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Elahi Baksha Kazi Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in45Ind.Cas.258
AppellantElahi Baksha Kazi
RespondentEmperor
Cases ReferredEmperor v. Jogender
Excerpt:
civil procedure code (act v of 1908), order xviii, rule 5, non-compliance with provision of, whether makes deposition inadmissible - object of provision--deposition not read over to witness, whether admissible in evidence--evidence act (i of 1872), section 80. - .....and abetment of the use of forged doouments framed under sections 467 and 471, indian penal code, read in each case with section 109 of the same code. the jury returned a unanimous verdict of guilty on both the charges and the learned sessions judge accepted the verdict and sentenced the appellant for each offence to six years' rigorous imprisonment, directing, however, that the sentences should run concurrently. the charges relate to a series of seven bonds. the case for the prosecution is that these seven bonds were forged by or with the connivance of one sridam in order to take the place of seven genuine bonds. it appears that sridam and his brothers had borrowed money from nakari grope, the father of mohim chandra gope, the complainant in the present ease. it is alleged that.....
Judgment:

Richardson, J.

1. The appellant was tried before the Additional Sessions Judge of Dacca and a Jury on charges of abetment of forgery and abetment of the use of forged doouments framed under Sections 467 and 471, Indian Penal Code, read in each case with Section 109 of the same Code. The Jury returned a unanimous verdict of guilty on both the charges and the learned Sessions Judge accepted the verdict and sentenced the appellant for each offence to six years' rigorous imprisonment, directing, however, that the sentences should run concurrently. The charges relate to a series of seven bonds. The case for the prosecution is that these seven bonds were forged by or with the connivance of one Sridam in order to take the place of seven genuine bonds. It appears that Sridam and his brothers had borrowed money from Nakari Grope, the father of Mohim Chandra Gope, the complainant in the present ease. It is alleged that on the 3rd Aswin 1316 (September 1909) Sridam executed seven bonds in favour of Nakari, on which Nakari's son Mohim, Nakari himself having in the meantime died, instituted a suit on the 15th August 1913. The suit was against Sridam and his brothers. On the 18th November 1913 the latter filed their written statement and with it they filed the bonds which are alleged to be forged. The endorsements on the back of those bDnds, purporting to show that the bonds wer.e satisfied by payment on the 31st Ghaitra, 1319, are also said to be forgeries. Mohim's suit was tried by the Munsif, who found that the bonds produced by the plaintiff were genuine and that the bonds produced by the defendants with the endorsements were forged. After that decision Mohim presented an application for leave to prosecute Sridam and his brothers for forgery and other offences. The learned Munsif who tried the suit refused to grant the sanction. Mohim then moved the District Judge who, under Section 476, Criminal Procedure Code, directed that Sridam and his brother should be prosecuted for certain offences including forgery. A motion against that order was made to the High Court, but the Court refused to entertain it. Then followed further proceedings, the result of which was that Sridam and his brothers were tried for forgery and that Sridam was convicted of the offence. The order of the District Judge under Section 476, Criminal Procedure Code, also directed the prosecution of the present appellant Elahi Baksha Kazi. The latter was tried for perjury and was acquitted of that offence. He was then placed on his trial on the charges of which he has now been convicted.

