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Petitioner: MADAN LAL AGARWALLA VS Respondent: THE STATE
P L D 1960 Dacca 813
P L D 1960 Dacca 813
Before Ispahani and Sattar, JJ
MADAN LAL AGARWALLA AND ANOTHER‑Appellants
versus
THE STATE‑Respondent
Appeal No. 83 of 1959, decided on 10th June, 1959.
(a) Confession‑To be accepted or rejected as a whole Criminal Procedure Code (V of 1898), S. 164.
Confessions and admissions must either be accepted as a whole or rejected as a whole. It is not competent for a Court to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible. It is, therefore, not possible to accept a part of the confession wherein the person confessing admits that he signed the compromise petition and reject the exculpatory part wherein he states that he did so on a blank piece of paper.
Palvinder Kaur v. The State of Punjab 1953 S C R (Ind.) 226 ref.
(b) Criminal Procedure Code (V of 1898), S. 423‑Person convicted under two charges, sentenced only under one‑Appellate Court may award sentence in respect of other charge where that is the only charge under which such person can be found guilty.
Where a Magistrate has convicted an accused person under two charges but has not passed a separate sentence in respect of one of the charges, the Sessions Judge in appeal may, on finding the accused guilty only of the charge in respect of which no separate sentence was passed, award a sentence upto the limit of the sentence imposed by the Magistrate `on the other charge.
Superintendent and Remembrancer of Legal Affairs, Bengal v. Hossen Ali and another 42 C W N 1040 fol.
(c) Penal Code (XLV of 1860) S. 195 (1) (c)‑Person not party to proceeding‑Provisions not attracted.
Abdus Salam Khan, Maksum‑ul‑Hakim and Abdul Muntaquim Chowdhury for Appellants. Serajul Huq for Appellant No. 2. Salahuddin Ahmed, Deputy Legal Remembrancer and K. Shamsul Huda for the State.
JUDGMENT
ISPAHANI, J.‑This is an appeal by Madan Lai Agarwalla and Amulyakumar Das, who were tried along with 5 others by the Special Judge, Faridpur, to answer charges under sections 120‑B, 109, 466, 467 and 171 of‑the Pakistan Penal Code. The learned Judge convicted the appellant Madan Lal Agarwala under section 467 and sentenced him to rigorous imprisonment for 5 years and to pay a fine of Rs. 2,000, in default to rigorous im prisonment for another year. He also convicted him under section 471, but passed no separate sentence thereunder. He was also found guilty under section 466 but no conviction and sentence was passed thereunder. The appellant Amulyakumar Das was convicted under sections 467/109, P. P. C. and sentenced to rigorous imprisonment for 3 years and to pay a fine of Rs. 1,000, in default to rigorous imprisonment for 6 months more. He was also found guilty under sections 466/109 but no conviction or sentence was passed thereunder.
2. The facts of the case may be briefly stated as follows: Nagendrakumar Saha and Ramesh Chandra Saha were tenants of Laxmi Narayan Agarwalla in respect of a holding within Farid pur Municipality. Laxmi Narayan filed M. P. Case No. 332/51 before the House Rent Controller, Sadar, Faridpur, on 28‑9‑51 to get permission to file a suit for ejectment against the tenants. In the course of the progress of the case, Laxmi Narayan filed a petition before the House Rent Controller on 1‑4‑52 through Syed Azhar Ali, his pleader, stating that he would not proceed with the case. Mr. S. M. Hossain, the then House Rent Controller, passed an order to the effect that "the petitioner does not like to proceed with the case. File." That order was the last order passed in that case. The tenants obtained certified copies of the said withdrawal petition and the order. The accused Israil is the second Bench clerk of the House Rent Controller, Faridpur Sadar. He used to remain in charge of the disposed of records of cases.
