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Kashi Nath Naek Vs. Queen-empress - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal207
AppellantKashi Nath Naek
RespondentQueen-empress
Cases ReferredEmpress v. Ramasami
Excerpt:
forgery - abetment of forgery by writing out the deed--unregistered document purporting to be a valuable security--penal code (act xlv of 1860), sections 109, 114, and 467. - .....by the sessions judge of midnapore of offences under sections 467 and 467/114 of the indian penal code, and section 82, clause (d) of the registration act. the document which is said to have been forged is a kobala, bearing date the 16th march 1896, purporting to have been executed by one khetter nath das in favour of a certain lady, the wife of one kashi nath das. the deed was presented for registration to the sub-registrar; bat he, suspecting something wrong, refused registration. it is said, however, that the appellant before us made certain representations before the said registrar in regard to the person who presented the document for registration, and asked that officer to register the document, saying that it was all right. a prosecution was afterwards started against kashi.....
Judgment:

Ghose and Wilkins, JJ.

1. The appellant before us, Kashi Nath Naek, has been convicted by the Sessions Judge of Midnapore of offences under Sections 467 and 467/114 of the Indian Penal Code, and Section 82, Clause (d) of the Registration Act. The document which is said to have been forged is a Kobala, bearing date the 16th March 1896, purporting to have been executed by one Khetter Nath Das in favour of a certain lady, the wife of one Kashi Nath Das. The deed was presented for registration to the Sub-Registrar; bat he, suspecting something wrong, refused registration. It is said, however, that the appellant before us made certain representations before the said Registrar in regard to the person who presented the document for registration, and asked that officer to register the document, saying that it was all right. A prosecution was afterwards started against Kashi Nath Das and the appellant, Kashi Nath Naek; and it would appear from the record that Kashi Nath Das, the person who really had an interest under the document in question, was convicted by the Magistrate under Section 82 of the Registration Act. As regards the appellant, Kashi Nath Naek, after certain proceedings had been taken against him by the Magisterial authorities, he was committed to take his trial before the Sessions Court for offences to which we have already made reference, and he was convicted accordingly. It seems to be perfectly clear upon the evidence in the case that the alleged executant of the document, Khetter Nath Das, was dead before the date of the document in question; and there can also be no doubt that the appellant, Kashi Nath Naek, was not only the writer of it, but was also the person who took an active part in the preparation of the document; but the evidence is wanting to shew that he took any part in the forgery of the name of Khetter Nath Das, the alleged executant of the document; and we are of opinion that it is almost impossible to convict the appellant before us, upon the materials upon the record, of the offence of forgery. It appears to us, however, at the same time that whoever the forger of the document might have been, Kashi Nath Naek abetted the act of forgery; and in that view of the matter we think that he ought to be convicted under Section 467/109 of the Indian Penal Code, namely, that he abetted the offence of forgery of the document. As we have already observed, there is nothing to indicate that the appellant was a party to, or took any part in, the actual forgery of the document; nor does it appear that be was present upon the occasion when the document was forged. We, therefore, think that Section 114 of the Indian Penal Code has no application to the present case; and that the proper section to convict him under would be Section 467/109 of the Indian Penal Code.

2. As regards the offence said to have been committed by the accused under Section 82, Clause (d), of the Registration Act, the evidence, to our mind, is doubtful. The Sub-Registrar, who is a respectable and responsible officer of Government, distinctly swears that the appellant did not take that part at the time the document was presented for registration which has been attributed to him; and in the conflict of testimony which exists in this case, we think it would be unsafe to convict him under clause (d), Section 82 of the Registration Act. We, therefore, set aside the conviction under the Registration Act, and convict him under Section 467/109 of the Indian Penal Code only.

3. In the circumstances, we think that the justice of the case will be amply met, having regard to the terms of the Section of the Penal Code under which we convict him, by sentencing the appellant to two years' rigorous imprisonment.

4. We might add that a point was raised before us by the learned Vakil for the appellant to the effect that Section 467 of the Indian Penal Code had no application to the present case; because the document, which was a kobala, was not actually registered, and, therefore, it could not possibly operate as a valuable security within the meaning of that section. We are, however, unable to accept this contention as correct; because the section in question runs thus: 'Whoever forges a document which purports to be a valuable security or a will,' and so on. The words are 'which purports to be 'and not' which is' a valuable Security. The document may not be an effectual document so as to pass title until it is registered; but so soon as it is registered it takes effect from the date of execution thereof; and although it may not be a valuable security until the registration is completed, still it 'purports' to be valuable security within the meaning of the Section. We find that the Madras High Court in the case of Queen-Empress v. Ramasami, (1888) I.L.R. 12 Mad. 148, referring to the case in 2 East's Pleas, p. 955, took very nearly the same view which we have just expressed; and although the facts of the case were somewhat different from those of the present case, still the principle which is laid down therein equally applies to this case.


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