Boni Hampana Gowd and Another vs Emperor

King, J.—The appellants in this case have been found guilty by the learned Sessions Judge of Anantapur under Sections 193 and 471,

Indian Penal Code. They were prosecuted upon a complaint laid by the learned District Judge of Bellary, in which specific reference is made only

to Section 193.

The facts are that the two appellants were being sued on a promissory note. They went to their Vakil for the purpose of preparing a written

statement and took to him a bundle of receipts. The Vakil accordingly prepared a written statement, in which a plea of part, discharge was put

forward and produced this written statement in Court along with the three receipts, Exs. C, D and E. Subsequently, however, the appellants

remained ex parte and the suit against them was decreed upon the evidence of the plaintiff. It appeal''s that the plaintiff was confronted by the

Court with these receipts and asked to explain them. After some hesitation he contended that they were forged and subsequently the learned

District Judge, as already stated, filed a complaint against the appellants in respect of these receipts.

On the facts there is no serious contest. It is admitted that these receipts were actually handed over by the appellants to their Vakil and it is

admitted that the receipts are forged. Legal arguments have, however, been put forward. The first is that the evidence does not. establish that any

substantive offence under, Section 193 has been committed by the appellants and that at most all of which they have been guilty must be the

abetment of that offence. The learned Sessions Judge in para. 14 of his judgment seems to think, although he makes no specific reference to any

such argument, that the appellants are guilty either of forging these receipts or of abetting that forgery. It seems to me on the evidence that there is

no satisfactory proof that this forgery, which consists in the alteration of the English dates, could have been committed by the appellants themselves

and that the offence which they have committed must have been an abetment of the forgery. He has been laid down in Padmanabha Bangikamaya

v. Emperor 33 M 264 : 5 Ind. Cas. 145 : 7 M L T 79 : 20 M L J 84 : 11 Cr. L J 49, it is impossible for an Appellate Court in circumstances like

these to alter a conviction into a conviction for an abetment. I must, therefore, find the appellants not guilty of an offence u/s 193 and acquit them

on that charge.

With reference to the offence u/s 471, it is argued that as the learned District Judge filed a complaint u/s 193 only, the learned Sessions Judge

was incompetent to find the appellants guilty u/s 471. This argument is based upon the ruling of this High Court reported in Bangaru Asari v.

Emperor 27 M 61, where it was held that when a husband filed a complaint against a man in respect of his wife and did not specifically accuse that

man of having committed adultery with her, no Court could take cognisance of the offence of adultery and a conviction on the evidence for that

offence must beset aside. This ruling was cited before my learned brother Burn, J., recently in a case reported in Kunhammad v. Emperor (1933)

M W N 193. My learned brother held that it did not apply to the case before him. The case before him was almost exactly identical with the case

before me now and I respectfully agree with my learned brother that Bangaru Asari v. Emperor 27 M 61, cannot be applied. The point in Bangaru

Asari v. Emperor 27 M 61, is this, that no Court can take cognizance of an offence of adultery unless the husband of the woman concerned

definitely complained of adultery. In the present case no Court can take cognizance of this offence except upon the complaint of a Court; the Court

has complained of facts which constitute an offence u/s 471, and all that it has omitted to do is to refer specifically to the number of that section.

Therefore, it seems to me that the Court has made up its mind that the facts of which it complained, require investigation and there is nothing'' to

prevent the learned Sessions Judge from holding that on those facts an offence u/s 471 has been made out.

It is next argued that what the appellants have done does not amount to the using of these forged receipts, as genuine. That argument seems to

me quite unsustainable. It is impossible in my opinion to maintain that when a man gives receipts to his Vakil and asks him to produce them in

Court in support of his defence to a civil suit, he is not using those receipts as genuine. I, therefore, think that the conviction u/s 471, must be

upheld.

Then remains the question of sentence. The sentence for the offence u/s 471 is three years'' rigorous imprisonment. It seems to me that this

sentence is out of all proportion to the real seriousness of the offence which the appellants have committed. It is true that they are technically guilty

of an offence u/s 471, they have used as genuine documents which they knew must have been forged, but it seems to me, as has already been

mentioned, that they did not proceed to make any effective use of those documents. Although they were actually produced into Court, as I have

already seated the defendants (appellants) remained ex parte in circumstances'' in which they must have known that the suit would be decreed

against them. Although technically they are guilty of abetment of forgery and using as genuine forged documents, the appellants have really done

nothing which has seriously inconvenienced their opponent or seriously interferred with the administration of justice by a Civil Court. They have

been in jail for about one month and they have had to incur heavy expenditure in defending themselves in the Sessions Court and in prosecuting the

appeal. I think that experience and that expenditure will afford a salutary lesson, to them not to indulge in similar practices in future, and that the

ends of justice will be met by reducing the sentence to the period already undergone, I order accordingly.