3. The appellant Madan Lal Agarwalla is a brother of Laxmi Narayan Agarwalla and a friend of accused Nityananda Poddar. He used to visit Nitya's house and Nityananda was a clerk of accused Abdul Bari, Muktear. Abdul Bari also visited the house of his clerk Nityananda. Accused Helaluddin Choudhury was an unlicenced clerk of accused Abdul Bari. Accused Amulyakumar Das and Montu Saba were friends of accused Nityananda and they also visited his house. It is said that during the period from 2‑4‑52 to 15‑2‑54 the appellant Madan Lal Agarwalla with the help of accused Nityananda, accused Israil and others removed the withdrawal petition from tie record of the M. P. Case No. 3 33; 51. In its place, a forged compromise petition, Exh. 11, was introduced. The compromise petition was prepared in conspiracy with appellant Madan Lal Agarwalla, Abdul Bari, Helaluddin, Montu Shah and Israil. The draft of the compromise petition was prepared by accused Abdul Bari. On the dictation of Nityananda and Abdul Bari, appellant Amulyakumar Das wrote tire compromise petition. It is alleged that Madan Lai Agarwalla forged the signature of his brother Laxmi Narayan Agrawalla and accused Helaluddin forged the signature of Nagendrakumar Saba and accused Montu Saba forged the signature of Ramesh Chandra Saha in the compromise petition. The venue of these activities was in the house of Nityananda. Jogendra Nath Das is a witness to all these activities. After the preparation of the compromise petition, it was placed in the record of M. P. Case No. 332/51 in collusion with accused Israil and others. The court‑fee stamp which was in the withdrawal petition was removed from it and affixed to the compromise petition. That compromise petition contained a condition that the opposite parties Nagendrakumar Saba and Ramesh Chandra Saba would vacate the holding within December, 1933. The opposite parties were not in the know of such compromise. It is said that after the expiry of the above period, another House Rent Control Case No. 3 of 1954, was filed by appellant Madan Lai Agarwalla with the help of accused Abdul Bari, Nityananda and others before the House Rent Controller, Sadar Faridpur, on IS‑2‑54 and in that petition the signature of Laxmi Narayan Agarwalla was forged by appellant Madan Lal Agarwalla. In the 'said petition, a fresh permission to institute an ejectment suit against the tenants was sought on the ground that the opposite parties were continuing in occupation of the holding in violation of the express terms of the compromise petition. Notice of such petition was served on the tenants who appeared before the House Rent Controller and filed an objection stating that the compromise petition, as referred to in the petition of the petitioner was an out and out forgery. The tenants prayed for prosecution is the persons responsible for the forgeries. They also filed copies of the withdrawal petition and the order in the first case. The House Rent Controller after hearing the parties dismissed the petition and did not accord permission to the petitioner to sue the tenants for ejectment. The matter was taken before the District Judge, Faridpur, who sent the case back to the House Rent Controller for enquiry and for necessary action. The District Judge heard both the parties and on 4‑10‑55 rejected the petition alleged to have been filed by Laxmi Narayan Agarwalla and ordered the Inspector of Police, D. A. B., Faridpur, to enquire into the allegations of forgery. This was done and in course of investigation the appellant Madan Lal Agarwalla and accused Amulyakumar Das made confessions which were recorded by a 1st class Magistrate implicating themselves and others. After investigation and after obtaining sanction for prosecution, charge- sheet was submitted on 31‑1‑58 under various sections of the Code already referred to.
4. The accused persons pleaded not guilty and the defence of Abdul Bari Muktear was that the first case was filed not from his sherista but from the sherista of Babu Satyaranjan Dutta. The accused Nityananda contended that Jogendra Nath Das, the Head Assistant, D. A. B. Faridpur, is his enemy and he had been implicated in the case at his instance.
5. Mr. Abdus Salam Khan appeared on behalf of appellant Madan Lal Agarwalla and Mr. Serajul Huq appeared on behalf of the other appellant Amulyakumar Das. The State was represented by Mr. Salahuddin Ahmed, the learned Deputy Legal Rememb rancer, and Mr. K. Shamsul Huda.
6. The facts of the case have been stated somewhat in detail when narrating the prosecution case with a view to simplifying the discussion of this case. It is not disputed that in the first House Rent Control Case No. 332 of 1951 a withdrawal petition was filed by Laxmi Narayan Agarwalla and that that petition was removed from the records of that case. There is ample evidence in support of this. It is not disputed that the withdrawal petition was substituted by a compromise petition, Exh. 111. It is not disputed that the compromise petition is a forged document and it purports to be a valuable security. It is not disputed that on the basis of the compromise petition, another House Rent Control Case No. 3 of 1954, was started in the name of Laxmi Narayan Agarwalla.
