Narayan Meher vs Dhana Meher

Wort, J.—This is an appeal the facts of which arise out of a suit on a money bond which purports to have been executed on 1st June 1921. The suit was dismissed by the Subordinate Judge on 22nd November 1926. There was then an appeal to the Additional District Judge and the suit met the like fate before that Court. There was then an appeal to the High Court and in a short judgment by the learned Judges of that Court it was stated that the Courts below had come to the conclusion that the bond in question was fabricated with a view to saddle liability in the name of a dead person upon the contesting defendants who had nothing to do with the alleged loan or the execution of the bond. As a result of that there was an application by the respondents to this appeal to the Subordinate Judge to prosecute them for forgery. That application was dismissed and there was an appeal to the Additional District Judge. The Additional District Judge in the result reversed the decision of the Subordinate Judge. On 16th June the case having come up before him there was a preliminary objection by the appellants and the substance of that objection was that no appeal lay to the District Court. That objection was overruled and in so doing the learned Additional District Judge stated that the appellants should take immediate steps to call from the registration office the original document which according to them contained an admitted thumb-impression of Mt. Giridha since deceased. Then on 18th June that document appears to have been produced before the Judge and on 23rd June he made the order against which this appeal is preferred.

Although as I have stated the original document which bore the admitted thumb-impression of Mt. Giridha had been produced before the learned Additional District Judge, he makes no mention of that fact nor makes any statement as to whether he considered the admitted thumb-impression on the document so produced with the thumb-impression on the document in dispute; and it is contended by the learned advocate who appears in support of this appeal that without that decision this prosecution ought not to have been ordered. Now before dealing with that question I should mention two matters which come before us before the question which I have just mentioned comes to be decided: the first is a preliminary objection on behalf of the Crown that no appeal lies to this Court. The argument is based on a decision of the Calcutta High Court in Ahamadar Rahman Vs. Dwip Chand Choudhury and Another, . In that decision the High Court construed Section 476 and came to the conclusion that no appeal lay from the decision of the District Judge to the High Court in a matter of this kind. In that decision, that is to say, in the decision of the Calcutta High Court two cases were considered one, the case of Muhammad Idris v. Emperor AIR 1925 Lah. 322 which was a decision to the same effect as that to which the Calcutta High Court came, and the other, a decision of the Patna High Court, being the case of Ranjit Narain Singh and Others Vs. Rambahadur Singh and Others, . The view of the Calcutta High Court was that the decision in this Court was wrong. The decision in Ranjit Narain Singh and Others Vs. Rambahadur Singh and Others, is to the effect that on the construction of Section 476, a right of appeal is given to the High Court from the decision of the District Judge who first ordered the prosecution u/s 476. At first it was contended that having regard to the state of the authorities this matter ought to be referred to a Full Bench of this Court, but it would seem that when reference is made to Section 195 of the former Criminal Procedure Code, it is difficult to believe that the legislature in Section 476 intended otherwise than as the learned advocate for the appellants before us contends, namely, that where a Court orders a prosecution there is in law an appeal to this Court. In any event there seems to be no sufficient reason, having regard to the decision in Ranjit Narain Singh and Others Vs. Rambahadur Singh and Others, to which I have referred, to refer this matter to a Pull Bench of this Court.

There is a farther contention by the learned advocate on behalf of the appellant that the appeal to the Additional District Judge was not competent and therefore his order is illegal but that point has not been pursued.

It becomes therefore necessary to decide the contention which he now puts forward as to whether the prosecution, on the facts ought not to have been ordered, is one that cannot be maintained. The substance of the argument is that in looking at the decision of all the Courts with the exception perhaps of the High Court all that has been made out is that the plaintiffs have failed to prove their case; and I think when reference is made to the decision of the learned Subordinate Judge, that contention is right. The learned Subordinate Judge in the course of his judgment states thus:

In my opinion the evidence about the execution of the bond in suit by Mt. Giridha is of the flimsiest character. It is deserving of consideration that no thumb-impression of Mt. Giridha was taken on the bond. Considering the evidence and not losing sight of the natural probabilities I am not disposed to hold that Mt. Giridha executed the bond in question.

It is contended that that is the substance of the judgment and although that may be sufficient to warrant the Court in dismissing the plaintiffs'' claim in a civil suit, yet it was not enough to warrant a prosecution for forgery against those who put forward the document as part of their evidence.

There was at one time, and it is made clear by the petition of complaint of the Additional Judge himself, a suggestion that an expert witness should be called to compare the two thumb impressions, that is to say, the thumb impression on the bond in dispute and the admitted thumb impression on the document which was produced by the registration office and in the list of witnesses made by the learned Additional District Judge reference is made to that thumb impression expert. It is perfectly clear that if a Government, expert be examined to examine the two thumb impressions, his evidence cannot fail to have a very material effect upon the prosecution, in other words, if his evidence or report be that the thumb impressions are the same it is difficult to see how the prosecution in this case can succeed.

In my judgment therefore the reasons given by the Additional District Judge in ordering the prosecution are not sufficient. The case will go back for the Government thumb impression expert to be examined by the learned Additional District Judge after which he will make such order as in the circumstances is necessary.

Muhammad Noor, J.

I agree.