1. The petitioner before us was convicted by the Joint Magistrate of Alipore (1) of having abetted the false personation of one Khirod Chunder Mookerjee, son of Prosono Coomar Mookerjee, of Bhowanipore, before the Sub-Registrar of Sealdah; (2) of having intentionally made a failse statement before the said officer in identifying some unknown person as the said Khirod Chunder; and (3) of having abetted the offence of cheating by dishonestly inducing one Huridas Bhuttacharjee to deliver the sum of Rs. 5,000 to the said unknown person under the belief that he was advancing the said sum of money to Khirod Chunder Mookerjee, son of Prosono Coomar Mookerjee, of Bhowanipore. The petitioner was sentenced to one year's rigorous imprisonment and a fine of Rs. 200 in respect of the second of the above mentioned offences, no sentence being passed for the others. On appeal the conviction and the sentence have been upheld by the Sessions Judge of the 24-Pergunnahs. The present application has been made under Section 435 of the Code of Criminal Procedure to set aside the conviction and the sentence on various grounds of law and facts. Under Section 435 we generally decline to go into the questions of fact, though we have the power to do so. We exercise this power only in such cases where we find that in the interests of justice it should be exercised. After fully hearing arguments in this case, we were of opinion that the present is a case in which that power should be exercised. Moreover we find that there are two grave errors of law in the proceedings and the judgment of the lower Court. The first error is that the Joint Magistrate allowed a statement of a deceased person, namely, Roma Nath Laha, the master of Huridas, to go in as evidence, although objected to. This statement was deposed to by Huridas. There is no question that this statement was not relevant. The other error is that the lower Courts have assumed without any evidence that the petitioner as a vakeel had approved the draft of the mortgage bond which was executed by an unknown person calling himself Khirod Chunder Mookerjee, son of Prosono Coomar Mookerjee, of Bhowanipore, in favour of Roma Nath Laha.
2. These two errors of law being established we have to determine how far they affected the merits of the decisions of the lower Courts. We cannot decide this question without considering the weight of the remaining evidence. For these reasons we find it necessary to consider the evidence adduced in this case, in order to judge how far the conclusions of facts arrived at by the lower Courts are correct.
3. The most essential question of fact in this case was, whether in regard to the execution of the mortgage bond in favour of Roma Nath Laha, and in respect of its registration there was false personation of Khirod Chunder Mookerjee son of Prosono Koomar Mookerjee, of Bhowanipore, by an unknown person.
4. Upon this point, after fully considering the evidence, I find no reason to dissent from the view taken by the Courts below.
5. I have no reasonable doubt in my mind that the person who executed the mortgage bond, and who appeared before the Sub-Registrar of Sealdah and registered it was not Khirod Chunder Mookerjee, son of Prosono Coomar Mookerjee of Bhowanipore; I see no ground to disbelieve the evidence of Khirod Chunder Mookerjee, Russickloll Mookerjee, Iswar Chunder Chunder and Bepinbehary Chowdhry upon this point. Their evidence is strengthened by a comparison of the signature of Khirod Chunder Mookerjee, both in English and in Bengali, with the signatures of the so-called Khirod on the mortgage bond, and the note of hand executed in favour of the witness Iswar Chunder. In coming to this conclusion the circumstance, the absence of any tangible evidence showing that about the time of the said mortgage bond the real Khirod was in need of borrowing such a large sum of money as Rs. 5,000, has, to a certain extent, weighed with me. The petitioner being a neighbour of Khirod, if the latter had really borrowed the money he would have been in a position to give some evidence upon the point. Upon the question of false personation, therefore, I think that the lower Courts have come to a correct conclusion.