7. The disputed signatures on the compromise petition, Exh. II, and the petition giving rise to House Rent Control Case No. 3 of 1954 were examined by a hand‑writing expert, P. W. 15 Abdul Wahed Talukdar. On Exh. 11, three signatures appear purporting to be those of Laxmi Narayan Agarwalla, Nagendra, kumar Saha and Ramesh Chandra Saha. Exh. 34 is the specimen signature of Laxmi Narayan Agarwalla. Exh. 41 is the specimen signature of Nagendrakumar Saha and Exh. 42 is the specimen signature of Ramesh Chandra Saha. These three were compared with the impugned signatures on Exh. II and the opinion of the hand‑writing expert is that they do not tally with the specimen signatures. His further opinion is that the impugned signature reading Laxmi Narayan Agarwalla on Exh. 11 tallies with the specimen signature Exh. 35, of Madan Lai Agarwalla. Thus it has been proved by the hand‑writing expert that the signature purporting to be that of Laxmi Narayan Agarwalla on Exh. II is in fact the signature of appellant Madan Lai Agarwalla. Similarly, three signatures appear in the petition in House Rent Control Case No. 3 of 1954 purporting to be that of Laxmi Narayan Agarwalla on the basis of which that case was started. Those were marked by the hand‑writing expert as Exhs. E, E (1) and E (2) and, on comparison with the specimen signature of Laxmi Narayan Agarwalla, he found them not to agree with the same but to agree with the specimen signature of Madan Lal Agarwalla. The fact that the signature reading Laxmi Narayan Agarwalla is not that of that person but is of appellant Madan Lai Agarwalla has been proved by the hand‑writing expert. On the basis of this petition, Exh. V, the second House Rent Control case was started and Exh. V, the petition itself, came into existence on the basis of the compromise petition, Exh. 11. We may state that, for reasons unknown to us, these two exhibits have been marked as material exhibits by the trial Judge, which is never done.
8. P. W. 14 is Sarojkumar Sarkar, an honorary Magistrate who was at Faridpur Sadar at the relevant time. On 1‑11‑55, at 11-20 a. m., appellant Madan Lal Agarwalla was produced before him under orders of the S. D. O., dated 1‑11‑55, for recording his confessional statement. He was produced in his ejlas. The Magistrate gave him necessary .warning and caution and gave him time for reflection for three hours. During that time he was kept in his ejlas and no police was present inside or outside. Before recording his statement, he again gave him caution after which he recorded his statement in his own language. In his opinion, the statement is voluntary and he attested the statement, Exh. 27.
9. On 20‑12‑55, on the orders of the S. D. O., he recorded the confession of appellant Amulyakumar Das. He also was given due caution and time for reflection and, in his opinion, the confession was voluntarily made and no police‑officer was inside or outside the Court room where he recorded the confession. In the confession, Exh. 27, appellant Madan Lal Agarwalla narrates under what circumstances he signed a blank sheet of paper at the instance of Nitya Babu who promised to get for him the ghar occupied by the tenants Nagendra and Ramesh. Nitya Babu promised to eject the tenants within two months and Madan Lai put his signature an a piece of blank paper and signed his elder brother's name an8 paid Nitya Babu Rs. 350. Because his brother Laxmi Narayan Agarwalla was not there, Madan Lal Agarwalla signed his name in Hindi. After a few days, Nitya took his signature on the muktearnama.. Later on, he came to know that Nitya Babu had forged his signed paper by writing something thereon. At this stage, we may mention that it was argued, because the signatures were in Hindi, that it was not competent for the hand‑writing expert to express any opinion thereon. The hand‑writing expert has given very clear and cogent reasons as to why he was able to say so. From the contents of the confession, Exh. 27, it is thus clear that the appellant Madan Lai Agarwalla admits writing his brother's name in Hindi on a blank sheet of paper. He, however, does not admit anything else as to the contents of that paper. Arguments were advanced to the effect that although appellant Madan Lai admitted the signature, it has not been proved that he put the signature on that sheet of paper knowing the contents thereof to be false. In other words, the knowledge of forgery, it is urged, has not been brought home to him. Some witnesses wire examined to bring some knowledge of the contents to Madan Lai Agarwala in order to establish the charge of forgery under section 467 of the Pakistan Penal Code. P. W. 19 is Jogendra Chandra Das who lives in a building and the west bhiti of that building is in the occupation of Nitya Babu. Both the buildings are close to each other intervened by a pathway. He has deposed that the appellant Madan Lal used to visit the quarters of Nitya and Abdul Bari also used to visit those quarters. He also knows the appellant Amulyakumar Das who also visited Nitya Babu's quarters and worked as an assistant to Nitya Babu. One day he saw Madan Lal, Abdul Bari Amulya, Nitai and Montu at the quarters of Nitai in the last part of Sravan, 1360 B. S.
