ABDUL RAHIM KHAN MOHAMMAD MANWARKHAN Vs. EMPEROR

JUDGEMENT

(1.) THE appellant is an advocate who is a practitioner of some standing at Balaghat, Criminal proceedings were started against him and two others on the-complaint made by the Subordinate Judge, First Class, Balaghat, alleging offences-under Sections 193, 465 and 471, I.P.C, read with Sections 35 and 109, I.P.C. The Tahsildar who is also a Magistrate First Class enquired into the complaint and framed charges against all the accused persons including the applicant. The charges framed against the applicant were two, viz., (1) that he abetted forgery of a receipt, dated 1st November 1935; and (2) that he filed the receipt fraudulently with the knowledge that it was forged. As the case was one triable by the Court of Session, it was transferred by the District Magistrate for trial to another Magistrate exercising powers under Section 30, Criminal P.C. The applicant moved the District Magistrate for recommending his case to the High Court for quashing the charges against him but was unsuccessful. He has now applied to this Court for exercise of its powers of revision under Section 439, Criminal P.C, and quash the proceedings on the ground that the evidence does not warrant the formulation of any charge against him. No appearance was entered on behalf of the Crown. As pointed out in Emperor v. Krishna Rao (1924) 11 AIR Nag 47, the High Court can interfere in revision with a pending proceeding where a criminal charge is unsustainable on the evidence of the prosecution witnesses. It is the duty of the High Court to interfere when the facts proved do not constitute an offence and the continuance of the trial would be an abuse of the process of the Court: see Harendra Nath v. Jyotish Chandra (1925) 12 AIR Cal 100; see also Ramanathan Chettiar v. Sivarama Subramania Ayyar (1925) 12 AIR Mad 39 and In re Shripad Chandavarkar (1928) 15 AIR Bom 184. The issue will be clear from the narrative of faots given below.

(2.) HIMIA Bai, Jakhan Bai and Bhola filed Civil Suit No. 44 of 1930 against Pusia Bai, Tijia Bai and Thangan Bai for possession of two villages. Bhola, under an agreement with Himia Bai and Jakhan Bai, had undertaken to finance the litigation and bear the expenses himself. The suit failed in all the Courts and the plaintiffs were saddled with costs of Rs. 200. Bholaram applied on 4th September 1935 to the executing Court stating that he was willing to deposit Rs. 50 which he actually did ON 5th September 1935 and prayed for four months time to pay the balance of Rs. 150. The applicant countersigned this application as "pleader for plaintiff 3 judgment-debtor, i.e. Bhola alone." That application. was dismissed on 24th October 1935. On 30th September 1935, the decree-holders (defendants, viz., Pusia Bai and others) filed an application for execution and on 25th October 1935 a warrant was issued against Bhola alone for attachment of his moveables. On 1st November 1935, the applicant filed an application in the executing Court stating that-the decree had been adjusted between Pusia Bai and others (decree-holders) and Himia Bai and Jakhan Bai and filed a receipt purporting to bear the signature of Mt. Pusia Bai. It was filed between 3 and 4 p. M. and order was obtained on the same day recalling the warrant issued. In that adjustment Bhola against;. whom the warrant had actually been issued was not shown to have any part but the application purported to have been made, on behalf of all the three judgment-debtors.

(3.) THE cardinal point is whether the applicant had knowledge of the forged character of the receipt. On this point there is no affirmative evidence whatever. In his order, the District Magistrate seeks to infer his knowledge from these circumstances, viz.: (1) that Ibrahim Khan was neither the agent of Pusia Bai nor of Himia Bai, Jakhan Bai or Bholaram, (2) that in the absence of instructions from the judgment-debtors, it is unlikely that the applicant would accept the word of Ibrahim Khan without proper inquiry, (3) that the receipt could not be executed without the presence of Pusia Bai at Balaghat and the applicant would have made some inquiry to satisfy himself as to the truth of Ibrahim Khan's representation, (4) that Ibrahim Khan was a man of suspicious character, (5) that the receipt contained the details regarding the identity of the civil suit which Ibrahim Khan could not foresee, and (6) that the applicant had at least the knowledge that it was a suspicious document when he produced it in Court. Notwithstanding the catalogue of incriminating circumstances, the District Magistrate himself is constrain, ed to observe that certain circumstances which render the applicant being concerned in the offences he has been charged with are not free from doubt.