KRISHNA PROSHAD MANDAL Vs. RABINDRA NATH DINDA

JUDGEMENT

(1.) We are invited in this Rule to set aside an order by which the Court of appeal below, in reversal of the order of the original Court, has directed the prosecution of the petitioner under Section 195 of the Code of Criminal Procedure for attempt to commit an offence punishable under Section 471 of the Indian Penal Code. The circumstances under which the order has been made are not disputed before this Court. On the 18th August 1909, the plaintiff, now opposite party before us, instituted a suit for recovery of arrears of rent against the petitioner. On the 7th September, the defendant filed his written statement in which he pleaded payment of the sum claimed to the officer of the plaintiff. On the 19th December the defendant filed what purported to be a receipt for the sum alleged to have been paid. On the 3rd March 1910, the plaintiff petitioned to the Court not to accept this receipt, because it had been filed too late. The plaintiff further appears to have impugned the genuineness of the document. On the 31st March, the defendant petitioned to the Court that the document then on the record might not be accepted as genuine. He asserted that the receipt filed by him had been removed from the record and in its place had been substituted the document which was justly impugned as forged by the plaintiff. On the 8th April, the suit was decreed, and we have been informed that no evidence was adduced by the defendant to prove the payment alleged to have been made by him. On the same day, the successful plaintiff prays that the receipt might be kept in safe custody, and on the 7th May following, he applied for sanction to prosecute the defendant. The defendant contended that he had not committed any offence. He denied that the receipt on the record had been filed by him and he reiterated his former statement that the document impugned as forged had been substituted by some person for the genuine document originally produced by him. The Court disbelieved this evidence and came to the conclusion that the document on the record had been originally filed by the defendant. But the Court refused the application under Section 195, in view of the decision of this Court in the case of Ambika Prasad v. Emperor 35 C. 820 : Cr. L.J. 398 which was treated as authority for the proposition that the filing of a document in Court was not an act which constituted an offence within the meaning of Section 471 of the Indian Penal Code, because it had never been tendered in evidence. The plaintiff then appealed against this order. The learned Judge has held, upon the authority of the decision of this Court in Queen-Empress v. Laid Ojha 3 C.W.N. 653 that the defendant is liable to be prosecuted for an offence under Section 471 of the Indian Penal Code read with Section 511; he has also directed the defendant to pay to the plaintiff the costs of the proceedings under Section 195, Criminal Procedure Code.

(2.) This decision has been assailed before us on two grounds, namely, first, that the petitioner has not committed any offence, and, consequently, his prosecution cannot be directed under Section 195; and, secondly, that no order for costs ought to be made against him even if the order under Section 195 is maintained. In our opinion the first of these contentions is unsustainable but the second must prevail.

(3.) It is clear upon the facts stated which have been determined only for the purpose of the present proceedings, that the applicant is liable to be prosecuted for attempt to commit an offence punishable under Section 471, Indian Penal Code. The Courts below have concurrently found that the receipt in question is a forged document and was filed by the defendant in support of the allegation previously made in his written statement that he bad paid to the officer of the plaintiff the sum claimed as arrears of rent. Two questions, therefore, arise for consideration, namely, first, whether the applicant has used as genuine a document which he knew to be forged, and, secondly, if this question be answered in the negative, whether he has attempted to use a document as genuine which he knew or had reason to believe to be forged.