Jagdish Singh and Others vs Emperor

Meredith, J.—The petitioners have been convicted u/s 193 Penal Code and sentenced to one month''s rigorous imprisonment each. Their appeal has been dismissed by the learned Additional Sessions Judge of Saran.

The money, Rs. 4000 due on a mortgage was deposited in the Court of a Munsif at Chapra to the credit of Ram Chander Singh and another, sons of the mortgagee, Sahodra Kuer, u/s 83, T.P. Act. An application was then made to the Munsif to depute a special peon to serve the notice of deposit The notice (Ex. 3) was made over to a Court peon (P.W. 6) for service, and the peon duly put in a service report to the effect that he could not find Ram Chander''s brother, but he effected service on Ram Chander Singh who took the notice for himself and his brother, but refused to give a receipt. Laldip Singh attested the service report as identifier, and the three petitioners, attested as witnesses, one of them being the chaukidar. Subsequently, Ram Chander appeared before the Munsif and filed an objection that on the date of the alleged service he was not at the place specified, Piprahia, but at Bagha in the district of Champaran. After enquiry, the petitioners and the identifier were all prosecuted and convicted. The appeal of all four was dismissed, but the identifier has not come up to this Court in revision.

I have been asked to go into the evidence on the question as to whether Ram Chander could have actually been at Piprahia at 7 A.M. on the 1st of September when notice was reported to have been served. But this is a pure question of fact. There is the clearest finding of fact by the Court below that the evidence on record leaves no room for doubt that Ram Chander Singh could not have been at Piprahia. This finding cannot be disturbed in revision.

The point which has been mainly urged is that there is no evidence that the attesting witnesses were aware that the notice was to be served on Ram Chander and no one else, and so there is nothing to show that they knew that the attestations they were making were false. This contention is supported by reference to the case in Prayag Singh v. Emperor AIR 1919 Pat. 528 which is certainly a case in point, but it is the decision of a Judge sitting singly and is not an authority binding upon me. Apart from that, I am of opinion that it is not really open to the petitioners to put forward a contention like this at this stage, because they did not take any such defence.

On the contrary, they took a line of defence which was inconsistent with the present contention. They insisted and tried to prove that service had actually been made upon Ram Chander, and that the attestations made by them were in fact correct. It was not suggested on their behalf that they did not know Ram Chander, and, being local people including the chaukidar, they must have known him, and it was not suggested that they did not know that Ram Chander was the person to be served. The point now raised involves questions of fact as well as law and quite clearly, therefore, it ought to have been raised in the courts of fact. Having regard to the defence taken, we cannot assume at this stage the possibility of a state of affairs necessary before the point of law urged can be said to arise. It may, I think, safely be taken that the petitioners knew Ram Chander. The peon at the trial could not identify them as he had forgotten their faces. That was natural, but he could prove, and did prove, that he effected the service in the presence of the persons who attested their names on the report Now let us consider the possibilities. If the person served was an imposter and posed as Ram Chander, the petitioners must at once have detected the fraud, and could not have made bona fide attestations.

But suppose that the man did not say he was Ram Chander, nevertheless the identifier certainly identified the man as Ram Chander in the presence of the peon and the petitioners. If he had not done so, the peon would at once have realised the position Therefore, it seems impossible to suppose that the petitioners did not know that the identifier was identifying a man as Ram Chander. It seems to me that the possibility, in the circumstances, of their having believed that the process was not to be served on Ram Chander but on Some one else is so remote that for all practical purposes it can be disregarded

Of course there is always one other possibility. It might be that the whole report was false, as sometimes happens, and that the peon really did not go to the spot or attempt service at all. But that would only make the position worse for the petitioners who attested the report. In that case also they must have known that they were attesting a false report.

It is not the practice of this Court to interfere in revision unless it considers that there is a real possibility that there has been a miscarriage of Justice. In the present case I am of opinion that there is no such possibility, and it cannot be doubted that the petitioners were parties to the preparation of a report which has been found to be a false report.

In the circumstanced the rule is discharged.