He found all the persons in the southern room of the building of accused Nitai and he saw accused Nitai dictating something from a paper and he saw Amulya writing, on another paper, the dictation. He further deposed that when accused Nitai could not read the last portion, accused Abdul Bari took the paper from accused Nitai and dictated the last portion. He found other persons join them and signing the paper. P. W 21 is imam Ali who knows Nitya Babu and whose house is 509 or 600 cubits off from his house. He also says he found 7/8 persons in the quarters of Nitya Babu and amongst them were Abdul Bari and Amulya Das. He also found another Hindu like Marwari Madan Lai Agarwalla (identified). He had been to the quarters of Nitya to know whether he would sell a but at his village house. He saw all this when he went there and he had a talk with Nitya Babu and he found Amulya writing something on a paper and accused Nitya was dictating from a paper. Nitya made over his paper to Abdul Bari and then he came to them. The evidence of these two witnesses was not relied upon by the trial Judge and we for ourselves have perused their evidence but it does not establish that appellant Madan Lai Agarwalla, before he signed the compromise petition, Exh, II, did so after reading the same. The evidence only shows that a paper was written and that has not been shown to be Exh. II. Thus the position, therefore, is that apart from his admission that he signed on Exh. II, there is no evidence that he did so after Exh. II bad been written and had been read over to him. In this connection, reference may be made to Palvinder Kaur v. The State of Punjab (1953 S C R (Ind.) 226), where it was held that confessions and admissions must either be accepted as a whole, or rejected as a whole and it is not competent for a Court to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible. In view of this authority, it is not possible to accept a part of the confession that he signed the compromise petition and reject the exculpatory part that he did so on a blank piece of paper. When the whole confession, Exh. 27, is rejected, there is no evidence against this appellant so far as the offence punishable under section 467 is concerned. The conviction and sentence passed thereunder must, therefore, be set aside.
10. This leaves us with his conviction under section 471, P. P. C. Under this section, it must be established that Madan Lal Agarwalla fraudulently or dishonestly used as genuine the compromise petition, Exh. 1), which he knew or had reason to believe to be a forged document. Until and unless the ingredients of this section are established, he cannot be convicted under this section. The learned Deputy Legal Remembrancer has referred to some evidence to impute knowledge of forgery on the part of this appellant. P. W. 4 is Satish Chandra Biswas who was the pleader for the tenants in the first House Rent Control Case. He has deposed that on compromise that case was withdrawn and appellant Madan Lal Agarwalla looked after the two M. P. cases for the petitioner. P. W. 6 is Satyaranjan Datta, a practising Muktear for about 24 years, and P. W. 7 is Biraj Mohan Sen Gupta who was engaged as a Muktear for Laxmi Narayan Agarwalla by his brother Madan Lal Agarwalla. Now both these witnesses were pleaders for the petitioner in H. R, Case No. 332. Satyaranjan Datta stated that Madan Lai paid Rs. 5 as his fee in that case. Their evidence shows that the petition, Exh. V, was filed by Madan Lai Agarwalla before the House Rent Controller, Faridpur Sadar. the petition was filed on the basis of a certified copy of the compromise petition, Exh. II. Exh. 22 is the hazira, dated 9‑7‑55, containing the name of Madan Lai Agarwalla as a witness in the second case. Exh. 12 is an order, dated 20‑4‑54, in the second House Rent Control case, which shows that the peti tioner filed a certified copy of the compromise petition on which the first case was compromised and withdrawn. The opposite party in that case challenged the same. Lastly, we may refer to the evidence of P. W. 12, Syed Sahadatali, a pleader who knows M. P. Case No. 332 of 1951 of the House Rent Controller, Faridpur Sadar. The petition, Exh. 1, of that case was filed by him in the Court of the House Rent Controller. Laxmi Narayan Agarwalla signed the petition, Exh. 1, in his presence. That case was formerly withdrawn by a petition by the petitioner Laxmi Narayan Agarwalla. His pleader, Syed Azharali, drafted the petition on the instruction of the petitioner. The witness faired it out and, after obtaining the signature of Azharali, filed it in the Court of the House Rent Controller. Certified copy, Exh. 18, is to the effect of that withdrawal petition. He knows accused Madan Lai Agarwalla, a brother of Laxmi Narayan Agar walla, who occasionally took the dates of the case on coming to Court. These facts have been referred to and they go to show that the first House Rent Control case was withdrawn and the appellant Madan Lal Agarwalla knew that the case was withdrawn and he filed Exh. V, the petition on which the second House Rent Control case was started on the basis of a compromise petition, Exh. II, which he knew or must have known to be a forged document. He was aware of both the House Rent Control cases and it cannot be urged on his behalf that he filed the petition, Exh. V, starting the second case without knowing that the first case had been withdrawn and the compro mise petition in the first case, was a forged document. He has rightly been convicted under section 471 of the Pakistan Penal Code.