2. The learned Pleader for the appellant has contended before us that the trial in the Court below is vitiated by the reception of evidence which is not admissible under the law. The contention relates to the deposition of the appellant in tLe suit brought by. Mohim, and the point taken is that the formalities required by Rules 5 and 6 of Order XVIII, Civil Procedure Code, were not observed. It is not disputed that the evidence was given on oath. But it is said that after the deposition had been written down by the Munsif, it was not read over to the witness as Rule 5 requires or at any rate that it was not read to the witness in the presence of the Judge. Upon that it ia argued that the deposition is' not legally a deposition at all and that the Judge was wrong in allowing it to go to the Jury. In support of the contention reference is made to the cases of Mayadeb Oossami, In the matter of the petition of 6 C 762 : 8 C.L.R. 292 : 3 Ind. Deo. (N.S.) 494 and Kamatchinalhan Chetty v. King-Emperor 28 M. 308 : 2 Cr. L.J. 756. If as a matter of fact the appellant's deposition was not interpreted and read over to him in the prescribed manner, the cases cited support the contention advanced, unless the rule laid down is to be confined, as it seems to have been in the past, to prosecutions for perjury. Our attention, however, has also been drawn to the case of Bogra, In re 7 Ind. Cas. 414 : 34 M. 141 : 8 M.L.T. 117; (1910) M.W.N. 435 : 20 M.L.J. 943 : 11 Cr. L.J. 482, where a different note, and as it seems to me, the tiue note is struck. The cases of Mayadeb Gossami, In the matter of the petition of 6 C 762 : 8 C.L.R. 292 : 3 Ind. Deo. (N.S.) 494 and Kama-tchinathan Ghetty v. King-Emperor 28 M. 308 : 2 Cr. L.J. 756 have been followed in other cases, for instanse, Emperor v. Jogender, Nath Ghose 21 Ind. Cas. 571 : 42 C. 240 : 18 C.W.N. 124 : 15 Cr. L.J. 483. Speaking for myself, however, with great respeot I am not sure that I. clearly understand the principle of those decisions. Under Section 80 of the Indian Evidence Act the deposition of a witness taken in accordance with law and purporting to be signed by a Judge or Magistrate proves itself. No other proof is required than the production of the deposition. I should have thought that a provision requiring a deposition to be read over to a witness was in its nature directory, and that if it were not complied with in a particular' case, the deposition, while it might perhaps lose the benefit of Section 80 of the Evidenee Act, might still be proved in some other way. No doubt Section 91 of the same Act says that in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of such matter except the document itself. But even if a deposition comes within that enactment, no question arises of proving the contents of a deposition except by the production of the deposition itself. The question is how is the deposition to be proved. There is no provision in the Code of Civil Procedure which expressly precludes a deposition from being received in evidence unless it has been read over to the witness in the presence of the Judge. In the case of a document which requires registration but is not registered, it is inadmissible in evidence not by reason of the provisions of Section 91 of the Evidence Act, but by reason of the express provisions on the subject contained in the Registration Act. As at present advised I can see no reason why even in a prosecution for perjury failure to comply with the provisions of Rules 5 and 6 of Order XVIII should render a depoution entirely inadmissible in evidence, or why, if Section 80 cannot be called in aid, the deposition should not be proved, for instance, by the Judge who took it down or by the admission of the deponent. If it can be proved in some such way, Section 91 will have no application. But it is not necessary to determine this question in the present case, because the learned Pleader for the appellant has not been able to satisfy me on the record as it stands that the deposition of the appellant was not in fact read over to him as the Code requires. The Munsif was put in the witness-box for the prosecution. The Pleader for Sridam's brother, was also examined. Neither was asked in cross-examination whether the appellant's deposition was read over to him after it had been recorded by the Code. The deposition bears the signature of the Munsif. It also bears the signature in Bengali of the appellant. The presence of the appellant's signature at the end of the deposition certainly supports the inference that the document was read over to him. There is nothing in the record to show that this was not done. The signature was presumably affixed in token that the deposition had been correctly recorded. No doubt the words which sometimes appear at the end of a deposition read over and admitted to be correct' do not appear in the present case before the appellant's signature. But the Code does not require that those words should be inserted. From my experience of the practice of the Courts below I may be more disposed to doubt whether the reading over of the deposition took place in the presence of the Mnnsif. But it still remains that there is no suggestion in the evidence that the law was not complied with. In my opinion, as the record stands, there is no ground for the contention that this deposition was not admissible in evidence. The point, I may add, was not taken in the Sessions Court.

3. As to the substance of the matter, there is no shadow of a suggestion that the appellant did not say what he is recorded as having said. The objection taken to the trial is an entirely technical one, and it is conceded that apart from this technical objection, the propriety of the appellant's conviction oannot be contested. In view of the charge of the learned Sessions Judge there appears to be no doubt and in fact no dispute that the appellant was the writer of the documents which have since been found to be forged documents and if his deposition as, as I hold, properly received in evidence, the Jury had ample grounds for finding that the part which he took was a fraudulent and dishonest part.

4. The learned Pleader for the appellant has asked us to use our powers under Section 428, Criminal Procedure Code, and to examine or to direct the examination of the Peshkar of the Munsif's Court at the time when the appellant's deposition was recorded in the civil suit. In support of that application the learned Pleader has filed a copy of the deposition given by the Peshkar in the course of the trial for perjury. I have read that deposition and come to the conclusion that no useful purpose would be served by directing additional evidence to be taken at this late stage.

5. In the result, I would affirm the conviction. As regards sentence I think that four years' rigorous imprisonment would sufficiently meet the ends of justice. I would, therefore, reduce the sentence from six years to four years' rigorous imprisonment under each charge and maintain the order that the sentences are to run concurrently. With this modification, the appeal should be dismissed.

6. Beachcroft, J.--I agree. I have always felt doubt as to the correctness of the decision in the case of Mayadeb Gossami, In the matttr of the petition of 6 C 762 : 8 C.L.R. 292 : 3 Ind. Deo. (N.S.) 494 and take this opportunity of endorsing the opinion expressed by my learned brother on the point decided in that and other similar cases.

7. Section 91 of the Evidence Act is based on the principle that the only proper evidence of the contents of a document is the document itself. And the object of the provision in Order XVIII, Rule 5, Code of Civil Procedure, requiring a deposition to be read over to a witness is to ensure accuracy. I confess I do not see why on principle a Court should be precluded from ascertaining what is in a document, from the document itself, merely because the contents of the document may not in fact be correct. Failure to take the necessary precautions to ensure accuracy may create doubts as to whether 'the record correctly represents what the witness said, but, in my opinion, it cannot affect the admissibility of the document in evidence if the making of the document is otherwise proved.


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