SHERKHAN Vs. ANWARKHAN

JUDGEMENT

(1.) 1. The facts which have given rise to this Criminal Revision are briefly these.

(2.) THE non-applicant Anwarkhan instituted a suit in the Court of Small Causes at Akola by filing a verified plaint dated 1-7-1921 against the applicant Sherkhan for the recovery of a certain amount of money said to be due by the latter to the former in respect of a transaction dated 1-4-1918, which however the plaintiff chose to describe in his plaint as being one dated 1-7-1918. In the course of the same suit on 25-10-1921 he made an oral statement affirming the correctness of the date 1-7-1918 and characterised the date 1-4-1918 given in his books of account as written through mistake. At the adjourned hearing of the case 13-12-1921 the plaintiff in a penitent mood applied as per his application (Exhibit P-9), for permission to withdraw the suit, and the same was dismissed as withdrawn on that day. The defendant Sherkhan applied for sanction to prosecute the non-applicant for perjury in respect of the contents of the verified plaint dated 1-7-1921 (Exhibit P-2) and also of the oral statement made on affirmation dated 25-10-1921 (Exhibit P-20), so far as they falsely stated that the date of the transaction sued upon was 1-7-1918 and not 1-4-1918. The Judge of the Small Causes Court who had tried the case refused to grant sanction but the District Judge-thought that this was a fit case for ordering prosecution for perjury, and granted it. The order of the District Judge dated 15-12-1922 was confirmed in due course by this Court.

(3.) AS regards the first two points which dealt with the question whether the accused made the statement dated 25-10-1921 (Exhibit P-20), and also the declaration in the plaint (Exhibit P-2) concerning the date 1-7-1918, and whether such statement and declaration were made in a stage of judicial proceeding, the Sessions Judge held that they were so made. On the third point whether the statement and the declaration were false, he agreed with the trial Magistrate in concluding that the statement and declaration in question were false and incorrect. On the fourth point whether, when the aforesaid statement and declaration were made, the accused knew them to be false, or believed them to be false, or did not believe them to be true, and made them intentionally, the learned Sessions Judge came to the conclusion that the first declaration in the verified plaint was not shown to have been made with the knowledge that the same was false, or was believed to be false, or * * * * was not believed to be true, or was made intentionally. He also found that the verification of the plaint (Exhibit P-2) was not in strict accordance with the requirements of law in that behalf and the accused could not be said to have declared the contents so far as they gave 1-7-1918 as the date of the transaction sued upon, as true according to his personal knowledge. With regard to the statement dated 25-10-1921 (Exhibit P-20) it was observed that it was made after filing of the notices by Sherkhan in the Court of Small Causes, and that the said notices which contained the appellant's admission that the transaction was dated 1-4-1918 were conclusive proof of the fact that the date of the transaction was 1-4-1918, but that the accused in all probability did not realize, just then the importance of admitting the correctness of the date given by the defendant, and withdrawing the suit at once that very day. But the fact that he stuck to the statement in regard to the date lends support to the conclusion that he still continued to believe in the correctness of the date 1st July 1918 given in the rough memorandum (kacha Tipan Ex P-14). The Judge also thought that this belief may be due to dull understanding and want of keen perception on the part of the accused, or may be due to recklessness on his part, but that did not necessarily import lack of bona fides. It was found that the mere facts that the appellant made the statement dated 25th October 1921 could be no proof per se of his mala fides and his knowledge of, or belief in, the falsity of the statement. Lastly, he concluded that as mere suspicion of the bona fides of the accused was no legal or affirmative proof of lack of good faith and of the requisite knowledge or belief which are necessary to justify the inference of guilt, and as the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of kist guilt, and as they did not stand this test in the present case, and there was doubt as to the guilt of the accused, and as, the doubt was not unreasonable in the circumstances of the case, the accused was entitled to the benefit of doubt and ultimately acquitted him of the two-offences under Section 193, Indian Penal Code.