1. This is an appeal from the judgment and sentence of the learned Sessions Judge of Tipperah, who, in agreement with both the assessors, has found the appellant, Hyder Ali, guilty of forgery under Section 467, Indian Penal Code, and sentenced him to seven years' rigorous imprisonment, and has found the second appellant, Affsaruddin, guilty under Section 467 read with Section 114, Indian Penal Code, and sentenced him to five years' rigorous imprisonment.
2. The document which is said to be forged is a kabuliyat executed by Hyder Ali himself in favour of his landlord, Chand Buksh Sarkar. The original document is not forthcoming but in the copy which has been produced from the Registration Office, the name of Chand Buksh Sarkar of Pachania appears as a witness. The defence is that this Chand Buksh Sarkar is not the landlord of the appellant, but a travelling munshi or tutor who for some time resided with the family of one Mansur Ali in north Pachania. It is necessary to understand the case to state that the village of Pachania consists of 4 chaks or hamlets, North and South Pachania, Bahar Chak Pachania and another which is immaterial. The landlord Chand Buksh Sarkar is a resident of Bahar Chak Pachania.
3. The learned Judge seems to us to have erred on many points of law which arise in the case, He begins by saying that the loss of the original document might have been a very serious difficulty to this case going on were it not for the fact that the defence case is that it was not the complainant, Chand Buksh Sarkar who signed the name as witness but another Chand Buksh who was a munshi living in the bari of Mansur Ali. He then proceeds to throw the onus on the defence of showing that this Chand Buksh was a real person. The further allegation of the defence was that the nazar was fixed at Rs. 100 and that half of it was received by the landlord in the shape of a cow, two goats and a plough. The Judge finds that there is no doubt on the admission made by the complainant that he did get the plough and cow and the Sub-Registrar, who inquired into the matter and gave evidence on the point, clearly finds that these were handed over to the zemindar Chand Buksh. Now the witnesses say he bought these things on account of a marriage. The contention that a plough or more than one plough is necessary for the purpose of marriage seems to us absurd, and we decline to believe it. The Sub-Registrar also finds that Haidar was in possession when he went to the village. The learned Judge was in error in saying that this is not evidence. He does not say how it is not evidence. The Sub-Registrar saw with his own eyes apparently that Haidar was in possession. There can be no reason why he should not give evidence of that fact. The principal error he has Committed is as we have noted where he says: 'In all these circumstances, the burden lies on the accused to prove that Chand Buksh signed the deed and this burden they have failed to discharge.'
4. But the gravest error of all he has committed is in holding that a charge of forgery can lie against a person who was not the writer of the forged document, or who did not sign the forged name. This error originated in the charge itself which was drawn up in the form that he made or caused to be made a false document. Now making a false document is one thing and causing a false document to be made is another. One is an offence under Section 465, the other is an act at most of abetment. On this ground alone, therefore, the conviction under Section 467 is bad. Furthermore, the charge is vitiated by the fact that the intention is nowhere set out; and we do not think that the prosecution has at all succeeded in establishing that the intention was to fraudulently bind the zemindar, Chand Buksh by his alleged signature as witness. Such a proceeding would, in our opinion, be extremely improbable. The zemindar would not be an attesting witness to a kabuliyat in his own interest, and the person getting up a forged kabuliyat would not enter the name of the beneficiary as a witness. The entry of his name as a witness would not, in any way, bind the zemindar in the Civil Court, and here again the learned Judge is wrong. He says there can be no doubt that it would be held by the Civil Courts that the production of this copy coupled with the fact of the previous kabuliyats and his previous possession gave certeris paribus Haidar Ali an excellent title to the land and this chiefly because Chand Buksh's name appears as a witness in the kabuliyat. The learned Judge appears to think that our Civil Courts conduct their trials in a slip-shod and irregular fashion. We can hope that it would never be held by a Civil Court without strict proof that the zemindar was in any way bound by the alleged fictitious signature of his on the kabuliyat as a witness.
5. Then again, in his opinion the description of the witness as an inhabitant of Pachania and not of Bahar Chak Pachania is of no importance; but at law this would be of the greatest importance, and in this case it assumes the greater importance from the fact that there is admittedly another Chand Buksh residing in South Pachania and there is an allegation that this travelling munshi of the same name had resided at North Pachania There is nothing to show that this statement is untrue. Chand Buksh says that he knew Mansur Ali and he would have known if such a person had been tutor in his family. But he is, of course, an interested witness and he is not supported by any other witness and his evidence at least is negative. The other evidence on the point is that of Rahimuddi Bepari, a cultivator, who proves the existence of another Chand Buksh whom he mentions as son of Ashu in South Pachania, and says besides him there is no other Chand Buksh in the 4 Pachanias. It is conceded that there is no other Chand Buksh now in the 4 Pachanias but he nowhere says that there had been no other Chand Buksh staying in the village. Then the peon says that the accused himself told him that there is no good looking for Chand Buksh because he had left the village. That has been the defence case all along and does not in any way go to prove that there never was such a person as the munshi alleged. Then it is said that there is no suggestion made to the Sub-Registrar when he went out. The Sub-Registrar does not seem to have directed his attention specially to the point whether there was or was not another Chand Buksh. He directed his attention more to the question whether Haidar was in possession of the land and whether he had paid any nazar for the kabuliyat. In any case, his evidence is also quite negative.
6. We notice that the accused's statement in the Committing Court which was read before the Sessions was a most improper instance of the practice of cross-examining an accused person. The questions that were asked him ought never to have been asked, and an obvious attempt was made to induce him to incriminate himself.
7. We think there is a good deal of doubt in this case. But, however, that may be, the main point is that no forgery is established. Even admitting that the name of Chand Buksh was a fictitious name, it would not make the document a false document. Section 464 is very clear. Even supposing that part of a document is false, that part must have some material effect on the transaction. A mere surplusage, even though fictitious, would not invalidate a deed. The part of a document in order to come within the definition of false document must be dishonestly or fraudulently made, signed, sealed or executed by the person who is charged; and in this case there is nothing to show and in fact it is fully admitted that the accused person did not make it himself; and it must be made with the intention of causing it to be believed that such document or part of a document was made, signed, sealed and executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed. Now as there are two witnesses to this document besides this Chand Buksh, it could have no effect on the validity of the document whether this name was or was not fictitious; and if it was the intention of the accused as alleged by the prosecution that this should be used in future as evidence that the zemindar himself was a witness to the kabuliyat, that might bring the case within the definition of fabricating false evidence for the purpose of being used in a judicial proceeding or it might be a preparation for the offence of cheating but certainly does not amount to forgery.
8. As regards the alleged abetment charged against the second appellant, there seems to be no evidence whatever. He is admitted to be the scribe of the document, but it is not alleged that he wrote the name of Chand Buksh Sarkar as a witness, and the Judge merely presumes that if Haidar Ali, an illiterate man, caused this document to be made with fraudulent intention and thereby committed forgery, a theory which we have already stated is untenable, then it must be assumed that the scribe Affsaruddin was a party to the false personation of the witness, Chand Buksh Sarkar. On the very doubtful state of the evidence in this case, such an assumption cannot possibly be made.
9. We, therefore, think that both the appellants are entitled to be acquitted and released. The appeal is allowed. The conviction and sentences are set aside and the appellants will be acquitted and released.