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Ali Ahmad Vs. Emperor - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1932Cal545,140Ind.Cas.544
AppellantAli Ahmad
Cases ReferredEmperor v. Jabbar Ali
- .....the appellants before one munsif and the suit was subsequently tried by another munsif. the first munsif made a complaint under section 476, criminal p. c, and the appellants were convicted under section 471, i. p. c. they had preferred no appeal under section 476 b and in appeal against their convictions they sought to maintain that the complaint was defective as having been made by the wrong munsif. on this part of the case rankin, c. j., observed:first of all, it is said that there is an appeal against every order made under section 476 which results in a complaint; it is open to the person complained against not to exercise his right of appeal at all and to argue before a magistrate or a sessions judge whether the complaint is a good complaint or made by a proper officer or so.....

Panckridge, J.

1. The appellant has boon found guilty by the unanimous verdict of the jury of an offence punishable under Sections 471/467, I. P. C., and sentenced to rigorous imprisonment for a term of two years and also to pay a fine of Rs. 500 with a further term of six months' rigorous imprisonment in default.

2. The appellant is a Mahomedan Marriage Registrar and on 16th April 1928 he filed a rent suit in the Court of the Hatiya Munsif against one Mafijur Rahman. The plaint in the suit was in the hand-wring of Makbul Ahmad, the appellant's karmachari and tadbirkar. On 23rd July 1928 a ferishti, also in the handwriting of Makbul, was filed and with it a document purporting to be signed by Matijur Rahman and to be the kabuliyat upon which the appellant based his claim. On 28th August 1928 Mafijur filed his written statement in which he stated the kabuliyat to be a forgery and asked for its safe custody, and a further application to impound the document was made by him on 20th December 1928. On 11th March 1929 the rent suit was transferred from the file of the Hatiya Munsif to the file of the Sadar Munsif. On 14th May 1929 the appellant applied for and obtained inspection of the document, and on the following day he filed a petition in which he repudiated the document as being forged and stated that he had had nothing to do with its being filed.

3. On 31st May 1929 the appellant's suit was dismissed. The Sadar Munsif thereupon proceeded to take action under Section 476, Criminal P. C., and made a complaint to the effect that the appellant had committed offences under Sections 193 and 467/471, I. P. C. The appellant appealed to the District Judge under the provisions of Section 476-B, Criminal P. C. On 23rd December 1929 the District Judge disposed of the appeal by withdrawing the complaint under Section 193, Criminal P. C, but dismissing the appeal in other respects. The appellant proceeded to move this Court in its civil revisional jurisdiction and obtained a Rule against the order of the District Judge dismissing his appeal under Section 476-B, Criminal P. C. This rule was discharged by C. C. Ghose and Patterson, JJ., on 28th May 1930. The appellant was, on 29th June 1931 committed to the Court of Session on charges framed under Sections 467/109 and 467/471, I. P. C.

4. The learned Judge directed the jury to acquit the accused on the charge under Sections 467/109 holding that Section 195, Criminal P. C., was a bar to conviction on that charge, as the complaint of the Munsif was not of the offence of abetment of forgery. With respect to the charge under Section 467/471 the jury returned a unanimous verdict of guilty. Several points have bean urged on the appellant's behalf by his learned advocate.

5. First it is said that the accused, having been found not guilty on the charge under Section 467/109, cannot be convicted on the charge under Section 467/471. This argument was not pressed and there is nothing in it. The offence of abetment of forgery is plainly quite different from the offence of using as genuine a forged document. There is nothing either in law or in fact to prevent a man being innocent of the first offence and guilty of the second. Even if one offence did involve the other we do not think that an accused person could claim to be acquitted of both offences because the provisions of Section 195, Criminal P. C., constituted a bar to his trial and conviction for one of them.

6. Next it is said that what has been proved by the prosecution does not amount to user within the meaning of Section 471, I. P. C. Reliance has been placed on Ambiha Prosad Singh v. Emperor [1908] 35 Cal. 820 the head-note of which is to the effect that the mere filing of a document in Court without tendering the same in evidence does not constitute user of it within Section 471, I. P. C It will be noticed that that appeal was against a conviction by a Sessions Judge who tried the case with the aid of assessors. The Court expressed grave doubts whether it had been proved that the appellant had anything to do with filing the forged documents and further was by no means completely convinced that the documents were in fact forgeries.

7. That the judgment in that case does not support the proposition enunciated in the head-note was recognized in Mobarach All v. Emperor [1913] 13 Cr.L.J. 449 by Holmwood, J., one of the learned Judges who was a party to the earlier decision.

8. In Mobarach Ali's case [1913] 13 Cr.L.J. 449 Holmwood, J., observed:

The filing of a document as the basis of a plaint or as a necessary sequel to the pleas in a plaint is in our opinion a user.

