ASGARALI S/O. MULLA IBRAHIMJEE MUSALMAN Vs. EMPEROR

JUDGEMENT

(1.) THIS is an appeal under Section 476B, Criminal P.C., from a complaint laid by the Additional District Judge, Nagpur, against the appellant for the offence of perjury punishable under Section 193, Penal Code. The facts of the suit (No. 227 of 1931) out of which this appeal arises are somewhat complicated. The appellant had filed that suit against one Gulam Abbas to recover a sum of Rs. 19,037-9-3 which he had deposited on account of Gulam Abbas in Civil Suit No. 23 of 1923 under a surety bond executed by the appellant on 14th September 1925. To cover the risk undertaken by the appellant he caused a possessory mortgage to be executed by Gulam Abbas and Hatialli in his own favour on 20th October 1925 for Rs. 20,000 out of which Rs. 7647 represented old debt, Rs. 353 were paid for expenses and Rs. 12,000 were left with the appellant for the satisfaction of the decree in Civil Suit No. 23 of 1923. The appellant, in this suit, alleged that J the sum of Rs. 12,000 had been received by Gulam Abbas to meet his private needs and that Gulam Abbas further executed a sale deed for Rs. 28,000 including the Es. 20,000 due on the mortgage and Rs. 8000 received in cash for payment of his creditors. Thus, according to the appellant, Gulam Abbas had received the whole amount of Rs. 28,000 and nevertheless he had to pay Rs. 19,037-9-3 into Court on account of Gulam Abbas. The appellant alleged that out of this amount he had personally deposited Rs. 2872-12-3 and through Gulam Abbas Rs. 16,164-13-0 for which the latter executed a promissory note in his favour on 23rd February 1929. Gulam Abbas denied the appellant's allegation that he had received Rs. 12,000 out of the consideration of the mortgage and averred that the whole amount of Rs. 19,037-9-3 deposited by the; appellant was out of the consideration of the sale, deed. As to the promissory note, Gulam Abbas alleged that it was in reality executed in favour of the appellant's brother, Imran AH, on the understanding that it would subsequently be cancelled. Gulam Abbas desired the appellant, through his written statement and interrogatories, to produce his (the appellant's) account books. Not having got any response from the appellant, he summoned him as a witness with his account books from 1923 to 1931. In the witness-box, the appellant stated as follows:

(2.) GULAM Abbas, the defendant, examined Fazal Husain (1 D. W. 1), Abdulla Bhai (1 D. W. 4) and Akbar Ali (ID. W. 10) who, inter alia, stated that the plaintiff had account books. The trial Court negatived the defence and decreed the appellant's suit. Pending the appeal in the High Court, Gulam Abbas made an application on 23rd November 1935 praying for admission of additional evidence consisting of the appellant's deposition in Civil Suit No. 4 of 1927 wherein he had produced his Rojmel and Khata and said, "the books are regularly kept by me." The appeal was heard by the Division Bench of this High Court which, by its order dated 6th January 1938, directed the trial Court to recall the appellant to explain his deposition in Civil Suit No. 4 of 1927 and also to examine Mr. Imran Ali, appellant's brother. The appellant, when recalled and examined on 2nd February 1938, said as follows:

(3.) THE learned Judge concluded that the appellant intentionally gave false evidence by deposing "I maintain no account books of any kind" and that thereby he committed an offence punishable under Section 193, Penal Code. Although, technically there is no illegality involved in a successor-in-office exercising the power under Section 476, Criminal P.C., it is clear in this case that the Court which was presided over by the learned Judge had decreed the appellant's claim and could therefore not have contemplated taking action under that section. Nor has the Court as such taken this action suo motu but at the instance of a party to the suit. It was imperative on the learned Judge who presided over the Court to have examined the case uninfluenced by the opinion of the High Court. Even in cases such as Riazul Hasan v. Emperor (09) 6 A.L.J. 924 and Ghanram Rai v. Emperor A.I.R. 1924 All. 453, where the superior Courts had directed the lower Court to lay a complaint it was pointed out that for the validity of an order under Section 476, Criminal P.C., it was absolutely essential that the Court which makes the complaint should bring its own independent judgment to bear upon the facts pf the case. In, the first mentioned case Richards, J. set aside the order by observing: 'The order is nominally his but the "opinion" was the "opinion" of the District Judge'. These remarks literally apply to the present case. In this case, had the High Court thought it expedient in the interests of justice, to launch a prosecution it would itself have taken the necessary action. The omission of the High Court to take any step in that direction ought to have put the learned Judge on his guard against using the judgment as a foundation for his order. As the matter stands, the successful party moved the lower Court on the strength of the superior Court passed in his favour and the Court wholly adopting the reasoning, observations and conclusions contained in that judgment has laid the complaint. This does not appear to be the intention of Section 476, Criminal P.C. In Begu Singh v. Emperor (07) 34 Cal. 551 , Geidt J. observed: