Aparti Charan Ray vs Emperor

Ross, J.—The petitioner has been convicted under S. 471, I.P.C., and has been sentenced to one year''s rigorous imprisonment by the Sub-Divisional Magistrate of Bhadrak. The subject of the charge was the signing of a plaint in a suit for rent presented in the Collector''s Court. The petitioner is the husband of the plaintiff in that suit and he signed the plaint in these terms :

This signature by Kankan mark and left thumb impression are of Srimaty Kshetramani Dei by the pen of Aparti Chandra Ray.

There was a thumb impression which has been proved to be the thumb impression of some one other than Kshetramani Dei. It may be mentioned that the Deputy Collector before whom the plaint was filed refused to prosecute, the complaint being made by the appellate Court.

The learned Sessions Judge in dealing with this case was influenced largely, if not mainly, by the consideration that the plaint was filed on the last date after which it would be barred, as to the claim for one year''s rent, by limitation. Now O. 6, R. 14, Civil P. C. requires that "every pleading shall be signed by the party and his pleader," but it is well settled that if a plaint is not signed, it may be amended at any stage and the fact that it is not signed does not any less make it the plaint of the plaintiff: see Mohini Mohun Das v. Bungsi Buddan Saha Das [1890] 17 Cal. 580 (P. C.) a decision of the Judicial Committee, and Basdeo v. John Smidt [1899] 22 All. 55 = (1899) A. W. N. 172. Consequently if the plaint had been left unsigned, this was only a defect in procedure which was curable. There was a similar case dealt with in this Court, Ramsarup v. Emperor [1918] 19 Cri. L. J. 236 = 43 I. C. 828. There the signature of the plaintiff purported to be in the plaintiff''s hand but in fact was put there by his gomastha; it was held that as there was no intention to defraud there was no forgery. The learned Sessions Judge has distinguished this case on the ground that if the plaint had not been filed on the day on which it was filed then the defendant would have had the advantage of the law of limitation; but that will not make the act of the petitioner fraudulent. In Reg v. Bhavanishankar 11 B. H. C. R. 3. this very question arose where a plaint was signed by the agent in the name of the plaintiff in order that it might be filed before the mamlatdar, whereas if it had not been filed on that day it would have had to be filed in the civil Court, and thus court fee was saved. It was suggested that there was an intention to deceive the Government just as it was argued by the learned Government Pleader that there was in this case an intention to defraud the Court, but that contention was overruled. The learned Judges referred to a. decision of Cresswell, J., where it was observed that

In order to constitute in point of law an intent to defraud, there must be a possibility of some person being defrauded by the forgery, or there must be a possibility of some person being not only deceived but injured by the forgery.

Now, here I cannot say that there was any possibility of anyone being injured. The defendant was liable for the. rent and no damage was caused to him. Even if the plaint had been unsigned he would still have been liable; and the fact that the signature was added in this incorrect form does not establish any dishonest or fraudulent intent. There was no fraud on the plaintiff because the plaint was filed in her interest and as she says in her evidence under her authority. She is quite clear on this point that she had given a general permission to her husband to file papers in Court on her behalf and had given him authority to sign on her behalf and file papers in Court. I am therefore unable to find any fraud in this matter. Undoubtedly the act of the petitioner was stupid and improper but the necessary criminal intention to constitute the crime of forgery is, on the facts of the case, wanting.

I would there fore allow this application and sot aside the conviction and direct that the petitioner be acquitted and released from bail.

Scroope, J.

I agree.