Amiri Singh and Another vs Emperor

Rowland, J.—The two petitioners who are brothers were judgment-debtors against whom the complainant Har Sahai held an instalment decree for money. He attached 28.90 acres of their land. The petitioners on 30th September 1932 executed a sale deed conveying to Hari Sahai 6.70 acres on a consideration of Rs. 3,91.6, the document containing a recital that Har Sahai had consented to accept this area of land on the above consideration in satisfaction of his decree.

The petitioners presented it for registration at Monghyr on 1st. October 1932, and it was registered. The complainant Har Sahai instituted this complaint on 22nd October 1932, the Dasahara holidays having intervened. The Magistrate and the Sessions Judge have concurred in finding that there was no such consent or agreement by Har Sahai to the above consideration or sale. Mr. Varma appearing for the petitioners has not been able to show that these findings are without foundation. He criticised the reasoning of the Courts below that the price, about Rs. 500 per bigha, was exorbitant and it was unlikely that Har Sahai should have consented to take this land at such a price. He pointed to Ex. G a document not of the year 1930 as stated in the learned Sessions Judge''s judgment but of 1st October 1932 in which the price works out at about Rs. 450 per bigha.

This document was, as the Sessions Judge points out, a special transaction in which a mortgage debtor sold the whole of his immovable property to his creditor in order to clear his debt. It is likely that in such a case the creditor would to all intents and purposes write off some of his debt as irrecoverable. The difference between that case and the kobala of the petitioners is that the petitioners had still about 30 bighas more available for the satisfaction of the debt of Har Sahai.

It is pointed out for the respondent that neither to Har Sahai nor to any of the prosecution witnesses was it put in cross-examination that this transaction of sale had been consented to at a particular place and at a particular time by Har Sahai If there had been any such consent it must have been within the knowledge of the accused and it was for them to disclose particulars of the case they proposed to set up.

Four defence witnesses were examined, but not one of them attempts to prove any consent by Har Sahai. Their evidence is directed to proving . that the price entered in the kobala was not so very exorbitant. I have no doubt, therefore, that the Courts below were fully justified in holding that this kobala was executed with false recital as to the consent of Har Sahai to take the land at a stated price and that this was done fraudulently with the intention of supporting at a later stage a case of satisfaction of the complainant''s money decree.

That is enough to bring the act of the accused within the mischief of Section 423. In a similar case Legal Remembrancer v. Ahi Lal Mandal AIR 1921 Cal 226 it was held that fabrication of such a document was an offence both u/s 193 and u/s 423, I.P.C. In that case the statements in the document relating to the consideration for the transfer were false; the same is the case here. The conviction must therefore be upheld. Finally returning to the question of sentence I find that in the Calcutta case just cited, the accused were sentenced by the High Court to nine months rigorous imprisonment each. In the present case the sentences of six months'' and fine of Rs. 50 each do not seem to me improper. The application is dismissed.