MOBARAK ALI Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal from the judgment and sentence of the learned Sessions Judge of Noakhali who, agreeing with both the assessors, convicted the appellant Mobarak Ali under Section 471 read with Sections 466, 474 and 193, Indian Penal Code and sentenced him under Section 471 road with Section 466 to rigorous imprisonment for five years and passed no separate sentence under Section 474 and Section 193.

(2.) It appears that the accused, as the plaintiff in Suit No. 245 of 1910, filed a certified copy of a decree of the Munsif dated Sraban 1302 and in the certified copy filed by him he altered Sraban 1302 to Sraban 1301. The alteration is clear and apparent on the face of the document, and it is not now disputed. Now it is alleged by the prosecution that the only object in making this alteration was to establish that his mortgage was prior to that of the defendants, and that was the plea he took in his plaint, and the list of documents by which the plaint was to be supported contained this copy of the decree as the first document on the list and obviously it was the basis of the claim made in the plaint. It was verified on affidavit by the accused himself as the plaintiff. As a matter of fact, he did not file the document till the 26th August, the plaint having been filed on the 16th July. But the forgery was not discovered till the 6th December when the defendant haying taken advice from the Muktear who appears to have been concerned on behalf of the accused in the suit of 1897, that gentleman on referring to his note-book found that the proper date of the decree was 1302. The defendant Abdul Aziz thereupon brought the matter to the notice of the Court and the Court called upon Mobarak Ali to make a statement. That statement is Exhibit 7. In that statement Mobarak Ali took the responsibility for making over this decree to his Pleader, Babu Susil Chandra Chatterjee, for filing it on has behalf in Suit No. 730 of 1910, and said that the document was entered as the principal one in the list of document. It will be observed that he says nothing there as to his brother. Hasan Ali, lately deceased, whom he now suggests may have made the alteration.

(3.) The first point taken in appeal is that there is nothing to raise any presumption of guilty knowledge on the part of the accused. The learned Judge says rather vaguely in one part of his judgment that it has been held that the fact that a man is interested in establishing the contents of a forged deed raises a presumption that he filed it knowing it to be forged. The learned Judge has not given us any reference and we are unable to accept this proposition. It is a proposition which is far too wide. The authorities, on the contrary, are that there must be the using of a document by a person who knows or has reason to believe that it is forged. The element of fraud or dishonesty must be present in the mind of the accused.