6. Then comes the question whether Nobin Chunder knowingly participated in any way in abetting the successful carrying out of the fraudulent scheme by which Roma Nath Laha was defrauded of Rs. 5,000. The conclusion to which the lower Courts have come upon this point is unfavourable to the petitioner. The oral evidence upon this point is, in my opinion, very unsatisfactory. The only documentary evidence which has been put in is also, in my opinion, not entitled to much weight. It is a memorandum of an alleged approval of the mortgage bond by Nobin Chunder. Its proof rests merely upon a comparison of handwriting. I do not think that the evidence is strong enough to establish its genuineness. Then, again, supposing that it is genuine, there is no evidence to connect it with the particular transaction in question in this case. Putting aside this document there is only the oral evidence which, as I have already said, is unsatisfactory. Then balancing this oral evidence against certain circumstances, to which I shall presently refer, it seems to me that the reasonable conclusion upon this point is that Nobin Chunder was in no way party to the fraud which was perpetrated upon Roma Nath Laha. It is in evidence that, on the 27th September 1881, when the mortgage bond was executed at the Sealdah Sub-Registrar's Office, Nobin Chunder was not present. Upon the evidence it seems to me that on that day the document in question would have been registered, and the money paid to the executant if the Sub-Registrar had not objected to the identification of Khirod Chunder as unsatisfactory. Then, again, on the next day when Iswar Chunder advanced Rs. 1,000 to the personator of Khirod, Nobin Chunder was admittedly not present. These two circumstances almost conclusively show that the petitioner was not a party to the fraudulent device. He is a vakeel and also a well-to-do person. If he was depraved enough to join in the fraud, it is exceedingly improbable that he should have done so, unless he was assured of a very large share in the spoil, and if he had to receive such a share it is almost impossible to believe that he should not have been present at the Sub-Registrar's Office on the 27th September, and at Roma Nath Laha's Boytuckhana on the following day. Then, again, Nobin Chunder is not shown to have received anything more than eight rupees in the whole transaction. His conduct in telling Huridas, who called at his house in April 1882 to fetch the real Khirod Chunder, is inconsistent with a guilty conscience. These circumstances, in my opinion, decidedly outweigh the oral evidence upon this point, which, as I have already said, is of a meagre and unsatisfactory character upon the question of the complicity of Nobin Chunder in the fraud. I therefore come to a different conclusion from that of the lower Courts.
7. The next question is whether Nobin Chunder, when he identified some unknown person as Khirod Chunder, made a false statement intentionally: upon the evidence upon the record, I cannot but come to the conclusion that he made that false statement intentionally. It seems to me that when he stated to the Sub-Registrar that he knew Khirod as his neighbour, he was perfectly aware that that statement was false. But having regard to his position in life, and to the amount of remuneration he received, I think it is a reasonable conclusion to come to, that placing full reliance on the representations of Bossunto, Nobin Chunder believed that he was identifying Khirod Chunder, the son of Prosono Coomar.
8. Upon the conclusions at which I arrive, Nobin Chunder is only guilty under Clause (a), Section 82, of intentionally making a false statement before the Sub-Registrar of Sealdah, and is not guilty of the other offences charged against him.
9. It will be convenient here to notice a point which was a good deal discussed before us. It was contended that the conviction under Section 82 of the Registration Act cannot be sustained, because the prosecution for the said offence was not commenced with the permission of the Sub-Registrar of Sealdah. But we find that on the 22nd April 1884 the Sub-Registrar of Sealdah gave permission for the prosecution of Nobin Chunder under Section 82 of the Registration Act. It is true that that permission was given when a complaint against Nobin Chunder was pending in the Joint Magistrate's Court, but that complaint had nothing to do with any offence under Section 82 of the Registration Act. The Joint Magistrate in investigating that complaint examined the witnesses for the prosecution in the month of April 1884. On that evidence, on the 23rd May 1884, the Joint Magistrate for the first time framed the charges under Section 82 of the Registration Act against Nobin Chunder. The prosecution for the offence under Clause (a), Section 82, of the Registration Act., was, in my opinion, commenced on the date when the charges were framed. That being so, the objection as to the want of permission falls to the ground.
10. The only question that remains to be considered is that of punishment. Having regard to the facts which, in my opinion, have been established against Nobin Chunder, and to his position of life, I think the interests of justice would be fully met if we pass the sentence of rigorous imprisonment for one month, and a fine of two hundred rupees. The conviction under Clause (a), Section 82, will stand, and the conviction of the other offences mentioned in the charge will be set aside. The sentence will be modified as stated above. If Nobin Chunder has undergone imprisonment under the sentence of the lower Court for any period, he will have to complete the time of imprisonment to which we sentence him.