Shearer, J.:— This is an appeal by two men, Mahesh Chandra Prasad and Raghubansi Prasad Chaudhry, who have been convicted by the learned Sessions Judge of Darbhanga. The former has been convicted under section 466 of the Penal Code and has been sentenced to undergo rigorous imprisonment for one year. The latter has been convicted of abetting the commission of that offence and has been sentenced to undergo rigorous imprisonment for two years, presumably, on the ground that the offence was committed at his instigation and for his benefit.
On the 6th of January, 1940, Raghubansi Prasad Chaudhry took a conveyance of certain land from one Ramkaran Jha. Some three weeks or so earlier, on the 14th of December, 1939, this land had been sold in execution of a decree for arrears of rent and had been purchased by the landlord. Ramkaran Jha made an application to have the sale set aside, and, pending the disposal of it, obtained an order staying the confirmation of the sale and the delivery of possession. This application was dismissed on the 4th of April, 1940, and, shortly afterwards, the sale was confirmed. Subsequently, on the 29th of August, 1940, an application under Order XXI, rule 90, Code of Civil Procedure, was made by Raghubansi Prasad Chaudhry. The ground taken in the application was that Raghubansi Prasad Chaudhry had taken a conveyance of the land before the sale in execution of the rent-decree was confirmed. When the application was put in, there was also put in, along with it, a list of documents which list was made out by Mahesh Chandra Prasad, who was Raghubansi Prasad Chaudhry's karpardaz. The application eventually came up for hearing on the 14th of June, 1941, and the ground then taken was, not that Raghubansi Prasad Chaudhry had taken a conveyance of the land on the 6th of January, 1940, but that, sometime earlier, on the 22nd of October, 1939, Ramkaran Jha had entered into a contract to sell the land to him. On behalf of the auction-purchaser, it was contended that this ground could not be taken as it had not been specifically taken in the original application which was, in any event, not maintainable. The learned munsif took time to consider the matter. During the hearing, the mahadanama or contract of sale, entered into between Ramkaran Jha and Raghubansi Prasad Chaudhry, had been referred to, but had not actually been shown to the Court. The learned munsif wished to look into it before coming to a decision, but was unable to find it in the record. On the following day, when he came to Court, he asked the peshkar to examine the record and show it to him, but, according to the peshkar, he too was unable to discover it. The pleaders were then sent for, and one of them, on examining the record, discovered in it a closed envelope. This envelope, which bore on it the signature of the pleader who had appeared on behalf of Raghubansi Prasad Chaudhry, was opened, and, in it, there was discovered the mahadanama. Both the mahadanama and the envelope bore the impression of a seal on them which, admittedly, was not the seal of the Court of the munsif. When the list of documents, which, as I have already said, had been made out by Mahesh Chandra Prasad, was looked into, it transpired that the entry in it, relating to the mahadanama, was, or appeared to be, an interpolation. The learned munsif thereupon made an investigation into the mafter, and, eventually, directed that the appellants should be prosecuted.
