Richardson and Shams-ul-Huda, JJ.
1. The opposite parties in this case were convicted by the Magistrate of offences under Sections 423 and 193 of the Penal Code and sentenced to terms of imprisonment. On appeal they were acquitted by the Sessions Judge. The petitioner, the complainant in the case, then obtained this Rule calling upon them to show cause why the acquittal should not be set aside.
2. The Magistrate found, in accordance with the allegations made by the petitioner, that the opposite parties had executed and registered a document purporting to be a kabuliat in respect of certain land which contained recitals designedly false. The document stated that the petitioner and his fall brothers and the other maliks of the land had demanded a kabuliat from the opposite parties, and that the kabuliat had been executed in compliance with that demand. The petitioner denied that he or his full brothers had ever demanded or accepted the kabuliat, and he farther asserted that he and his brothers were the only maliks of the land and that the reference in the document to other maliks was made in support of some false claim.
3. The learned Sessions Judge held in effect that, assuming the falsity of the statements impugned, no offence had been committed either under Section 423 or under Section 193 of the Penal Code not under Section 423 because a kabuliat was not a document 'which purports to transfer or sabject to any charge any property, or any interest, therein' within the meaning of the section, and not under Section 193 because the statements being made by the opposite parties could not be used by them in their own favour, and would be inadmissible in evidence as against the petitioner and his full brothers.
4. As regards Section 423 we are disposed to concur with the Sessions Judge's view. No doubt it has been held for some purposes that a kabuliat when accepted operates as a lease (Raimoni Dassi v. Mathura Mohan Dey), (1912) I.L.R. 39 Calc. 1016 but it is doubtful whether the language of Section 423 could be so interpreted as to include a kabuliat within its scope.
5. As regards Section 193, however, the view expressed by the Sessions Judge is open to criticism. The meaning of the term 'fabricating false evidence' is defined in Section 192 of the Penal Code. In support of the construction of that which the learned Sessions Judge has adopted, he has cited the cases of Empress v. Gauri Shankar (1883) I.L.R. 6 All. 42 and Emperor v. Chandra Kumar Missir (1905) 2 C.L.J. 46. Some doubt has been thrown on the correctness of those decisions in Baroda Kanta Sarkar v. Emperor (1915) 16 Cr.L.J. 620. But apart from that the learned Sessions Judge has overlooked the fact that, according to the opposite parties, the kabuliat was accepted by the complainant and his full brothers. On that footing the recitals in the kabuliat would be evidence against the complainant and his full brothers. Moreover the learned Sessions Judge has omitted to consider whether circumstances might not arise in which the kabuliat would be admissible in evidence under the terms of Section 13 of the Evidence Act.
6. We need not, however, express a final opinion of any of the points argued before us. The decision of a Criminal Court on the truth or otherwise of the statements contained in the kabuliat would not be binding on the Civil Courts should the question ever be raised in these Courts, and as the questions of law which arise are not in all respects free from difficulty, we have come to the conclusion that this is not a case in which we ought to interfere in the exercise of the Revisional Jurisdiction. The rule is discharged.