After some hesitation he contended that they were forged and subsequently the learned District Judge, as already stated, filed a complaint against the appellants in respect of these receipts.

3. On the facts there is no serious contest. It is admitted that these receipts were actually handed over by the appellants to their Vakil and it is admitted that the receipts are forged. Legal arguments have, however, been put forward. The first is that the evidence does not establish that any substantive offence under Section 193 has been committed by the appellants and that at most all of which they have been guilty must be the abetment of that offence. The learned Sessions Judge in paragraph 14 of his judgment seems to think, although he makes no specific reference to any such argument, that the appellants are guilty either of forging these receipts or of abetting that forgery. It seems to me on the evidence that there is no satisfactory proof that this forgery, which consists in the alteration of the English dates, could have been committed by the appellants themselves and that the offence which they have committed must have been an abetment of the forgery. As has been laid down in Padmanabha v. Emperor I.L.R.(1909) 33 Mad. 264 : 20 M.L.J. 64 it is impossible for an appellate Court in circumstances like these to alter a conviction into a conviction for an abetment. I must therefore find the appellants not guilty of an offence under Section 193 and acquit them on that charge.

4. With reference to the offence under Section 471, it is argued that as the learned District Judge filed a complaint under Section 193, only, the learned Sessions judge was incompetent to find the appellants guilty under Section 471. This argument is based upon the ruling of this High Court reported in Bangaru Asari v. Emperor I.L.R.(1903) 27 Mad. 61 where it was held that when a husband filed a complaint against a man in respect of his wife and did not specifically accuse that man of having committed adultery with her, no Court could take cognisance of the offence of adultery and a conviction on the evidence for that offence must be set aside. This ruling was cited before my learned brother Burn, J., recently in a case reported in Kunhammad v. Emperor (1933) M.W.N. 1261. My learned brother held that it did not apply to the case before him. The case before him was almost exactly identical with the case before me now and I respectfully agree with my learned brother that Bangaru Asari v. Emperor I.L.R.(1903) 27 Mad. 61, cannot be applied. The point in Bangaru Asari v. Emperor I.L.R.(1903) 27 Mad. 61 is that no Court can take cognisance of an offence of adultery unless the husband of the woman concerned definitely complained of adultery. In the present case no Court can take cognisance of this offence except upon the complaint of a Court; the Court has complained of facts which constitute an offence under Section 471 and all that it has omitted to do is to refer specifically to the number of that section. Therefore it seems to me that the Court has made up its mind that the facts of which it complained, require investigation and there is nothing to prevent the learned Sessions Judge from holding that on those facts an offence under Section 471 has been made out.

5. It is next argued that what the appellants have done does not amount to the using of those forged receipts as genuine. That argument seems to me quite unsustainable. It is impossible in my opinion to maintain that when a client gives receipts to his Vakil and asks him to produce them in Court in support of his defence to a civil suit, he is not using those receipts as genuine. I therefore think that the conviction under Section 471 must be upheld.

6. Then remains the question of sentence. The sentence for the offence under Section 471 is three years rigorous imprisonment. It seems to me that this sentence is out of all proportion to the real seriousness of the offence which the appellants have committed. It is true that they are technically guilty of an offence under Section 471; they have used as genuine documents which they knew must have been forged, but it seems to me, as has already been mentioned, that they did not proceed to make any effective use of those documents. Although they were actually produced into Court, as I have already stated the defendants (appellants) remained ex parte in circumstances in which they must have known that the suit would be decreed against them. Although, technically they are guilty of abetment of forgery and using as genuine forged documents, the appellants have really done nothing which has seriously inconvenienced their opponent or seriously interfered with the administration of justice by a Civil Court. They have been in jail for about one month and they have had to incur heavy expenditure in defending themselves in the Sessions Court and in prosecuting the appeal. I think that experience and that expenditure will afford a salutory lesson to them not to indulge in similar practices in future, and that the ends of justice will be met by reducing the sentence to the period already undergone. I order accordingly.


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