9. In Emperor v. Bansi Sheikh A.I.R. 1924 Cal. 718 New bould and B. B. Ghose, JJ., referring to Mobarack Ali's v. Emperor [1913] 13 Cr.L.J. 449 gave it as their opinion that if a person puts forward a document as supporting his claim in any matter, whether that document is acted upon by the Court or used in evidence is immaterial for the purpose of constituting user of the document by the party within the meaning of Section 471, I. P. C.

10. We would only add that in our opinion it is user whether the party files the document personally or, as more usually happens, through a legal representative. Further such legal representative will be presumed to have filed the document with the knowledge and authority of his client until the contrary is shown. Another' ground of appeal is that there was no complaint as contemplated by Section 195 (1) (c), Criminal P.C. It is argued that the offence if any was committed in respect of a document produced in a proceeding in the Court of the Munsif of Hatiya where the complaint was made by the Sadar Munsif who disposed of the suit. It is pointed out that the charge describes the offence as having been committed at Hatiya. This point is not altogether easy of solution. The Special Bench case Sheik Bahadur v. Shaikh Eradatulla [1910] 37 Cal. 642 is of little assistance. That case decided that ' Court ' in Section 476, Criminal P. C., bears its natural meaning and includes not only the particular Judge to whose notice offences under Sections 180, 186 and 357 are brought but also his successor-in-office.

11. Tarakeswar Mukhopadhya v. Emperor A.I.R. 1926 Cal. 788 would at first sight appear to be an authority against the appellant's contention. In our opinion the language of the head-note is more general than the judgment warrants. The complaint in that case was of an offence under Section 211, I. P. C., which is dealt with in Section 195 (1) (b), Criminal P. C., which is considerably wider than Section 195 (1) (c), Criminal P.C., which is applicable to an offence under Section 469/471, I. P. C.

12. We think however it is not necessary to decide the point; for we consider that it was the intention of the legislature that the remedy open to a person aggrieved by a complaint made under Section 476, Criminal P. C, should be limited to an appeal under Section 476-B, and that it is not permissible to call the complaint in question in the course of an appeal against conviction.

13. Mahim Chandra v. Emperor : AIR1929Cal172 is in no way opposed to this view. It merely lays down that an order under Section 476-B made by a criminal Court is subject to the criminal revisional jurisdiction of the High Court.

14. Our attention has been directed to an unreported decision of Rankin, C. J., and Buckland, J., Emperor v. Jabbar Ali : AIR1929Cal203 . In that case a document was filed by the appellants before one Munsif and the suit was subsequently tried by another Munsif. The first Munsif made a complaint under Section 476, Criminal P. C, and the appellants were convicted under Section 471, I. P. C. They had preferred no appeal under Section 476 B and in appeal against their convictions they sought to maintain that the complaint was defective as having been made by the wrong Munsif. On this part of the case Rankin, C. J., observed:

First of all, it is said that there is an appeal against every order made under Section 476 which results in a complaint; it is open to the person complained against not to exercise his right of appeal at all and to argue before a Magistrate or a Sessions Judge whether the complaint is a good complaint or made by a proper officer or so forth. In my opinion, this contention cannot be too formally rejected. What the Criminal Procedure Code requires is that certain proceedings shall not be instituted unless there is a complaint; whether there is a complaint or there is no complaint in my judgment is a question which can only be agitated in the manner provided.

15. We desire, with respect, to express an agreement with these observations what appear to us to have even greater weight in a case like the present where not only has there been an appeal under Section 476-B which has been dismissed, but the order of dismissal has been upheld by the High Court in the exercise of its civil revisional jurisdiction.

16. Finally it is urged that there are material misdirections in the charge of the learned Judge. It is said that he directed the jury insufficiently with regard to a letter which it was suggested as written by or on the authority of Makbul at a date prior to that on which ho swore that the forged document was made over to him by the appellant. The letter speaks of the filing of a kabuliyat and shows, it is said, that Makbul had received the genuine kabuliyat from the appellant. It is further contended that Makbul on his own showing was an accomplice and that the jury should have been directed as to the necessity of corroboration.

17. We consider that the jury were properly directed on both points. The learned Judge recapitulated the evidence as to the letter and left the jury to draw conclusions that they saw fit from it. He also reminded them of the submission of the defence as to the complicity of Makbul and suggested the considerations they should bear in mind in weighing his testimony. His story was amply corroborated. There are certainly aspects of the prosecution case which are not easy of explanation, that these would not justify us in setting aside a conviction based upon the unanimous verdict of a jury who had before them an abundance of direct evidence as to which they were adequately and properly directed by the learned Judge. We think however that we are justified having regard to the age and previous good character of the appellant in modifying the sentence passed by the learned Judge, Therefore while dismissing the appeal against conviction we reduce the sentence to one of one year's rigorous imprisonment. The fine if paid will be refunded. The appellant will surrender to his bail and serve out the sentence.

M.C. Ghose, J.

18. I agree.

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