Mullick, J.Agreeing with all four assessors the learned Sessions Judge of Monghyr has sentenced the appellant Zahuri Sahu to rigorous imprisonment for eighteen months for an offence u/s 471, I.P.C. Agreeing with three of the assessors the learned Judge has sentenced the appellant to rigorous imprisonment for eighteen months and a fine of Rs. 100 for an offence u/s 209. I.P. C; the terms of imprisonment are to run concurrently.

2. It is found by the learned Judge that on the 20th November 1925, Zahuri instituted a suit in the Court of the Small Cause Court Munsif at Begusarai upon a hand-note against one Badri Gope. Badri Gope contended that the hand-note was a forgery and that the thumb impression on it was not his thumb impression. The hand-note was sent to a fingerprint expert together with the admitted impressions of Badris thumb in both hands. The expert found that the impression upon the hand-note did not tally with those taken for Badri. When the Small Cause Court case came on for trial, Zahuri absented himself and the suit was dismissed for default. Thereafter Badri applied for the prosecution of Zahuri and notice was issued upon him to show cause why he should not be prosecuted. Zahuri did show cause and his defence was that he had never filed the plaint nor the hand-note and that the thumb impression on the verification to the plaint was not his. The Munsif directed a prosecution nevertheless with the result that Badri was tried in the Sessions Court at Monghyr and was convicted and sentenced as stated before.

3. Now the case seems to be proved beyond doubt. It is established by the evidence of the finger-print expert that the hand-note is a forgery and that Badri never put his thumb impression on it. The expert deposes that Badris thumb impression is of a different type to that found upon the hand-note and that the number of deltas also differ.

4. The substantial question in this case is whether the defence hat Zahuri never appeared in the civil Court at all and that some other person impersonated and caused a plaint to be filed in the Small Cause Court can be accepted. Upon this point we have the evidence, first of all of Jageshwar Prasad who was the pleader who filed the plaint, and his clerk, Ajodhya Prasad, who caused the plaint to be prepared and verified; then there is also the evidence of the pleader Babu Baidyanatheswar Prasad who appeared for Zahuri in the miscellaneous proceedings in which he was called upon to show cause against his prosecution. Babu Jageshwar admits that he had never seen him before the day on which Zahuri came to file the plaint, he had opportunities of seeing this man in the course of a civil suit and he deposes that Zahuri was the man who brought the hand-note.

5. Ajodhya Prasad similarly had many opportunities of seeing Zahuri and he too deposes that Zahuri was the man who brought the hand-note and that the verification upon the plaint was drawn up by some one under Zahuris instructions. He himself did not see the verification drawn up nor the thumb impression put upon the verification. He says he told Zahuri to get it done. Zahuri was asked in Court whether he was willing to give his thumb impression for comparison with the thumb impression upon the plaint and he declined. I think in these circumstances, it is open to the Court to draw an inference adverse to him.

6. Our attention has been drawn to Bazari Hajam and Another Vs. Emperor, in which there are observations by one of the Judges constituting the Division Bench to the effect that it is improper to take forcibly a thumb impression from an accused person in a criminal proceeding. The decision, however, did not turn upon that point, and the question whether it is proper or not to ask the accused to give his thumb impression was not clearly raised. On the other hand, it was decided by a Full Bench in the High Court at Rangoon in Emperor v. Tun Hlaing AIR 1924 Rang. 115 that the Court has power u/s 73, Indian Evidence Act, to direct an accused person, present in Court, to make his finger impression for the purpose described in that section and that Section 342, Criminal P.C. relates only to the oral questioning of the accused.

7. Section 5, Act 33 of 1920 which is an Act to authorize the taking of measurements and photographs of convicts and others lays down:

If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Criminal Procedure Code, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates Shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photographs to be taken, as the case may be, by a police officer.

In my opinion there was quite sufficient legal authority for the Court to ask the accused person whether he would consent to have his thumb impression taken for comparison with the thumb impression upon the plaint. But this is not all. Babu Baidyanatheswar Prasad, the vakil who appeared for the accused in the miscellaneous proceedings, deposes that the accused was the man who came to answer the notice issued by the Court. There the accused denied that he was the person who had filed the hand-note or the plaint. Babu Baidyanatheswar had several opportunities of seeing the accused and his evidence cannot be lightly brushed aside.

8. The result is that, in my opinion, the assessors were fully justified, upon the evidence, in believing the case for the prosecution and the learned Sessions Judges order must, therefore, be affirmed. The conviction u/s 209, I.P.C. for making a false claim fraudulently and u/s 471, I.P.C. for dishonestly using as genuine a forged hand-note, is upheld. There is no doubt that the accused being himself the plaintiff knew of the fraudulent nature of the claim and of the fraudulent nature of the hand-note. In these circumstances the convictions under both sections are correct and the sentences are not unduly severe.

9. The appeal is dismissed.

Wort, J.

10. I agree.