ABDUL QAIYUM KHAN Vs. EMPEROR

JUDGEMENT

(1.) IN this appeal there have arisen some points of difficulty. The main facts, however, present no difficulty. The appellant has been convicted of using as genuine a forged document in an audacious attempt to secure landed property which belonged to certain of his own relatives who reside at some distance from his village. The appellant is lambardar of his village. On the facts it is difficult to say whether one is more impressed by his moral obliquity or his extraordinary foolishness. He apparently thought that it would be easy to obtain the fabrication of a sale-deed by which his absentee relatives purported to transfer some property in his village to his brother and by forging powers of attorney on behalf of the alleged vendors to obtain mutation of names in the revenue Courts. As apparently he was already in actual possession of the property it is difficult to see why he wished to pile crime on crime to cover up what was presumably his previous dishonesty in misappropriating the income of his relatives property. However he chose to take that course and applied for mutation before the Naib Tahsildar, who had the powers of a Thasiidar. The Naib Tahsildar was not imposed upon and was holding the matter up to ascertain whether the alleged vendors had or had not executed the sale-deed. Before the question of mutation had been decided in the Naib Tahsildar's Court a pardanashin lady, who was one of the relatives whom the appellant was endeavouring to defraud, put in a complaint before the Tahsildar who is a Magistrate with second-class powers. This complaint did not bear a stamp but a stamp was added afterwards. The complaint does not state the remedy desired very definitely but it was to the point. It stated that the lady had come to hear that Abdul Qaiyum, the appellant, had put in a forged sale-deed by which he was endeavouring to cheat her of her property and asked that he should be punished. It did not give any details but it could be read in a variety of ways and it might be read as a complaint of cheating which the Tahsildar as a Magistrate of the second class was competent to entertain. I do not think that the Tahsildar realty applied his mind very much as to the exact powers that he had in the matter, but as far as I can see he had powers in the master and his action afterwards was justifiable in every way. He made a very careful inquiry into the truth of this lady's allegation as a result of which he ordered the prosecution of Abdul Qaiyum under the provisions of Section 476 of the Code of Criminal Procedure and Abdul Qajyum has been convicted and sentenced under Section 467 as explained by Section 471 of the INdian Penal Code to five years rigorous imprisonment. Upon the merits there can be no doubt as to the correctness of the conviction. It is proved up to the hilt that the deed was forged. One of the alleged executants is proved to have been dead at the time that the deed was supposed to have been executed. It is proved that Abdul Qaiyum purchased the stamp and there cannot be the slightest doubt as to the fact that he was the main person instrumental in getting the deed forged. His learned Counsel has not argued at length upon the merits of the conviction. He has pressed however earnestly that the whole proceedings are vitiated from the beginning. His case, which he has put as well as it could be put, is that Tahsildar had no authority to order a prosecution under Section 476. Although such a point should be taken at the very commencement of the trial and not, as has been the case here, never urged during the trial but raised for the first time on appeal, the learned Counsel is quite within his rights in pressing the point now. Some times failure to take such a point at once is fatal as was pointed out by Chamier, J., in King-Emperor V/s. Pancham (1901) A.W.N. 151 and if the matter can be considered a mere irregularity Section 537 would undoubtedly apply. If it is an illegality there is an end of the matter; the conviction would have to be set aside. If it was an irregularity its nature would have to be considered. But it is not necessary to discuss the effect of an irregularity because I am satisfied that there has been neither illegality nor irregularity. The Tahsildar must be conceived to have been acting as a Criminal Court and to have bean put in motion by the proper procedure. Although as a result of his enquiry it might have been discovered that he could not take cognizance of the case, he was certainly authorised in fact required to make an inquiry which was of the nature of a judicial proceeding, and in the course of that judicial proceeding he considered that the facts showed that a forgery had been committed. There-, fore he had authority to act under Section 476 and in these circumstances the objection cannot succeed. IN respect of the merits of the case, as I have said, there can be no doubt. I do not consider that there is any necessity to reduce the sentence. It may be urged that the appellant was committing a very foolish act because it was almost impossible that his offence would escape undetected. That is so. But he has shown himself to be actuated by the worst motives and to have endeavoured to perpetrate a particularly bad fraud upon his own relations by means of forgery and I see no reason to reduce his sentence. I find that be has been admitted to bail. Ha will at once surrender and complete his sentence. His appeal is dismissed.