Guha Ray, J.
1. This is a petition under Section 215 of the Criminal P. C. for quashing the commitment of the petitioner Nandaram Agarwalla who was committed to this Court for trial on charges under Sections 120B/379 and 466 and 465 of the I. P. G.
2. The prosecution arose out of the alleged removal of two returns filed on behalf of the assessee Sriram Jhabarmull for the assessment years 1945-46 and 1946-47 on the 9-12-1946 and the 30-12-1946 and their substitution by two other returns in between the 27-2-1952 and the 29-2-1952 by return Exts. 3 and 4 bearing the dates 9-12-1946 and 30-12-1946, respectively, but written on forms printed as appears from the forms themselves, on the 4-5-1949. The case for the prosecution is that the files in which these returns were kept were in the custody of the Income-tax Officer Sri Nani Gopal Das Gupta, P. W. 2, who used to keep these files in a steel almirah in his room under lock and key, the key being kept by bim. It is his evidence that at the time he took over charge from his predecessor. Sri S. N. Roy, he was directed by Mr. Roy to take particular care of the file of Sriram Jhabarmull and-also to see that the file was kept with him and never to send it to the office. In accordance with these instructions he took particular care of these files. On the 27-2-1952, three different parts of the file relating to this asses-see Sriram Jhabarmull had to be sent to the Appellate Assistant Commissioner in connection with the hearing of an appeal. The returns in question are said to have been in these files. On the 27-2-1952, the Income-tax Officer had a conference with the Commissioner of Income-tax and the Inspector of Assessment for discussing ways and means of recovery of income tax assessment from Nandaram Agarwalla, the present petitioner', who according to him, had evaded income tax for a number of years and a further conference was to be held on the 29th. The Commissioner of Income-tax had instructed Sri. Nani Gopal Das Gupta to call for the file from the Appellate Assistant Commissioner. The Income-tax Officer sent one. Ebnd Ali Mondial, P. W. 9, an assistant in the Income-tax Department, to fetch the files. When these files were brought to Sri Das Gupta on the 29th by Ebad Ali Mondal, he began to go through their contents in order to prepare himself for the con-ference. In the course of his scrutiny of these papers. Sri Das Gupta discovered two returns Exts. 3 and 4 which according to him had been freshly prepared, and the ink on the same had not yet completely dried up. He also discovered that the retums wera submitted on forms printed on the 4-5-1949 although, the dates they bore were the 9-12-1946 and the 30-12-1946, respectively. He made a report Ex. 2 to the Commissioner of Income-tax on the-4-3-1952 The Commissioner of Income-tax then sent this report of Sri Das Gupta with a complaint of his owrt to the police.
3. The prosecution case, as far as one can. Judge from the complaint of the Commissioner of Income-tax is simply this. That the original returns for 1940-41 assessment year had been filed in respect of the joint family consisting of Nandaram Agarwalla and his sons and in those for 1945-46 and 1946-47 the status of the assessee was shown to be a firm whereas the forged returns show that .Nandaram Agarwalla is the sole proprietor of the firm and the object is to prevent execution proceedings against Kashiram Agarwalla, the son of Nandaram Agar- walla and his properties. To prove these facts thqr prosecution examined the Commissioner of Income-tax, P. W. 1, the Income-tax Officer, Sri Nani Gopai Das Gupta, P. W. 2, Sri S. N. Roy, P. W. 3, who was. succeeded by Sri Nani Gopal Das Gupta as Income-tax Officer, and a number of other witnesses including Ebad Ali Mondal, the clerk who had brought back the file from the office of the Appellate Assistant Commissioner to Sri Nani Gopal Das Gupta.
