Authored By : Mitter, Mitter

Mitter, J.

1. I do not think there is sufficient evidence in this caseto prove that the Exhibit A is a false document. The Sessions Judge has reliedupon some roobakarees which, on their bare production only, cannot be treatedas evidence. Excluding these, the conviction stands mainly upon two grounds:1st, on a comparison of the seal upon the Exhibit A with that of anotherdocument proved to have been executed by the Rajah of Cachar--the Sessions Judgeis of opinion that the two impressions of the seals do not tally; 2ndly, theappearance of the paper shows that it is not so old as it purports to be.

2. These grounds are, in my opinion, insufficient to supportthe conviction. It may be that the Rajah changed his seal, and thiscircumstance may account for the difference between the impressions of theseals.

3. The second ground is based upon mere conjecture. Then,even granting that the Exhibit A is a forgery, I do not think that it has beenshown that the appellants knew it to be so. Further, on accepting all the factsas correctly found by the Sessions Judge, I do not think that the appellantsare guilty of any offence under the Penal Code. The facts are simply these: Theappellants in order to get a recognition from a Settlement Officer that theyare entitled to the title of "Loskur," produced a sunnud purportingto have been granted by the Rajah of Cachar. The document is found not to begenuine. The question is, supposing the appellants used this document knowingit to be not genuine with intent to obtain recognition of their alleged"Loskur" title from the Settlement Officer, is it an offence underSection 471 of the Indian Penal Code or under any other penal law of thecountry The Sessions Judge found the appellants guilty under Section 471 ofthe Indian Penal Code. In using this document, if they had no fraudulent ordishonest intention, they cannot be guilty under Section 471 of the IndianPenal Code.

4. Section 24 of the Code defines the word"dishonestly." It is to the following effect: "Whoever doesanything with the intention of causing wrongful gain to one person, or wrongfulloss to another person, is said to do that thing dishonestly." Now, theintention of the appellants was not to cause wrongful gain, or wrongful loss toany person.

5. The word "fraudulently" is thus defined inSection 25 of the Code: "A person is said to do a thing fraudulently ifhe does that thing with intent to defraud, but not otherwise."

6. In this case evidently the intention of the appellantswas to produce a false belief in the mind of the Settlement Officer that theyare entitled to the dignity of "Loskur," and in order to produce thisbelief they produced the sunnud "A," which has been found to be notgenuine. Without defining precisely what would constitute "an intent todefraud," we are clear that it cannot be held in this case that theappellants produced the sunnud to "defraud" the Settlement Officer,and therefore it cannot be said that they used the document"fraudulently," as defined in Section 25 of the Indian Penal Code. Weare, therefore, unable to agree with the Sessions Judge that the appellants areguilty under Section 471 of the Indian Penal Code. Nor does the act of theappellants in our opinion amount to any other offence. We, therefore, set asidethe conviction and acquit the appellants.

Mitter, J.

7. In the appeal by Waris Meah, which is against theconviction by the same Sessions Judge, the same question of law arises. For thereasons given in Appeal No. 87 we are of opinion in this case also that, takingthe facts found by the lower Court as correct, the appellant is not guilty ofany offence. The Sessions Judge has convicted the appellant of using a documentwhich he finds to be a valuable security. The document in question in this caseis a sunnud of a similar description conferring a certain dignity upon thegrantee. A document of this description cannot, in our opinion, be held to be avaluable security, as defined in the Indian Penal Code. We, therefore, setaside the conviction of the appellant in this appeal also.

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Jan Mahomed and Ors.vs. Queen-Empress (17.04.1884 -CALHC)