The case for the prosecution is that Mahesh Chandra Prasad contrived to obtain access to the record and made an interpolation in the list of documents and also inserted in the record the closed envelope containing the mahadanama sometime after the application was put in and either before or after it was heard by the learned munsif. The defence set up was that, originally, it had not been intended to rely on the mahadanama, and, in consequence, no mention of it had been made in the application. Immediately, however, before the application was put in, the mahadanama had been made over to Mahesh Chandra Prasad and he had made a further entry in the list of documents and handed over the mahadanama and the envelope in which it was discovered, as well as the sale-deed and the corresponding envelope intended for it, to the sharistadar. There can, I think, be no doubt whatever that the mahadanama and the envelope in which it was discovered were not, in fact, made over to the sharistadar. If they had been, the sharistadar would, no doubt, have put the seal of the Court on each of them, as he did on the sale-deed and on the envelope in which the sale-deed was contained, and he would, in the ordinary course, have handed them over to the clerk entrusted with the safe custody of such documents. This clerk said that he had got the envelope containing the sale-deed, but had not got the other envelope containing the mahadanama. On this point, he was corroborated by the peshkar, who said that, in consequence of a note on the list of documents, he had gone to this clerk, when the application came on for hearing, and obtained from him one envelope but not two envelopes. It was suggested that the recollection of the peshkar and the clerk might be at fault, but I cannot see any possibility of this, as the peshkar, at least, was speaking to an incident which had occurred not more than two or three days before he was interrogated. The seal on the mahadanama and on the envelope containing the mahadanama was, as I have already said, not the seal of the Court. I can see no reason to suppose that the sharistadar would have put the seal of the Court on the sale-deed and on the envelope containing it, and, instead of doing the same in the case of the other envelope and document, would have omitted to do so, and then, or subsequently, either himself put, or permitted some one else to put, quite another seal on them. The possibility of anything of this kind having happened is so extremely remote that no reasonable man could act on the assumption that it did. Moreover, there is the conduct of Mahesh Chandra Prasad in making the entry in the list of documents in the very curious manner he did. In the list, as it stood originally, there were two entries, one bearing serial no. 1 relating to the sale-deed, and the other serial no. 2, relating to the envelope in which the sale-deed, after having had the seal of the Court impressed on it, was to be enclosed for safe custody. Assuming that Mahesh Chandra Prasad was telling the truth when he said that the mahadanama and the envelope in which it was found were handed over to him immediately before he was about to put in the application, one would expect him to have added two more serial numbers in the appropriate column in the list, and against serial no. 3 to have set out full particulars of the mahadanama and against serial no. 4 to have stated, as he did against serial no. 2, that it was an envelope in which the mahadanama was to be enclosed. However great a hurry he may have been in, it is, to my mind, quite inconceivable that he would have done no more than enter in the list of documents the mere word ‘mahadanama’ and in another column the date on which this mahadanama purports to have been executed. The evidence against Mahesh Chandra Prasad is, no doubt, wholly circumstantial evidence, but the circumstances are such as to preclude any possibility of the mahadanama having in fact been put in on the 29th of August, 1940. They show, in my opinion, quite conclusively, that the mahadanama and the envelope in which it was discovered were surreptitiously introduced into the record long afterwards. Whether they were in the record on the 14th of June, 1941, or were not introduced into it until the 16th of June, 1941, when the learned munsif sent the record back to the peshkar with instructions to search for and discover the mahadanama, is not very material. I may say, however, that I find it difficult to believe that the pleader, who appeared in support of the application, had not satisfied himself that the document on which he based his argument and of which he had been given a copy was not in fact on the record. It must, I think, have been put there earlier than the 14th of June, 1941. Possibly it was removed after the argument and before the record was sent to the munsif, and was again put back into the record when the munsif insisted on a search being made for it.
It is conceded that, what was done by Mahesh Chandra Prasad, was reprehensible and was also punishable as a contempt, and a serious contempt, of Court. But it is contended that it did not amount to forgery. The foundation of the argument put forward by Mr. Srinarayan Sahay, for the appellant was a well known passage in Chapter XVIII of Sir James Fitzjames Stephen's History of the Criminal Law of England.
It is there said:—
“There is little danger in saying that whenever the words ‘fraud’ or ‘intent to defraud’ or ‘fraudulently’ occur in the definition of a crime two elements at least are essential to the commission of the crime; namely, first deceit or an intention to deceive or in some cases mere secrecy; and, secondly, either actual injury or possible injury or an intent to expose some person either to actual injury, or to a risk of possible injury by means of that deceit or secrecy.”