4. Under Section 215 Cr. P. C., it is only on a ground of law that this Court is entitled to quash a commitment legally made. Mr. Dutt on behalf of the petitioner argues that as far as the charge under section 120B/, 379 I. P. C. is concerned there is no evidence whatever to connect the petitioner with the alleged removal of the two returns and as regards the other charges his contentions are, first, that the evidence of the hand-writing expert which cannot be treated as conclusive evidence of the identity of signatures purporting to be those of Nandaram Agarwalla on Exts 3 and 4 with the specimen writings of Nanda-ram Agarwalla taken by the police and sent to him for examination is merely an opinion which cannot establish the fact of the identity of the two writings and so it should be treated as no evidence at all of the fact of this identity and secondly that the evidence of the Income-tax Officer Sri Nani Gopal Das Gupta that the signatures purporting to be those off Nandaram Agarwalla on Exts. 3 and 4 are really those of Nandaram Agarwalla whose signature he knows is also no evidence because he nowhere says that he saw him writing or that he used to receive documents bearing signatures of Nandaram Agarwalla as contemplated by Section 47 of the Indian Evidence Act. Thirdly, he argues that so far as these charges are concerned, the prosecution not having adduced any evidence to show what the contents of the original returns were is not in a position to say that a prima facie case has been made out under section 465 or 466 I. P. C. because there is no element of fraud in the absence of any evidence to show that there was a substantial difference between the two sets-of returns, i. e., the returns as originally filed and the returns Exts. 3 and 4, a difference which might go-to show that the petitioner stood to gain by the removal of the original returns and by their substitu-tion with Exts. 3 and 4. Fourthly, he has argued that there is ho evidence to show that the dates appearing on Exts. 3 and 4, viz., 9-12-1946 and 30-12-1946, are in the handwriting of Nandaram Agar-walla or that the dates were there when Nandaram Agarwalla put his signatures, if in fact he had put his signatures there.
5. It appears from the order sheets Exts. 7 and 8 that on the 9-12-1946 and 30-12-1946, returns were actually filed on behalf of Srirarn Jhabarmull. The returns Exts. 3 and 4 cannot obviously be those returns because they are written on forms which were printed on the 4-5-1949 so that these forms could not possibly have been in existence on the 9th and 30-12-1946 when the original returns, as shown by Exts. 7 and 8, appear to have been filed. That being so, the evidence makes out a perfectly clear case that the original returns have been substituted by Exts. 3 and 4. So far there is no difficulty. But the question arises whether the prosecution has adduced any evidence to make out a prima facie case against the petitioner on the charges under section 120B/379 I. P. C. and charges Under section 465 and 466 I. P. C. That the petitioner had anything to do with the removal is not the evidence of any of the witnesses. There is thus a complete lack of direct evidence to connect him with the removal. If there were some circumstances from which an inference could reasonably be drawn that the petitioner stood to gain by the removal of the old 'returns and their substitution by the new ones, viz.. Exts. 3 and 4, one might reasonably connect the petitioner with the removal, but in the absence of any evidence to show what the contents of the original documents were it is not possible for any one to say first, whether Exts. 3 and 4 substantially differ from the original returns actually filed on the 9th and 30-12-1946. Secondly, whether from this difference an inference follow the the petitioner stood to gain by the substitution.
