Baju Jha and Another vs Emperor

Courteney-Terrell, C.J.—The appellants Baju and Chinta were put upon their trial together with two others Ramkrishna and Muktinath (who were acquitted) before the Additional Sessions Judge of Bhagalpur on a charge u/s 471, I.P.C. with having fraudulently or dishonestly used as genuine a certain document knowing or having reason to believe at the time they used it that the said document had been forged. They were convicted and sentenced, appellant Baju to rigorous imprisonment for two years and the second appellant Chinta to simple imprisonment for one year.

In order to appreciate the circumstances it is necessary to consider the family of one Bhailal Jha who died some years ago This man left six sons, (1) Bhagwan, (2) Tharu, (3) Mathuri, (4) Nityanand, (5) Panchu and (6) Manbharan. Of these the last three died without issue but Manbharan left a widow. The eldest Bhagwan left a son Chatur who is now dead. The second left a son Ajodhya who is living. The third Mathuri left three sons (a) Nachu, who died in 1915, (b) Baju, the first accused, and (c) Muktinath who was one of the accused acquitted. On 5th January 1911, Nachu with Manbharan''s widow executed a conveyance of certain land to Chatur.

On the same day Chatur executed a mortgage bond in favour of one Palat Singh of the same land together with other plots. Palat subsequently obtained a mortgage decree and purchased the mortgaged land and he got delivery of possession in 1920. On the 18th July 1924 Palat sold all his interest in this land to one Awadhlal Jha who is a mukhtar carrying on his practice at Madhipura.

On 3rd April 1927 Awadhlal sent information to the Sub-Inspector of Police alleging that certain persons had removed the crops growing on the lands he had bought from Palat. Amongst these; persons he charged Baju, Muktinath and Ramkrishna together with the appellant Chinta. They were all charged under Sections 379 and 143 with theft and rioting Chinta is a person closely allied with the other accused but the part alleged against him in this prosecution was that he was in command of and ordering the party who raided Awadhlal''s crops. At the trial, Chinta was separately represented by a pleader and the other accused were defended by a mukhtar named Shib Kumar Jha. The defence put forward on behalf of all the accused was that Baju and Muktinath were really in possession, of the land which Awadhlal Jha alleged to have been raided and they alleged that the title of Awadhlal Jha derived through. Chatur was bad.

Chinta raised the further defence that he had not taken part in the occurrence and had not issued the orders attributed to him. He was in fact ultimately acquitted on this ground, the Magistrate holding that it was unlikely that a man of his relatively advanced age could have played the part alleged by the prosecution. The other accused persons were convicted, the Magistrate holding that their defence on the question of possession entirely failed.

In order to establish the defence on the question of possession the accused persons alleged that the conveyance of. 5th January 1911, by Nachu and Manbharan''s widow to Chatur was a merely, farzi transaction and that the property which it purported to convey remained in the possession of Nachu and had since his death remained in the possession of Baju. To establish this allegation the mukhtar defending Baju put in evidence a deed dated 27th April 1915, by which Chatur executed a sale deed in favour of the two daughters of one Bankey Jha. The execution of this, deed has not been doubted and it recites the mortgage to Palat Singh and the necessity on the part of Chatur to pay off that mortgage and that the object of selling the land (or rather a portion of it, for, only a portion was sold) was to raise funds for this purpose. The consideration was Rs. 100. It appears that the deed was delivered to Bankey Jha. For various reasons, including the fact that he feared dispossession by the holders of earlier incumbrances, Bankey Jha with the consent of Chatur Jha decided to rescind the purchase on behalf of his daughters and returned the deed of sale to the vendor Chatur and on the back of the deed there is an endorsement reciting amongst other things the words of which the following is a translation:

Apprehending dispossession from the said land I return this deed of sale to the vendor Chatur Jha holding possession in the presence of the punches

This endorsement was witnessed by a number of persons including the appellant Chinta Jha who signed with his own pen. Now the deed which was produced had the word "Chatur" altered to "Nachu". There is no doubt whatever that the alteration has in fact been made and indeed both of the appellants admit that it was made and justify the alteration. Chinta has said that it was altered at the time of the execution of the endorsement and it is contended on behalf of the appellant Raju that it was deliberately so altered because the sale of 5th January 1911 to Chatur being a farzi transaction and it being intended that the property should really remain in the hands of the descendants of Mathuri, the third son of Bhailal Jha. Chatur having taken surrender of the sale deed of 27th April 1915 had been as a result of the decision of a panchayet compelled to recognize Nachu''s position as the real proprietor and had acquiesced in the alteration of the endorsement and that the sale-deed had in fact been surrendered to Nachu.

If this contention had been true there would have been some ground for stating that the whole of the dealing with the property by Chatur subsequent to the farzi sale-deed of 5th January 1911, was invalid and that the title of Awadhlal to possession of the property consequently failed. That being so there could be no theft of the crops u/s 379 and no unlawful object to support the charge under 143. Needless to say this defence was quite un sound even if the endorsement with the name "Nachu" had in fact been proved as stated by the defence but such was their object.

