RADHESHYAM DUBEY Vs. CHANDRA BALI SINGH

JUDGEMENT

(1.) The present application for leave to appeal is directed against an order of acquittal by the Magistrate. It is submitted that the complaint was under sections 420 I.P.C., 423, 465 I.P.C. and connected sections. Before me it is now conceded that offence under section 420 I.P.C. not made out in view of the ingredients of that offence. It is, however, urged there is offence under section 423 I.P.C. and 465 I.P.C. duly made out.

(2.) The complaint allegations regarding facts are that the accused persons entered into a conspiracy and accused person No. 1 sold certain property to other accused person under a fictitious sale deed while the property actually belonged to the applicant. I proceed to consider whether on such facts application of section 423 I.P.C. would be attracted. Reliance was placed upon the case of Lachhman Das v. Emperor. One of the necessary ingredients of the offence under section 423 I.P.C. is that the document by which transfer is made should contain any false statement relating to the consideration. It is not every false statements but false statement relating to consideration alone which will attract the application of section 423 I.P.C. In the case of Lachhman Das (supra) the transaction was relevant for defeating right of pre-emption find the matter was approached from that angle and holding that no consideration passed the applicant was held guilty under section 423 I.P.C. the facts are thus distinguishable.

(3.) The other case relied upon is the case of Amiri Singh v. Emperor. In that case it was held that fabrication of the fictitious document itself was an offence under section 423 I.P.C. actually what transpired was that the judgment-debtor executed a document with false recital as to the consent of the decree-holder to take their land and this was done with a view to defeat a claim made in a suit. It is note worthy that Patna High Court in its later ruling reported in the case of Mathura Nath Sah Deo and another v. Biria Uraon laid emphasis that false statement must relate to consideration. In that case a false statement as to the area of the land was made by the borrower securing loan from the Government, and a charge for consideration was treated on the land yet it was held that as the false representation did not relate to the consideration as such one of the necessary ingredients of section 423 I.P.C. is not made out. It is a settled law that in case of single judge pronouncement of any court it is later pronouncement which is to prevail and that being the position, the later authority of Patna High Court will have a greater weight.