QUTUBUDDIN Vs. EMPEROR

JUDGEMENT

(1.) Criminal Revision No. 241 of 1936 in which the petitioner is one Qutubuddin and Criminal Revision No. 245 in which the petitioner is one Aziz Khan arise out of the same judgment and have been heard together. Qutubuddin was convicted under Section 205, I.P.C., and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 100, in default to suffer six months further rigorous imprisonment. Aziz Khan was convicted under Secs.199 and 205/114 and sentenced to one year's rigorous imprisonment and to pay a fine of Rs. 50, in default, to three months further rigorous imprisonment under each of the two sections, the sentences to run consecutively. There was a third man, Ejaz, who was found not guilty and has been acquitted by the trial Court. On appeal the learned Sessions Judge has reduced the sentence passed on Qutubuddin to six months rigorous imprisonment and to a fine of Rs. 50, in default, to further rigorous-imprisonment for three months. The prosecution case has been very ably summarised by the lower appellate Court and no exception has been taken to the statement of the facts made by the Court below. It appears that one Mt. Bibi Soghra instituted a rent suit in the Munsif's Court at Bihar against some tenants making one Muhammad Husain alias Muhammad Husi a pro forma defendant. Muhammad Husi subsequently transferred himself to the category of the plaintiff on 28 September 1933. On 30 October 1933, a joint consent decree was passed in favour of Mt. Bibi Soghra and Muhammad Husi against the tenants showing the amount payable to each of them separately besides costs. On 20th April 1934, Bibi Soghra applied for execution of her share in the decree and prayed for the issue of a notice under Section 158-B, Ben. Ten. Act, upon Muhammad Husain, the co-sharer landlord. The notice purports to have been served at Muhammad Husain's permanent residence at Desna on 29 April 1934, not personally but on the petitioner Qutubuddin who received the notice as a servant of Muhammad Husain and signed an acknowledgment on its back on the identification of the other petitioner Aziz Khan who is a servant of Bibi Soghra.

(2.) The case for the prosecution is that Qutubuddin was really a servant of Bibi Soghra and not a servant of Muhammad Husain and in pursuance of a conspiracy the servants of Bibi Soghra got the service effected at Desna on 29 April 1934, on the false allegation that Qutubuddin was a servant of Muhammad Husain alias Muhammad Husi. It appears further that in support of this service an affidavit was sworn by petitioner Aziz Khan on 2 May, 1934, which was filed in Court on 10th May 1934. The 18 June 1934 was fixed for the sale of the judgment-debtor's holding. On 12 June 1934, i.e., about six days before the date fixed for the sale, Muhammad Husi, it is said, accidentally heard from one Nanhku Mahto about this matter and two days later he filed a petition for execution of his share in the decree so that he might not be prevented from realising his dues out of the holding in question. On 15 June 1934, Muhammad Husain filed a petition under Section 476, Criminal P.C. before the Munsif of Bihar praying that Ejaz Husain (the decree-holder's pleader's clerk) and the serving peon might be prosecuted because they had acted in concert and abetment. The Munsif after the preliminary inquiry filed a complaint against Ejaz Husain, Qutubuddin and Aziz Khan under various sections and they were tried with the result stated already. The charge against petitioner Qutubuddin under Section 205 ran as follows: That you on or about 29 April 1934, at Desna, falsely personated himself (yourself) as a servant of Muhammad Husain before Jagarnath, a civil Court process server, and in such assumed character caused a notice under Section 158-B, Ben. Ten. Act, to be served on Muhammad Husain by writing "apne malik ka nam ki notice paia" on the notice and thereby committed an offence punishable under Section 205, I.P.C.

(3.) Aziz Khan was charged under Secs.205/114, I.P.C. for having abetted Qutubuddin, and was further charged as follows under Section 199: That you on or about 2 May, 1934, at Bihar in a declaration made by you before the Oath Commissioner made a false statement which you knew to be false touching a point material to the object for which the declaration was made, to wit, that the notice under Section 158-B, Ben. Ten. Act, had been served on Qutubuddin, a servant of Muhammad Husain, and which declaration was by law receivable as evidence and thereby committed an offence punishable under Section 199, I.P.C.