In the trial before the Magistrate, however, the deed with its endorsement was put forward as a genuine document and the fact of the alteration having been made only came to light in the course of the proceedings before him and as a consequence he set on foot this prosecution. It has been contended before me that the alteration was honest and that it was not made for the purposes of the case before the Magistrate but had been effected immediately after the execution of the endorsement in 1915. This story is, however, manifestly untrue. In 1916 there were proceedings u/s 144, Criminal P.C. in which the muharir to the witness Awadhlal was the first party and Mathuri Jha (who was then alive) and Baju Jha were the second party and it does not appear that the document was then produced by the second party before the Court as it certainly would have been if the alteration had been made before that date. Had it been so produced in would now bear the seal of the Court before which the proceedings u/s 144 were tried.

Moreover no evidence was offered by the defence to support their story of the alteration. It would have been easy for them to have called evidence of the alleged decision of the panchayet which was said to have decided that the deed'' of sale was in fact returned to Nachu instead of to Chatur. Moreover P.W. 3 to whom I shall presently refer stated in cross-examination that he had asked Chinta about the alteration and that Chinta had stated that the writer of the endorsement made the alteration at the time he wrote it. This was said in the presence of the other appellants who endorsed the statement of Chinta. It would, therefore, have been possible, if Chinta''s statement had been true, to call some of these witnesses to the endorsement to corroborate the story. Such witnesses, however, as were present when the endorsement was made do not support this story and moreover were not cross-examined with a view to establishing its truth. In my opinion it is perfectly clear that the alteration was made with a dishonest intention in order to affect the case before the Magistrate and that it is a forgery.

On behalf of the appellant Chinta two main points have been urged. Firstly it is contended that whatever may be said against his co-appellant Biju, Chinta was not the person who used the forged document in the proceedings before the Magistrate. He was separately represented by a pleader and the document was produced and put in evidence by the mukhtar who defended the other accused. As to this point there are two answers. In the first place there is the evidence of the mukhtar who conducted the defence of Biju and the other accused. He says that he got instructions from Chinta Jha in the presence of Baju and the other accused persons, that he filed the deed under the instructions of Chinta, that having noticed the alteration he asked Chinta about it and that Chinta had made the statement which I have mentioned above. There is the further point that Chinta took advantage together with the other accused of the defence based on the allegation that it was Baju who was in possession of the disputed land.

It is true that he had another and independent defence but he certainly availed himself of this contention. To my mind this was a clear user of the document within the meaning of Section 471, I.P.C.

It was, however, argued that user in a Court of law must mean production of the document and the giving of it in evidence and reliance is placed upon Section 195(c), Criminal P.C. which has the effect of rendering the procedure under that section inapplicable unless the forged document has been produced or given in evidence. It is said that this limits the procedure u/s 195(e) to a limited class of user within the wider class contemplated by Section 471, I.P.C. This view, however, is, in my opinion, unsound. The word "or" which intervenes between the word "produced" and the words given in evidence." shows that it is disjunctive and that the procedure is applicable not only in cases where the document has been given in evidence but also in cases where it has been produced and the ambit of the word "produced" is very wide as was shown in the case of Gulabchand Rupaji v. Emperor AIR 1925 Bom. 467 where it was held that a document presented to the Court as a compromise but rejected on the ground that it was time-barred was nevertheless "produced" within the meaning of this clause of Section 195. It was also held in King-Emperor Vs. Bansi Sheikh, that a document is to be considered as produced if filed in support of a pleading even though not taken into account by the Court.

The last point consisted in the argument that whereas according to Section 471 the user must be fraudulent or dishonest and inasmuch as Section 24 purports to define the word "dishonest" as limited to cases involving the intention of

causing wrongful gain to one person or wrongful loss to another parson

and inasmuch as the word "fraudulent" should be read as synonymous or ejusdem generis with the word "dishonest" that Section 471 only contemplates user for the purpose of producing material gain or material loss to another and that it cannot apply to user for the purpose of securing an acquittal. In my opinion such a construction would have the effect of rendering the section inapplicable to any case where a forged document was relied on by the defence to prove that the criminal offence charged was not committed and it is quite unsound. Moreover the case of Emperor v. Mohit Kumar Mukerjee AIR 1926 Cal. 89 shows that the words "fraudulently" and "dishoneshtly" have no such limited meaning. Indeed this case distinctly decides that neither the acquisition nor the deprivation of property is essential ingredient of the intent in an offence u/s 471, I.P.C. In my opinion moreover the obtaining of an acquittal is very distinctly the obtaining of an advantage and brings the case within the definition of "dishonestly" in Section 24. Moreover Section 24 is not an exhaustive definition of the word dishonestly." The section does not say that the word "dishonestly" is applicable only when there is an intention of causing wrongful gain to one person or wrongful loss to another person but properly construed means that cases of intention of causing such wrongful gain or loss are, to be considered as coming within the wider class of dishonest actions. The appeals therefore fail and the sentences which, having regard to the offence and the frequency of its occurrence, are not severe must be maintained.

I desire to say that I am much indebted to the advocates for their assistance in this case.