ADIKANDA SWAIN Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been convicted under Section 465/471, Indian Penal Code, and Section 199, Indian Penal Code, and his sentences as reduced on appeal are a fine of Rs. 100 or in default two months rigorous imprisonment under the former section and six months rigorous imprisonment and a fine of Rs. 100 or in default one month's rigorous imprisonment under the latter. The petitioner brought a suit on a mortgage executed by one Bharat Jena for a principal sum of Rs. 200 in favour of the petitioner's father who died before the suit. Bharat Jena pleaded satisfaction by payment of Rs. 30 direct and Rs. 220 by money orders. The petitioner's case was that the remittances by money order were for satisfaction of another debt on a handnote and to support his case the petitioner produced a receipt which is the document in respect of which he has now been convicted. He alleged that this document bore the thumb impression of Bharat Jena and it is the prosecution case that this document was forged. The petitioner swore an affidavit that it was executed by Bharat Jena in his presence and it is for this affidavit that the petitioner was convicted under Section 199, Indian Penal Code.

(2.) It is now admitted that the disputed receipt does not in fact bear the thumb impression of Bharat Jena and the case put forward by the petitioner at the trial was that there was another debtor of the petitioner's father named Punananda Naik and that these two persons were making payments on the same day and receipts were written for both of them by the same writer at the same time but by mistake the thumb impressions were taken on the wrong receipts. Thus the thumb impression of Bharat Jena was taken on Punananda's receipt and vice versa. Punananda is dead and his document was called from his widow. This document (Ex. F) has been proved to bear the thumb impression of Bharat Jena. The lower Courts, however, have disbelieved the defence story and have convicted the petitioner as stated above. Now there is one apparent error in the judgment of the learned Sessions Judge. He states correctly that Ex. 4, the disputed receipt, and Ex. F, the defence document, are both of the year 1932 and that they have stamps affixed to them; but he went on to say that these stamps were sent to the supervisor, Security Press, Nasik who had reported that such stamps were first introduced for sale to the public in 1934. This statement is not accurate. It Ex. 3 correct so far as Ex. 4 is concerned but is not correct so far as Ex. F is concerned. The two stamps thereon are of different types; that on Ex. 4 bears at the top the words "India Postage" while that on Ex. F bears the words "India Postage and Revenue."

(3.) As the learned Sessions Judge has been under a misapprehension regarding this part of the evidence, I have looked into the evidence myself in this case and I have found another reason for so doing, namely, that it appears to me that both the learned Magistrate, who tried the case, and the learned Sessions Judge on appeal have expressed themselves in their judgment at certain stages as if the failure of the accused to establish h4is story regarding the document must inevitably lead to his conviction. Now this is incorrect. It was for the prosecution not merely to prove that the document (Ex. 4) was not executed by Bharat Jena and that the statement in the affidavit of the petitioner to the contrary was false. In order to convict the petitioner for dishonestly or fraudulently using a forged document the prosecution had to prove beyond reasonable doubt that the accused knew that the document was forged and in order to convict him under Section 199, Indian Penal Code, the prosecution had to prove that he either knew or believed his statement to be false or that he did not believe it to be true. Now, if there was a reasonable possibility that the defence story was true, then these essential ingredients of the prosecution case would not be established.