Mr. S.N Sahay has assumed that the learned author was there using the word ‘injury’ in its technical and restricted sense of an actionable wrong rather than in its wider and more popular sense of harm to an individual or to the community at large. I can see no reason myself why such an assumption should be made. Moreover, Sir Fitzames Stephen had specifically disclaimed any intention of attempting
“to construct a definition which would meet every case which might be suggested.”
and there are several cases in the books in which a person has been tried for, or convicted of, forgery when the deception which he practised, if it had succeeded, could not have exposed him to an action for damages. I may refer, in the first place to Regina v. Francis Emsley Toshack which was decided in 1849, and to Regina v. Henry Hodgson which was decided seven years later. In the former case, the prisoner had forged a number of certificates for the purpose of enabling him to be admitted to an examination conducted by the Corporation of Trinity House. In the latter, the prisoner had altered a diploma issued by the College of Surgeons, so as to make it appear that the diploma had been granted to him, whereas it had in fact been granted to some one else. In the former case, the prisoner was convicted, while in the latter, he was acquitted. The ground, on which he was acquitted, was, however, that it was not clear that, at the time he altered the diploma, he intended to use it to secure employment for himself, or, indeed for any other particular fraudulent purpose. If it had been possible to say that he had such an intent in his mind, he would, no doubt, have been convicted. Erle, J., in the course of the argument in that case, is reported as having said: “I do not see any great distinction between the danger of loss of life at sea through the employment of an incompetent pilot, and the danger of loss of life on land through the employment of an incompetent surgeon”. In other words, the ratio decidendi in the case of Regina v. Toshack would appear to have been that, if the deception which the prisoner had practised had succeeded, harm was likely to have ensued to the community at large or to certain individuals in it. Another case, which appears to me to be in point is Rex v. Robert Harris which was decided in 1834. In that case, a letter, purporting to be from a justice of the peace, was sent to the governor of a jail intimating to him that certain persons had come forward to stand as sureties for a certain prisoner in the jail and that the prisoner should be released. The prisoner was not, in fact, released, as the governor of the jail doubted the authenticity of the letter, and, on making inquiries, found it to be a forgery. In this particular case, it is clear that the intention of Mahesh Chandra Prasad was to deceive the Court into the belief that the mahadanama had been put in along with the original application, and that the advantage, which he expected to gain thereby, was to obtain a decision based on a ground which could not otherwise have been put forward. To tamper with the record of a proceeding in a Court of justice in order to obtain from that Court a decision or order which it otherwise would not make is, to my mind, as much a public mischief as to attempt to secure the unauthorized release of a prisoner from jail or to obtain for an unqualified person credentials entitling him to practise as a surgeon or to navigate a ship. I can see no reason why the expression
‘with intent to defraud’
as it occurs in section 25 of the Penal Code, should be more narrowly construed by the Courts in India than it has been construed by the Courts of Common Law in England in which, in an indictment for forgery, an intent to defraud had to be alleged. A Full Bench of the Calcutta High Court in Queen-Empress v. Abbas Ali had to consider the meaning of the expression, and referred with approval to the decision in Regina v. Toshack. It was there pointed out that section 463 of the Penal Code contemplates two quite different classes of intents. Now, the words which occur in that section
“with intent to cause damage or injury to the public or to any person……… or with intent to commit fraud or that fraud may be committed”
are of very wide and far-reaching import. In this particular case, it can, I think, be quite fairly said that there was an intent on the part of Mahesh Chandra Prasad to commit a fraud on the Court and also, perhaps, to cause damage to the auction-purchaser at the sale in execution of the rent-decree.
Mr. Srinarayan Sahay contended that the interpolation made in the list of documents by Mahesh Chandra Prasad was so clumsy a one that it was not likely to have imposed on the Court, and that, in any event, whether Raghubansi Prasad Chaudhry had or had not entered into a contract to purchase the property, he was not entitled to have the sale set aside. In other words, it is urged that, what was done by Mahesh Chandra Prasad, could not possibly have led to the Court giving a wrong decision. In the case of Rex v. Harris, the deception did not, as I have just said, succeed, and there was apparently little or no danger of it succeeding. Moreover, in Regina v. Nash the Courts in England have gone so far as to hold that, if there was an intent to defraud, it was immaterial that, in the circumstances of the particular case, it was impossible that any person could in fact be defrauded.
