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Mohammed Kajim Ali Vs. Jarabdi Nashkar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal430,52Ind.Cas.62
AppellantMohammed Kajim Ali
RespondentJarabdi Nashkar and ors.
Cases ReferredBaroda Kanta Sarkar v. Emperor
Excerpt:
penal code (act xlv of 1860), sections 193, 423 - kabuliyat, whether document, within meaning of section 423--revision against acquittal--question of law not free front difficulty--high court, interference by. - .....that the reference in the document to other maliks was made in support of some false claim.3. the learned sessions judge held in effort 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, nor under section 423 because a kabuliyat was not a document ''which purports to transfer or subject 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.....
Judgment:

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 kabuliyat in respect of certain land, which contained recitals designedly false. The document stated that the petitioner and his full brother and the other maliks of the land had demanded a kabuliyat from the opposite parties and that the kabuliyat had been executed in compliance with that demand. The petitioner denied that he or his full brothers had ever demanded or accepted the kabuliyat, and he further 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 effort 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, nor under Section 423 because a kabuliyat was not a document ''which purports to transfer or subject 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 kabuliyat when accepted operates as a lease [Rai Moni Dasi v. Mathura Mohan Roy 14 Ind. Cas. 540 : 39 C. 1016 : 16 C.W.N. 606 : 15 C.L.J. 665], but it is doubtful whether the language of Section 423 could be so interpreted as to include a kabuliyat within its scope.

5. A 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, and in support of the construction of that section which the' learned Sessions Judge has adopted he has cited the oases of Empress v. Gauri Shankar 6 A. 42 : A.W.N. (1883) 189 : 3 Ind. Dec. (n.s.) 597 and Emperor v. Chandra Kumar Missir 2 C.L.J. 46 : 2 Cr. L.J. 383. Some doubt has been thrown on the correctness of those decisions in Criminal Revision No. 1989 of 1914 decided on the 2nd May 1915, Baroda Kanta Sarkar v. Emperor 30 Ind. Cas. 444 : 16 Cr. L.J. 620. But apart from that the learned Sessions Judge has overlooked the fact that according to the opposite parties the kabuliyat was accepted by the complainant and his full brothers. On that footing the recitals in the kabuliyat 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 kabuliyat would be admissible in evidence under the terms of Section 13 of the Evidence Act.

6. We need not, however, express a final opinion on any of the points argued before us. The decision of a Criminal Court on the truth or otherwise of the statements contained in the kabuliyat 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 there is not a case in which we ought to interfere in the exercise of the revisional jurisdiction.


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