EMPEROR Vs. HAR MOHAN DAS

JUDGEMENT

(1.) This is a reference under Section 807, Criminal P.C., by the Assistant Sessions Judge of Assam Valley Districts, disagreeing with the verdict of the majority of the jury. The accused Har Mohan Das was charged with an offence under Section 471, I.P.C., read with Section 467, I.P.C. He was charged with having fraudulently and dishonestly used as genuine a document, namely, a receipt for Rs. 530 bearing date the 2nd Baisak 1330 B.S. (15 April 1923), purporting to have been executed by Baliram, which he knew or had reason to believe to be a forged document. The accused was originally tried before a Subdivisions! Magistrate and was convicted. That conviction was ultimately set aside by the High Court as it thought that it was a case triable by a Court of Session. The accused consequently was tried by the Assistant Sessions Judge with the aid of a jury. Pour of them are of opinion that he is not guilty while one of them says that he is guilty under Secs.476/471 I.P.C.

(2.) The case for the prosecution is that Baliram who was not living at the time of the trial, having died after he had deposed before the committing Magistrate, filed a civil suit against the accused. That suit was dismissed by the Munsif. The Munsif's decision was reversed on appeal and Baliram's suit was decreed and ultimately that decree was upheld by the High Court. Baliram after the final-decree applied for execution of the decree on the 21 July 1922. Notice of the execution proceeding was served on the accused but he did not appear to show cause. The execution case was struck off on the 19 August 1922. On the 19bh September 1922 the decree-holder Baliram again applied for execution. That execution case was again stuck off on the 25 November 1922. The decree-holder Baliram again applied on the 10th February 1923, for the arrest of the judgment-debtor - that is, the accused. This case was stuck off on the 4 June 1923. On the 11 June 1923 the fourth execution case was filed. In this execution case the accused was arrested and he was produced before the Munsif on the 1 July 1923. It is to be noticed that neither at the time of the arrest nor when he was produced before the Munsif did the accused say anything about any payment having been made in satisfaction of the decree nor did he mention anything about the receipt marked as Ex. 5 in this case. But on the 2 July, the accused filed a petition before the Munsif stating that he had paid a sum of Rs. 530 to the decree-holder for which he held a receipt. Even in that petition he did not state on which date the payment was made and what date the receipt bore. The receipt (Ex. 5) which bears date, as already stated, the second Baisak, 1330 (15th April 1923), was produced in Court for the first time on the 7 July.

(3.) The decree-holder denied before the Munsif having received any payment as evidenced by the receipt and contended that the receipt was forged. The Munsif, after holding an enquiry, started the present prosecution. Now it appears clear that if the payment had been made as is now contended for by the accused, on the 15 April 1923 it seems somewhat singular that he did not apply to the Munsif to certify the payment. He had under the Civil Procedure Code 90 days to apply for certification by the Court and although on the 1 or 2 July, there remained only a few days for the 90 days to expire he took no steps whatever to have this payment certified. This is a circumstance which tells very strongly against the case of the accused that the payment had been made on the 15 April 1923. It is also a singular feature of the case that he did not mention the fact of this payment when he was taken under arrest to the house of the Munsif. The Munsif has deposed in this case and he clearly stated that the accused did not mention the fact of payment to him. One would have expected that when he was taken under arrest before the Munsif the attitude of the accused should have been one of severe indignation and he would have at once stated to the Munsif that he had been unjustly brought before him under arrest, as the money had already been paid. The fact that this was not mentioned to the Munsif is also a very strong circumstance against the story of the accused that the payment had been made.