EMPEROR Vs. JIVRAM DANKARJI

JUDGEMENT

(1.) This is an appeal from a conviction and sentence passed by the learned Additional Sessions Judge of Ahmedabad. The appellant has been convicted under Section 471 of the Indian-Penal Code of using as genuine a forged document. He was previously tried before the Court of Session in Ahmedabad under Sections 467 and 109, that is to say, on a charge of abetment of forgery in relation to the same document, Exh. 4, in respect of which he is now charged under Section 471, and on the charges under Sections 467 and 109 the appellant was acquitted by the Court of Session.

(2.) The first point taken in the appellant s favour is that this previous acquittal was a bar to the present trial under Section 403 of the Criminal Procedure Code. The contention is that the appellant s case falls under the first sub-section of Section 403. That sub-section provides that a person once acquitted shall not be liable to be tried again on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237. Now, Sections 236 and 237 contemplate the case where it is doubtful, upon the facts, which can be proved, which of several offences will be constituted by those facts. In illustration (a) is put the case where a person is accused of an act which, upon the facts provable, may amount to theft, or to receiving stolen property, or to criminal breach of trust, or to cheating Section 237 merely carries on the procedure applicable to cases provided for by Section 236. It appears to me that the facts of the present appeal are wholly outside the scope of Section 236. For, upon the facts which were capable of proof at the earlier trial, it could never, at any moment, have formed the subject of doubt what the particular offence was which could be established against the prisoner. The only facts appearing in proof at that trial were facts which went to establish the abetment of forgery : that offence, and no other, was the offence constituted by the facts then capable of proof. In the present prosecution, upon certain added facts, the evidence led goes to show that the prisoner committed the offence of dishonestly using a forged document, knowing that it was forged, and there cm be no doubt but that if this evidence is believed, that is the particular offence constituted by the facts which can now be proved. We have not, therefore, before us such a case as Section 236 contemplates, that is to say, a case where, upon the facts proved, it was doubtful what should be the true view of the offence constituted. It follows that the case is not governed by Sub-section (1) of Section 403.

(3.) In my opinion the case falls under Section 235, Sub-section (1) of the Code, and if that is so, then admittedly under Sub-section (2) of Section 403 the accused s plea is unsustainable by virtue of the provisions of Sub-section (2) of Section 403. The series of acts beginning with the forgery and ending with the user of the forged document in the civil Court to support the civil claim must, I think, be regarded as so connected together as to form the same transaction, or carrying through of a single predetermined plan, so that under Section 235(1) it would have been competent to try the accused for both offences at the same trial. And I have no doubt that these two offences would be distinct offences within the meaning of Section 403(2), and not merely separable offences, as that term is explained in Section 35 of the Code.