GOPALDAS KHETRIYA Vs. JNANENDRA NATH DAWN

JUDGEMENT

(1.) I should have delivered judgment in this matter before but for the intervention of other urgent work. This is an application under Section 476, Criminal P.C., read with Section 195 of the same Code. In other words the applicant asks me to direct a criminal inquiry against the respondent for the two offences under 8. 193 of the Indian Penal Code for giving false evidence and fabricating written evidence. The position is as follows : (a) As against Dawn : False Evidence; (b) As against Dey Fabricating Documents; (c) Against Dawn and Dey : For abetting the fabrication. That is the position of the contemplated charges. The facts are as follows : In 1916 Dawn's father-in-law, Bhuban Dutt, mortgaged to him certain property in the mofussil. In or about 1922 the present applicant Khetriya leased the premises, 4 Armenian Street to Dawn at a rent of about Rs. 325 a month. In the beginning of 1928 there was an account of the Dey's money-lending, money lent to the Deys in Kamala's name, that is the wife of Dawn. There were certain promissory notes or a promissory note again by the Deys in the name of the wife, Dawn's wife. In 1933 Dawn adopted a son Jaladbaran. In August 1933 Kamala died. In 1930 the rent of the premises, which I have mentioned, fell into arrears, and on 31st January 1933 this suit was filed for arrears of rent amounting to Rs. 8000. In the previous year on 23 September 1932 there is a letter to which I shall have to refer, from a pleader, Haldar, purporting to act on instructions of Dawn demanding Rs. 19,000 for principal and interest on account of Bhuban Dutt's mortgage. On 8 July 1934 there is an entry in the Dey's book purporting to show repayment of the sum of Rs. 5700 on their borrowing account, and on 15 July another entry of repayment of the balance of Rs. 43-12-0. On 23 July 1934 according to a statement of Dawn and Dutt three fresh promissory notes for smaller sums of Rs. 3000, Rs. 2000 and Rs. 700 aggregating to Rs. 5700 were made by the Deys in favour of Jaladbaran. On 17 December 1934 there was an order for the examination under the provisions of Order 21, Rule 41 of the Dawn, Dutt and Deys. The examination was fixed for 22 February, 1935. On 26 March Dawn complained of the theft of the three new promissory notes. On 30 May 1935 Jaladbaran brought a suit against the Deys being Suit No. 837/35. There was a summons under Ch. 13-A for final judgment. The Deys pleaded payment, and in answer to this plea Dutt filed an affidavit on 12 June 1935. Jnanendra Dawn filed an affidavit on 30 June 1935. The material paragraphs are paras. 10 of Dutt's affidavit and so of Dawn s. The one I have in my hand is Haren Dutt s. So far as material it reads as follows and it is of primary importance in dealing with this matter: Gopal Das Khetriya (that is the plaintiff in the suit) one of the creditors of the firm of Madhob Chandra Das was about to attach the moneys in the hands of K. O. Das & Sons when the defendants Sailendra Nath De and Haricharan De suggested that a flctitious entry will be made on a back date showing that the moneys hare been paid back to me which stand in the name of Jaladbaran, as they were advised that this course would save them from unnecessary costs and harassment.

(2.) It is then alleged that the fictitious entry was made for this purpose. On 9 September 1934 and thereafter the examination of the Dawns and the Days took place. By March 1937 the examination had finished. There was some delay "by reason of various questions of report by the officer. Notice of this application was taken out on 15 November 1937. It is one of these applications which has taken time having regard to the number of counsel engaged. On 9 November 1937 Dawn made an affidavit on this application of which para. 17 is material. This seeks to make out that the entry to which I have referred was not for the purpose specified in the previous affidavit but made somehow in the ordinary course of business and for the purpose of convenience. Those are all the facts I propose to state. I now deal with the complaint desired to be preferred against Jnanendra Dawn for giving false evidence. It falls into three categories. First, what I may call self-contradiction, an auto-contradiction, where he has contradicted himself, in the evidence e.g. no mortgage, mortgage; no loan to Deys, loan to Deys. The second category-statement persisted in but contradicted by other circumstances, or other facts excluding a possibility of truth, e.g. as is contended by the applicant, repayment of the mortgage contradicted by the letter of demand sent through Haldar. The third category is one for which I am afraid "I was responsible in the course of the argument : mutually exclusive statement in the alternative, e. g. statement in the ?1935 affidavit, that the false entry was made as protection against the attaching creditor contrasted with his evidence, that the entry was not made at Day's suggestion and was in the ordinary course of business. I will deal with these three classes as shortly as I can.

(3.) I will deal first with what is called in the argument and has been referred to in the authorities as mere contradiction," and what I have called auto-contradiction." I was referred to Keramat Ali V/s. Emperor , also I think, the decision of the late Syed <JGN>Ameer Ali</JGN> J. in In Re: Munni Buksh (1898) 3 CWN 81. Speaking for myself, I do not entirely agree with the view, if that is the view, laid down in Keramat Ali V/s. Emperor that every witness should be allowed one lie and one contradiction, that every witness should be allowed to say one thing and then another and then say it is "a mere contradiction," I cannot be convicted of perjury. I agree that every allowance should be made for forgetfulness and for confusion, but I think that even in a proper case the Court should take action. Mr. Chatterjee in dealing with this point and with others asked me to consider the "traditions" of this Court, "the tradition of British Justice." I will refer to this aspect of the argument again. The next class is what I may call contradicted statements. The principal matter is the letter of the pleader of 1932. This letter was not put to Dawn in examination and was not shown to him. It is set out in the affidavit in reply. I consider this to be unfortunate.