6. That appears to me to be the pivot of the whole case and yet that is exactly where the evidence in the prosecution amounts to nil. In the report of Sri Nani Gopal Das Gupta which he submitted to the Income-tax Commissioner and which the Income-tax Commissioner sent to the police it is clearly stated that copies of all these returns were in the office and that by comparison with them the mischief done could easily be ascertained. Curiously enough, Sri Das Gupta is completely silent in his evidence about these copies. No question appears to have been put to him by the prosecution about these nor were any copies filed in Court. If these copies really existed they could have been filed to prove the contents of the original returns. The report of Sri Das Gupta does not seem to make it quite clear whether before submitting his report to the Income-tax Commissioner 4 days after he had discovered the fraud he had actually satisfied himself that these copies were really there in the office and that these copies showed whether the substituted documents differed from the originals. The only item of evidence therefore, which according to Sri Das Gupta could have thrown some light on the nature of the contents of the original documents is not forthcoming and the presumption must go against the prosecution. Whether that presumntion goes against the prosecution or not, the fact remains that there is a complete absence of evidence to show what the contents of the original documents were and in view of that absence of, evidence it is not possible to find out whether in fact there was really any substantial difference between the contents of the original documents and the substituted documents or not. It, as a matter of tact, there was no difference between the two sets of returns, the mere using of two anteuateu returns would not lead to an inference of fraud because it is just possible, although Sri Das Gupta at one place says that the order sheet does not show any order calling upon the assessee to file duplicates of returns, that duplicates in fact were filed for some reason or other which is not apparent on the face of the record. Unless there is an element of fraud, the making of a false document, if the signing of Exts. 3 and 4 by Nandaram Agarwalla amounts to the making of false documents, would not amount to a forgery because one of the intents contemplated by Section 463 I. P. G. is that the false documents must be made with intent to commit fraud or that fraud may be committed. Consequently, even if Nandaram Agarwalla by signing the documents in question made false documents this making of false documents would not amount to forgery, there being no intent to commit fraud and it being nobody's case that any of the other elements contemplated by Section 463 I. P. C, was present in this case.
7. As regards the making of false documents the admitted case of the prosecution is that the falsity of the two documents lies only in the dates which they bear, because these documents were drawn up on forms which admittedly were printed on 4-5-1949. That being so, it is clear that the documents in question are ante-dated but there is no evidence even to suggest that these dates are in the hand-writing of Nandaram Agarwalla or that these dates were there when he put his signatures on these documents. The evidence, therefore, as it stands, does not make out any case that Nandaram Agarwalla dishonestly or fraudulently executed the documents with the intention of causing it to be believed that such documents were signed by him at a time at which he knew that they were not signed by him. That being so, it cannot be said on the evidence on the record that Nandaram Agarwalla was responsible for the making of false documents either.
8. As regards, the charge of conspiracy, there is no evidence either direct or indirect. There was another accused person Hiralal Agarwalla whom the Magistrate was obliged to discharge on the ground that there was no evidence against him. It appears that a police officer who said he took the specimen writings of Hiralal Agarwalla had to admit that the person who passed as Hiralal Agarwalla in the dark was not the person whose specimen writing he took. It is an extraordinary admission he had to make and the learned Magistrate had hardly any option but to discharge the accused person thereafter. On the discharge of that other accused person, the prosecution case of conspiracy receives a severe jolt. 'Of course, it is argued, that the petitioner conspired with other unknown persons. There is nothing, however, on the record to indicate that such was the case. Of course, as I have stated before, if the prosecution were able to show that there was a substantial difference between the contents of the original returns and those of the substituted returns and that the petitioners stood to gain by the substitution the Court might conceivably have drawn an inferencethat the petitioner was concerned fa the removal of the documents and their substitution and that might justify a charge of conspiracy, but, as already stated there is no such evidenced That being so, it has got to be held that the evidence on the record is not sufficient in law to justify charges under section 120B/379 I. P. C. and under section 465 and 466 I. P. C. being framed-against the petitioner.
9. Mr. Dutt in addition argued another point viz., that the Magistrate did not exercise his judicial discretion in refusing to examine certain witnesses of which a list was filed, on behalf of the defence under section 211 of the Code of Cr. * P. C. The learned Magistrate refused' to examine these witnesses under section 212 because in his opinion the case depended on circumstantial evidence. Although the reasons of the learned Magistrate may not be quite sound, it does not necessarily mean that the learned Magistrate, exercised his discretion arbitrarily or improperly in the matter. He had undoubtedly a discretion whether to examine such witnesses or not.
10. This ground therefore of Mr. Dutt must fail but on the other grounds the petition succeeds and the result is that the commitment of the petitioner on the charges mentioned already must be quashed.
11. The Rule is accordingly made absolute.