RAM PROSAD MALLA Vs. RAGHUBAR MALLA

JUDGEMENT

(1.) This is a rule calling upon the District Magistrate of the 24-Pergunnahs to show cause why an order of the District Judge, dated the 16 March last, directing the prosecution under Section 209 of the I.P.C. of the petitioner, Ram Proshad Mallah, should not be set aside. The facts, out of which the case has arisen, are these.

(2.) In June 1904, the petitioner, a resident of Budge Budge, brought a suit for the recovery of Rs. 45, alleged to be due for principal and interest on account of a loan made in January 1902, to one Raghubar Mallah, who was described in the plaint as then residing also at Budge Budge. Summons was issued in due course, and, according to the process-server's report and the petitioner's own affidavit of the 18 July 1904, it was, on the absence of Raghubar Mallah himself, affixed to the outer door of his ordinary "dwelling-house" at Budge Budge, as pointed out by the petitioner himself. On the following day the case was heard ex parte by the Munsif of Alipur sitting in the Small Cause Court, and was decreed after a cursory examination on oath of the petitioner.

(3.) The first application for execution was made oh the 17 September 1904, and this was apparently struck off for want of prosecution on the 9 January, 1905. A second application is dated the 6 December, 1905, and on it a certificate under Section 224 of the Civil Procedure Code of 1882, seems to have been sent to Raghubar Mallah's native District Azamgarh in the U.P. but returned unserved. A third attempt to execute the decree was made in the latter part of 1907, with better effect; for the notice required by Section 248 of the Code of 1882, was duly served upon the judgment-debtor, Raghubar Mallah, in Azamgarh, with the result that he appeared in the Small Cause Court at Alipur, and applied on the 21 March 1908, to have the ex parte decree against him set aside and the suit re-heard. What purports to be his application was first submitted to the Court in the U.P., and is in the Persian character. It is not in the form of, or supported by an affidavit; but, for the purposes of this proceeding and in view of the fact that he was assisted in making it by the District Magistrate through the Government Pleader, there is clearly no reason why it should not be referred to. It declared categorically that Raghubar Mallah had not received any summons, that he had never been in Calcutta before, that he had never borrowed any money from the petitioner, that the petitioner's suit was false and had been brought maliciously, and that the first that he (Raghubar Mallah) had heard of it was after the transfer of the decree for execution to Azamgarh Raghubar Mallah was, moreover, examined on oath by the Small Cause Court Judge on the 18 July 1908, and he then swore that he had never been to Budge Budge, that there had been no service on him, and that he had first come to know of the existence of the ex parte decree on the preceding month of March. Much stress has been laid on the fact that his deposition stops short here and contains no express denial of the debt, the learned Vakil for the petitioner, arguing that, whereas his client has sworn to the truth of his case against Raghubar Mallah, there is so far on record no assertion on oath to the contrary by Raghubar Mallah, and that consequently there is no sure foundation for the prosecution of his client for the offence under Section 209 of the I.P.C. of making a false claim in Court. The argument is ingenious, but it is nothing more; and it would be ridiculous to allow it to prevail. The sworn statement of Raghubar Mallah in examination-in-chief was naturally confined to the only point that had, for the purposes of Section 108 of the former Criminal P. C., to be established; it might have been, but was not, extended beyond that point in the cross- examination to which Raghubar Mallah was actually subjected; as it stands, apart even from the petition already referred to, the inference to be drawn from it and from the circumstances is that Raghubar Mallah intended to deny every thing. It may, moreover, be taken for granted that the District Magistrate has not tried to launch this prosecution without making sure that that person is prepared to be a witness, and there is at this stage at all events no need for entertaining a doubt on the point.