Sudarsan Behara vs King-Emperor

This appeal u/s 476-B of the Code of Criminal Procedure is preferred by Sudarsan Behara from the order of the Subordinate Judge of Sambalpur directing a complaint to be made against the appellant of offences under Sections 465 read with 114 and under 471 of the Indian P.C. His order was passed on appeal, the Munsif having refused to make a complaint.

The salient facts are simple. In July 1924 the appellant brought the Possessory Suit No. 174 of 1924 against Jai Banchhore and his sons Bhikha and Surubuda in respect of lands hypothecated to him in 1904 by Usat and Chandrasekhar, uncles of Jai, on the allegation that defendants had dispossessed him in the previous month. In his plaint he set out that when Brishav, son of Usat dispossessed him in 1919 he brought the Possessory Suit No. 459 of that year and that on 26th August 1919 a fortnight before the date fixed for the hearing a compromise was effected, Brishav and his brothers relinquishing possession and executing "the document attached to the record. That document was eventually marked Ex. 4 in the suit. It bears a one anna stamp and purports to be executed on the 26th August 1919 by Brishav and his brothers in favour of the appellant.

The defence to the suit was that the defendants who were the cousins of Brishav and his brothers, lent the latter Rs. 150 with which the plaintiffs debt was repaid during the pendency of the suit of 1919 which was dismissed for default, that Brishav and his brothers continued in possession and thereafter surrendered the land and that the defendants had then obtained settlement of it from the gaontia in June 1924. It was urged that Ex. 4 was fabricated to defeat the defendants'' rights.

The Munsif disbelieved and negatived the defence, accepted the plaintiff''s story and decreed the suit. As to Ex. 4, he pointed out that he came to no positive finding regarding it except that the stamp on it was apparently not in use in 1919. He found, however, that the plaintiff succeeded altogether apart from it.

Thereafter the defendant Surubuda prayed the Munsif to make a complaint against the plaintiff-Sudarsan Behara for offences under Sections 465, 471, 474 and 193 of the I.P.C. and also against the scribe and attesting witnesses for abetment of those offences. The Munsif held an inquiry u/s 476. Therein it was shown by Surubuda that the stamp on Ex. 4 was not in existence before 1922 while the appellant showed cause against a prosecution by seeking to establish that Ex. 4 was not ''a false document'' because it had not been made dishonestly or fraudulently. In support of his plea the appellant gave his own deposition and produced Ex. B a document on stamped paper bearing date the 26th August 1919 which purports to be executed by Brishav and his brothers on that date in favour of the appellant and his two brothers, and the contents of which are substantially the same as those of Ex. 4. His testimony was that Ex. B having been erroneously executed in favour of all three brothers, although in fact he was the only beneficiary, he got the executants of Ex. B to execute Ex. 4 in his favour and the scribe erroneously gave to the now deed the date of the document which it superseded. It was shown that Sudarsan''s brothers had no interest in the subject matter of the two deeds. The Munsif accepted the cause shown and holding that though it was foolish to have Ex. 4 antedated, there was no fraud or dishonesty on Sudarsan''s part in that regard, he refused to make a complaint u/s 476.

On appeal the learned Subordinate Judge (who rightly held that under the provisions of Section 195 read with Section 21(2) and (4) of the Bengal, Agra and Assam Civil Courts Act the appeal lay to him) held broadly that the materials were not sufficient to enable him to come to a definite conclusion on the question of the bonafides of the appellant in respect of the making and filing of Ex. 4, and allowing the appeal he directed a complaint to be lodged of offences under Sections 465/114 and Section 471. He maintained the decision of the Munsif that no action could be taken against the scribe and the witnesses. As he said nothing of an offence u/s 193 it would appear that the question was not pressed in appeal before him.

The matter has bean argued before us at length and we have examined all the evidence, oral and documentary, upon the records of the suit and of the inquiry held u/s 476. The conclusion at which we have arrived is that it is not shown that Ex. 4 is in fact ''a false document.'' The only object of the appellant in having it made was to clear up the position as between himself and his brothers. That could cause no wrongful loss to the executants, and though it was a gain to himself it was not a wrongful gain. It was also not a fraud upon anybody as the document came into existence and indeed was shown to the settlement authorities long before Jai Banchhore and his sons obtained settlement of the land from the gaontia. The executants are the same in both cases and the only one of them who can sign his name deposed in favour of the defendants in the possessory suit of 1924 and did not deny execution of Ex. 4. There is no reason to hold that Ex. B is itself a forged document fabricated as a defence to the charge regarding Ex. 4.

On the materials before us, we are inclined to the view that the Munsif was correct in holding that the prima facie case which led him to hold an inquiry u/s 476, was rebutted by the cause shoyra by the appellant and that foolish as the appellant was in letting Ex. 4 be antedated, there was no dishonesty or fraud on his part, and so Ex. 4 is not a false document. Ordinarily this Court will not interfere in appeal u/s 476-B unless, as was said in Ranjit Narain Singh and Others Vs. Rambahadur Singh and Others, , "extraordinary circumstances are visible" which did not appear in that case. In the present instance the circumstances are very peculiar. As soon as the Munsif afforded him an opportunity, the appellant offered an explanation which the Munsif who knew the circumstances and who conducted the inquiry, accepted fully as true and as showing that neither dishonesty nor fraud, one at least of which is a necessary ingredient in the offences punishable under Sections 465 and 471, was present in the conduct of appellant in making and filing Ex. 4. The Munsif Section finding was not displaced by the learned Subordinate Judge.

Had it been displaced, different considerations might arise. As matters stand, the explanation is consistent with all the materials on the record and with the probabilities. On the peculiar facts therefore we are unable, to find that Ex. 4 is a false document, and the indications are that it is not.

Accordingly a complaint was not necessary or expedient and, allowing the appeal, we direct that the complaint be withdrawn.