KEDAR NATH Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by one Lala Kedar Nath, who has been convicted by the learned Additional Sessions Judge of Cawnpore, at Banda, of an offence under Section 471, Indian Penal Code, and has been sentenced to undergo six months R.I. and to pay a fine of Rs. 500. The charge against the appellant arose in the following circumstances: On 30 May 1934, the appellant filed a suit against one Ram Nath for recovery of a certain amount on the basis of a pro-note. The pro-note in question and the receipt were however not filed along with the plaint, and it was stated that they would be produced on the next date of hearing. The pro-note in question was alleged to have been executed on 31 May 1931, so that the suit was just within time. The next date of hearing in the case was 30 July 1934. On that date a written statement was filed on behalf of the defendant, in which it was definitely alleged that the plaintiff had probably committed some forgery in the pro-note and the receipt in his possession as they had become time- barred. After that written statement was put in, the defendant's counsel applied to the Court to compel the production of the pro-note and the receipt. The Court accordingly ordered the production of those documents. Instead of producing the documents, as ordered by the Court, the appellant made an application in which he said that he had not brought the documents and had not summoned any witnesses. On this ground he wanted the case to-be adjourned. The Court rejected his- prayer and insisted on proceeding with the trial of the suit. The plaintiff was asked to bring the documents in question, and in the meantime the Court took up another case. After sometime the trial of the suit was resumed, and there are two different stories as to what happened thereafter. The appellant's case is that, as soon as the trial was resumed, he made a statement to the Court in which he proposed to- abide by the oath of the defendant on the question as to whether he had borrowed any money on 31 May 1931, as alleged by the appellant. The defendant agreed and taking the proposed oath made a statement that he had not borrowed any money from the appellant on that date. Now it is definitely alleged on behalf of the defence that, even after the defendant's statement had been recorded, the Court insisted on the production of the pro-note and the receipt on which the suit was based.

(2.) In compliance with that order the appellant produced the receipt, but not the pro-note, which he did not have in his possession at the time. The prosecution case, on the other hand, is that after the resumption of the trial the appellant produced the receipt which was examined by the Court and was found to have been tampered with. It was then handed over to the defendant's counsel, who also expressed his, opinion to the effect that the document was suspicious. It is an admitted fact that the date on this receipt had been-altered from "21 May 1931" to "31 May 1931." The prosecution case is that, when the plaintiff realized that the receipt produced by him was considered to be a suspicious document by the Court, he tried to make the be sit of a bad bargain by making the proposal to abide by the defendant's oath. After dismissing the suit on the statement made by the defendant, the Court issued a notice to the appellant to show cause why he should not be prosecuted for an offence under Section 471, Indian Penal Code. The matter was pursued in an enquiry under Section 478, Criminal P.C., and the learned Munsif himself committed the appellant to the Court of Session to stand his trial on a charge under Section 471, Indian Penal Code. He has now been convicted on that charge and sentenced as mentioned above. Hence this appeal.

(3.) The main point urged on behalf of the appellant by the learned Counsel who has appeared on his behalf in this Court is that the decision of the case really turns on the question as to whether the receipt in question, which is admittedly a forged document, was voluntarilly produced by the appellant prior to his leaving the suit to be decided on the defendant's oath. It is argued that if the answer to that question is in the negative, then the appellant's conviction cannot possibly stand, because if the receipt was produced, after the suit had come to an end, in compliance with an order of the Court, there was no voluntary use of the document within the meaning of Section 471, Indian Penal Code. I have no hesitation in holding that the use of a document contemplated by Section 471, must be a voluntary one, and not the mere production of the document in compliance with an order of the Court which must be obeyed. It has further been argued ton behalf of the appellant that, if it is found that the receipt was produced sometime after the suit had come to an end as a result of the defendant taking the proposed oath and denying the loan on which the suit was based, the appellant could not possibly have had a fraudulent and dishonest intention, as required by Section 471, Penal Code. This contention is also obviously sound and must prevail. It is thus clear that the decision of the case turns on the question of fact as to whether the receipt, which is the basis of a charge against the appellant was produced before the appellant left the suit to be decided on the defendant's oath, as alleged by the prosecution, or sometime after that proceeding on the insistence of the Court itself.