1. The petitioners have 'been convicted of an offence under Section 193, Penal Code, upon the allegation that they fabricated a document purporting to be a kabuliat executed by them in favour of the complainant. The ground upon which this rule was issued is thus expressed : For that the prosecution case being that the kabuliat was not accepted by the landlords and Was not acted upon, Section 193, Penal Code, is not attracted. The argument by which Mr. Mukherjee who appears in support of this rule has endeavoured to substantiate this ground falls into the following three branches. He contends in the first place that the kabuliat was inadmissible in evidence. Secondly, that it could not be said that it was the intention of the petitioners to use it in a judicial proceeding. Thirdly, that in any event, this document does not satisfy the definition of fabrication of false evidence contained in Section 192, Penal Code. With regard to the first branch of his argument we are of opinion that it is now well settled that the mere fact that a document would be ultimately inadmissible in evidence does not necessarily take it out of the mischief of Section 193, Penal Code. If authority were needed, it is to be found in Baroda Kanta Sarkar v. Emperor (1916) 3 A.I.R. Cal. 553 in which it was held that under Section 192, Penal Code, it is the intention that creates the criminal offence and not the fact as to whether under the terms of the law the document is admissible in evidence. In that case the correctness of earlier decisions in which it was considered that a document not admissible under the Evidence Act could not come within Section 192, Penal Code, was doubted.
2. With regard to the second branch of the argument we find from an examination of the document itself that it contains a recital to the effect that the landlord (the complainant) had agreed to accept this document and to grant a lease of the lands to which it related to the petitioners. This being so, the question whether it was the intention of the petitioners to use the document in a judicial proceeding becomes a question of inference. The Courts below have upon a consideration of the facts drawn the inference that that was the petitioners' intention and it is an inference with which we must, upon the circumstances established, entirely agree. In Ahmedali v. Emperor reported in (1926) 13 A.I.R. Cal. 224 decided on 8th July 1925 by Suhrawardy and Panton, JJ., it was held that where in a case in which the facts were exactly similar the learned Judge had left it to the jury to draw an inference as to whether it was the intention of the appellants to use a kabuliat in judicial proceedings the direction of the learned Judge was entirely correct. With regard to the third branch of Mr. Mukherjee's argument it would be sufficient to say that the document with which we are concerned in the present case does satisfy the definition of fabricating false evidence contained in Section 192, Penal Code, because it might certainly lead the Court (before which it was produced to come to the conclusion that the document was genuine and that it had the effect of creating a lease of lands in the petitioners' favour. The rule, accordingly, fails and must be discharged.
3. I agree.