MONTAJADDIN CHOUKIDAR Vs. EMPEROR

JUDGEMENT

(1.) The ground on which this Rule was obtained is that the alleged offence having been committed by a party to a proceeding in a civil suit in respect of a document given in evidence in such suit, no criminal Court can take cognizance except on the written complaint of the said civil Court under Section 195, Clause 1(c), Criminal P.C. The petitioner Montajaddi Choukidar was convicted of an offence punishable under Section 468, I.P.C., and also with an offence punishable under Section 82, Registration Act. It appears that he was a party to a mortgage- deed which purported to create a security in favour of a certain lady who had lent money to the petitioner and his brother, a man named Ainuddi. Ainuddi was also on the face of the document, a party to it and the property affected by the document was the property jointly owned by the petitioner and Ainaddi. The lady brought a civil suit on the document and Ainuddi took two defences. In the first place he denied execution and stated that his signature on the document was not a genuine signature and he also stated that he was a minor at the time of the alleged execution. The civil Court found that the document was executed by Ainuddi and disbelieved his case on that point but held that he was, as he stated a minor at the date of the execution. As a result the suit was dismissed as against Ainuddi and the plaintiff obtained a decree which only entitles her to enforce her security as against the petitioners share of the property. No, application was made asking the civil Court to make a complaint against Ainuddi for giving false evidence. Subsequently however the plaintiff in the civil suit instituted proceedings in the ordinary way against the petitioner, Ainuddi, and a relation of theirs named Montajaddi Akond. Ainuddi was acquitted but the present petitioner was convicted under Section 468, I.P.C., and Section 82, Registration Act.

(2.) The Court had found that the petitioner and Muntajaddi Akond went to the Registration Office with a man named Safar Ali and that Safar Ali, with the assistance of his companions, personated Ainuddi and induced the Sub-Registrar to register the document in respect of which a suit was subsequently instituted. In my opinion the conviction of the petitioner under Section 468, I.P.C., which has been affirmed by the learned Sessions Judge, cannot stand. As far as I can see there was no evidence at all that the signature was the actual work of the petitioner and, in any event, it appears to me which is also Mr. Talukdar's contention, that the case is one covered by Section 195, Clause 1(c), Criminal P.C., and therefore the proceedings were vitiated by the absence of a complaint made by a Court. I there fore think that the conviction under Section 468, I.P.C., should be set aside. These considerations do not however apply to the petitioner's conviction under Section 82, Registration Act. If the finding of the trial Court and the lower appellate Court is correct then Safar Ali personated Ainuddi and in such character presented the document for registration. He therefore committed an offence punishable under Section 82(c), (Registration Act. Further the findings of the lower Courts make it clear that the petitioner assisted Safar Ali in personating him as Ainuddi. He therefore abetted Safar Ali's offence under Section 82(c), Registration Act, and thereby rendered himself liable to punishment under Section 82(d). The only difficulty that I feel with regard to the charge under the Registration Act is that it is not very happily worded because it does not specify the offence of abetment. However although the charge is defective I do not think that its shortcomings have misled the petitioner in any way or have occasioned a failure of justice. Mr. Talukdar has urged upon us that a criminal Court is precluded from coming to a finding different from that of a civil Court and he argued that the question of the genuine nature of the document is concluded by the findings of the civil Court in the suit brought upon the document where it was found that Ainuddi Was the executant. I agree that in cases falling within Section 195, Criminal P.C., where the complaint of a Court is necessary, difficulties of the nature indicated may arise. I do not think we are bound to pay much attention to the findings of the Munsif's Court specially when the finding is one against which the person affected by it could not appeal because he was successful in the suit on other grounds. The Rule has not been issued on the ground that the sentence is excessive and seeing that under Section 82 the sentence of seven years rigorous imprisonment is permissible we do not consider a sentence of six months rigorous imprisonment is by any means excessive.

(3.) The result is that the convictio n and sentence under Section 82, Registration Act is upheld. The petitioner, if on bail, will surrender to his bail bond and serve out the remainder of the sentence.