11. The trial Judge has not passed any sentence on Madan Lal Agarwalla under section 471 and it was contended on his behalf that no sentence could be passed by us under that section. This argument must fail. Reference may be made to the case of Superintendent and Remembrancer of Legal Afairs, Bengal v. Hossen Ali and another (42 C W N 1040), where it was held that when a Magistrate has convicted an accused person under two charges but passed no separate sentence under one, the Sessions Judge in appeal may, on finding the accused guilty only of the charge in respect of which no separate sentence was passed, award a sentence upto the limit of the sentence imposed by the Magistrate on the other charge. Following this decision, we impose a sentence of 5 (five) years' rigorous imprisonment on Madan Lal Agarwalla under section 471, P. P. C., and also impose a fine of Rs. 2,000 in default to rigorous imprisonment for one year.
12. This leaves the case of the appellant Amulyakumar Das for consideration. He admittedly is the scribe of the compromise petition, Exh. II. He was a clerk assisting Nitya Babu who in his turn was a clerk of Abdul Bari. He made a confession, Exh. 32, in which he admits writing the compromise petition from a draft given to him by Nitya Babu. As he could not read the draft, the draft was read over to him and, after it was written, Nitya Babu asked Madan Lai to sign his elder brother's name which be did. He states in that confession that Nitya's daughter is in illicit love with Madan Lal. Nitya and Madan did all this in order to get the ghar of Nagen. Thus this appellant admits writing the com promise petition. It must be seen whether the accusation against him has been brought home or not. When he was examined under section 242, Criminal Procedure Code, he was not questioned of having abetted any offence under section 467 committed either by Madan.Lal Agarwalla or any other accused. He was questioned only of having abetted an offence committed by Abdul Bari, Nityananda Datta and Israil under section 466 of the Pakistan Penal Code and 467 of the said Code. The other accused have been acquitted by the trial Judge and, as we have found that it has not been established that Madan Lal Agarwalla has committed an offence under section 467, P. P. C., abetment of an offence punishable under section 467, P. P. C. by this appellant does not arise. Thus his conviction and sentence under sections 467/109, P. P. C., must be set aside.
13. It was lastly contended that in the present case the provisions of section 195 (1) (c) are attracted and, as there is no complaint by the Court concerned, the trial held is illegal. Clause (c) of subsection (1) of section 195 is as follows:---
"No Court shall take cognizance of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate."
The argument is that as there is no complaint in writing by the House Rent Controller, the whole proceedings are illegal. We may here mention that in both the House Rent Control cases, the appellant Madan Lal Agarwalla was not a party and both the cases were in the name of his brother Laxmi Narayan Agarwalla. As Madan Lal Agarwalla was not a party to those proceedings, the provisions of clause (c) of subsection (1) of section 195 are not attracted.
14. We have considered all the evidence and the arguments advanced. The result, therefore, is that the appeal is allowed in part. We find that the conviction and sentence passed on appellant Madan Lai Agarwalla under section 467 must be set aside and it is ordered accordingly. His conviction under section 471, P. P. C. is upheld and he is sentenced to rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 2,000, in default to suffer rigorous imprisonment for another year. He is not found guilty under section 466, P. P. C. The conviction and sentence passed on appellant Amulyakumar Das under sections 467/109, P. P. C., are set aside and he is found not guilty under sections 466/ 109. Amulya Kumar Das is on bail. It is ordered that he be discharged from his bail bond.
SATIAR, J.‑I agree.
K. B, A, Appeal partly accepted.