EMPEROR Vs. BANSI SHEIKH

JUDGEMENT

(1.) This is a reference by the Assistant Sessions Judge of 24-Parganas under Section 307 of the Criminal P. C.. The accused was charged with an offence under Section 471 read with Section 467, Indian Penal Code, the offence of fraudulently and dishonestly using a forged document, namely, a kobala, purporting to have been executed by one Thakurdasi Devi in his favour. The jury by a majority of four to one gave the accused the benefit of doubt. The other juror gave his opinion as guilty, and the learned Judge having disagreed with the verdict of the majority of the jury has referred this case to this Court.

(2.) The story as told by the prosecution may be shortly stated in order to understand the circumstances under which this prosecution was started. One Thakurdasi Devi was the owner of a certain plot of land which she had purchased from one Gobinda Tewari. She was living as the mistress of one Swarup Das who had died in the year 1899. After his death she was living in the house of his son Srimanta for some time. Then there was a quarrel between them apparently and she went to live elsewhere. It seems that Srimanta wanted to have a benefit out of this fact and to take possession of the property as his own. First, there appears to have been a mortgage executed by him in favour of the accused Bansi Sheikh in the year 1912 in which it was alleged that the possession of the land had been made over to Bansi Sheikh. Then in the year 1915, Srimanta sold the land to one Romanath P.W. No. 7 and Romanath under that deed purported to have purchased the equity of redemption. After this purchase Romanath is alleged to have offered the mortgage money to the accused in order to redeem the property. The accused refused to accept the money and thereafter Romanath deposited the mortgage money in Court and then in July, 1918, brought a suit against Bansi, the accused, for redemption of the property and Srimanta was also impleaded as a defendant in the case. Bansi Sheikh appeared in that suit on the 12 December, 1918, and took time to file the written statement. This was done on the 2nd January, 1919, and the written statement is on the record of this case. In that written statement he alleged that he was in possession of the land originally as a tenant of Thakurdasi Debi and that he had subsequently purchased Thakurdasi's interest from her by a kobala, and this kobala is the subject-matter of the present prosecution. The kobala was alleged to have been executed on the 20 December, 1918, and registered in the Presidency Registration Office at Alipore on the same date. But this document was not filed by the accused, who was defendant in the suit, in the Munsif's Court. The suit of Romanath was decreed by the trial Court on the 31 March, 1919. On the 6 May, 1919, the accused presented an appeal before the District Judge of Alipore and with the memorandum of appeal, he filed the kobala dated the 20 December, 1918, purporting to have been executed by Thakurdasi Debi in his favour in Court. This appeal of the accused was decreed on the 28 August, 1920. Then what happened was that Thakurdasi Debi sold the land to one Jogendra Mandal by a registered kobala dated the 1 October, 1920. The story then is that Thakurdasi Debi endeavoured to put Jogendra Mandal in possession of the property but they were turned out by the accused on the allegation that he had purchased the property by a kobala from Thakurdasi Debi and was therefore the owner of it. Then Thakurdasi Debi applied to the Court of appeal, which decreed the appeal of Bansi Sheikh as against Romanath, for retaining on the record the kobala which had been filed by Bansi Sheikh purporting to have been executed by herself in his favour and also for sanction for prosecution of Bansi Sheikh for using the kobala, which she alleged to have been a forged document. Sanction was granted by the Subordinate Judge who had decided the appeal on the 26 May, 1921. Certain other proceedings appear to have been taken with regard to the sanction but we are not at present concerned with them, because what appears from the record is that the sanction of the 26 May, 1921, was acted upon as sanctioning the prosecution of the accused.

(3.) From the evidence that was produced before the lower Court, there cannot be any doubt that the kobala purported to have been executed by Thakurdasi Debi on the 20 December, 1918, in favour of Bansi Sheikh, had not been executed by the real Thakurdasi Debi. She was examined as a witness in the Court of the Committing Magistrate and was cross-examined on behalf of the accused, but unfortunately she had died before the trial in the Sessions Court. Her evidence distinctly shows that she had never executed the kobala which was said to have been executed by her in favour of Bansi Sheikh. That kobala was signed on her behalf by one Daliluddi. This man did not know Thakurdasi at all. He is witness No. 4 for the prosecution, and he is unable to say whether it was the real Thakurdasi Debi who had executed the document or who the persons were who asked him to execute the document on behalf of Thakurdasi Debi. The document was registered and a person named Uma Charan Das, alleged to be an inhabitant of Chitraganja, that is the place where Thakurdasi Debi was alleged to have been living at the time, identified Thakurdasi Debi. One Uma Charan Das has been examined in this case before the Sessions Court. He says that he is an inhabitant of that village but he never identified Thakurdasi Debi before the Registration Officer and he was not the son of Swarup Das whose name was given as the father of the identifier, nor was he a napit by caste which was the caste given of the identifier. There is no evidence however on the record that there was any other Uma Charan Das of that village who answered the description of the identifier as given in the endorsement of the registering officer on the kobala. The fact however remains that Thakurdasi Debi denied the execution of the kobala. No suggestion has been made that the woman who was the owner of the property was not the woman who gave her evidence before the Sub-divisional Magistrate in this case, and there is nothing to show that what she stated as regards the fact that she had never executed the kobala has any element of doubt in it. In addition to her statement there is the fact that the thumb impression which was taken on the back of the document does not tally with the thumb impressions which were taken of Thakurdasi Debi either in the Court of the Sub-divisional Magistrate or in the Court of the Subordinate Judge when he made the enquiry with reference to the grant of sanction for prosecution in this case. On the other hand, there does not appear to have been any suggestion made in the cross-examination of any of the witnesses that the real Thakurdasi Debi had really executed a kobala.