JABBAR ALI Vs. EMPEROR

JUDGEMENT

(1.) In this case the two appellants have been convicted unanimously by a jury, appellant 1 having been convicted under Section 471, I.P.C., that is, of an offence of dishonestly and fraudulently using a document which he knows to be a forged document. Appellant 2 has been convicted of abetment of that offence. The first has been sentenced to four years rigorous imprisonment and the second to 2 1/2 years It appears that there was a third accused who had been acquitted and that a rent suit had been brought against accused 2 and this accused 3 in the Court of the Second Munsif at Comilla Accused 1 by some procedure which I am not familiar with, was a witness in that case and in advance of that trial he filed a kabuliat which has been found to be a forged document. It is a document which purports to show that the defendant did not hold under the plaintiff but under somebody else. The plaint was returned for presentation before another Munsif as it was a Small Cause Court case and, therefore, it was sent to the 7 Munsif who tried the suit and dismissed it. At the trial the kabuliat was not used in evidence. Some time later on the application of the unsuccessful plaintiff the Second Munsif before whom the document had been filed made a complaint under Section 476 against these two appellants and the third accused who has been acquitted.

(2.) In this appeal various points have been taken by way of objection to the conviction. First of all, it is said that although there is an appeal against every order made under Section 476 which results in a complaint it is open to the person complained against not to exercise his right of appeal at all and to argue before a Magistrate or a Sessions Judge whether the complaint is a good complaint or made by a proper officer or so forth. In my opinion this contention cannot be too formally rejected. What the Criminal Procedure Code requires is that certain proceedings shall not be instituted unless there is a complaint. Whether there is a complaint or there is no complaint in my judgment is a question which can only be agitated in the manner provided.

(3.) The second question is whether this document as it was not given in evidence can be said to have been used by appellant 1 at all. It is said that it was filed as a document in the list of documents filed by this accused. Reliance has been placed on the case of Ambica Prosad Singh V/s. Emperor [1908] 35 Cal. 820. We find, however, another case in Emperor V/s. Bansi Sheikh in which that case has been disapproved of as regards certain particulars. It is pointed out there that if a person puts forward a document as supporting his claim in any matter, whether that document is acted upon by the Court or used in evidence is immaterial for the purpose of constituting use of the document by the party within the meaning of Section 471, I.P.C. In this ease the matter rests wholly on this that from some interest in or desire to assist the defence the accused filed a document for the purposes of the suit in advance of a trial. That in my judgment is using a document. The wider the definition of the word "use" the better as the use has to be fraudulent.