A number of decisions were referred to in the course of the argument, but each of them was based on its own particular set of facts. I will, however, mention one of them: In the matter of Moses Amado Taylor, which was strongly relied upon by Mr. Srinarayan Sahay. In that case, a barrister of the Supreme Court of Sierra Leone obtained from the Deputy Master of the Court certain subpoenas. He found that two of the persons, on whom the subpoenas were issued, were not prepared to give evidence for his client, and, thereupon, he struck out their names and substituted the names of two other persons instead. He was prosecuted and pleaded guilty to a minor charge and submitted to a fine of £20. Subsequently, an order was made removing his name from the roll of barristers and solicitors of the Supreme Court. Against this order he appealed, and the appeal was allowed, their Lordships of the Judicial Committee taking the view that the evidence did not show or suggest any intent to defraud on his was that the appellant could very easily have obtained other subpoenas and that he had in fact told the Deputy Master that he wished to examine some other persons besides those for whom he had originally obtained subpoenas. Another circumstances was that a practice had grown up of issuing subpoenas in blank to barristers or solicitors who, thereupon, entered in them the names of the persons on whom they were to be served. The question, which the Judicial Committee had to consider, was whether the defendant had been guilty of such conduct as made it undesirable that he should continue to practise as a barrister, and not whether what he had done amounted to, or might amount technically to, forgery. In Rex v. Robert Collier the prisoner was indicted for forgery on the ground that he had altered a printed form, of a distringas into a summons. It appeared that blank summonses were sometimes issued to attorneys who filled them up for themselves. The jury brought in a verdict of not-guilty, but Mr. Justice Patteson observed: “I am not prepared to say, that, after the notice that this trial will give parties as to the impropriety of the practice, I should not hold that this mode of filling up a summons, or of altering a distringas into a summons, was not forgery”. In any event, it is perfectly clear that the circumstances of these two cases differ toto caelo from the circumstances with which we have to deal here. In neither case, was the defendant actuated by any dishonest or fraudulent motive, whereas Mahesh Chandra Prasad quite clearly intended to practise a fraud upon the Court. Indeed, in order that he might successfully practise the fraud, he persuaded or bribed some clerk in the office of the munsif to permit him to have access to the record and make an interpolation in it. The guilt of this appellant has been satisfactorily established, and his appeal ought, in my opinion, to be dismissed.
It is, of course, plain that the offence, which was committed for the benefit of his employer, Raghubansi Prasad Chaudhry, and there is a strong probability that Raghubansi Prasad Chaudhry instigated or encouraged him to commit it. There is, however, no evidence of any kind against this man except the statements which he himself made during the trial and at the hearing of his application under Order XXI, rule 90, Code of Civil Procedure. Unless, therefore, there is to be found in these statements an admission of guilt, he cannot be convicted. Now, what Raghubansi Prasad Chaudhry has said from the outset is that the mahadanama was made over by him to his karpardaz on the 29th of August 1940. That statement would appear to be quite untrue, but it does not obviously amount to a confession that, at sometime subsequent to the 29th of August, 1940, he instigated Mahesh Chandra Prasad to try and obtain access to the record in order to insert the mahadanama in it and to make an interpolation in the list of documents. Apart from that, one cannot wholly exclude the possibility that Mahesh Chandra Prasad did what he did of his own motion with the mistaken idea of forwarding the interests of his employer, and that the latter endeavoured to shield him from the consequences by supporting the defence which he put forward. The appeal of Raghubansi Prasad Chaudhry must, in my opinion, be allowed, the conviction and sentence imposed on him must be set aside and he must be discharged from his bail.
Meredith, J.:— I agree.
Appeal of Mahesh dismissed.
Appeal of Raghubansi allowed.
K.D