MUHAMMAD KHAN Vs. GOURISHANKAR MISRA
HIGH COURT OF ORISSA
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Panigrahi, C.J. -
(1.) This is a revision directed against an order of acquittal passed by the Sessions Judge, Sambalpur, in an appeal against the conviction of the opposite party, Gouri Shankar Misra, who is said to be a Pleader of Sambalpur. The facts giving rise to this petition are that the opposite party filed Money Suit No. 213 of 1936 in the Court of the Munsiff, Sambalpur, on the foot of a money-bond, Ext. A-1, dated 226- 32, against one Kruttibas Naik who is said to be his maternal uncle. The debt was originally contracted by Kruttibas Naik and his brother from the father of the opposite party. One of the debtors paid up his share of the debt and for the share of Kruttibas a fresh bond was taken in the name of the opposite party. The bond recites :
"Prom your father, I and my brother had incurred a loan of Rs. 500/- by executing a bond, towards the interest of which we had paid Rs. 120/-. Rs. 366/- is the share payable by me, being half of the total dues thereunder. As the dues under that bond have fallen to your share and as I am unable to repay the same, I execute this bond acknowledging my liability to pay Rs. 366/-. I stipulate to pay you within one year the amount with interest at 6 per cent. per annum." The opposite party filed a suit for recovery of this amount and it was alleged in the plaint that Ext. A was allotted to the share of the plaintiff at an earlier partition between himself and his father,
(2.) Eleven years later, that is in 1947, the opposite party and his father R.N. Misra instituted Title Suit 11 of 1947 in the Court of the Subordinate Judge against the present petitioner and another person for a declaration that they had the sole right to collect kendu leaves within a particular area. The contention raised by the petitioner who was the defendant in that suit is that the suit was hit by Section 69, Partnership Act, as the plaintiffs were divided in status. The opposite party examined himself in the suit and stated on oath that there was no partition, in fact, between him and his father and that the allegation made by him in the plaint of the year 1936 was made only for the purpose of that suit as he was under the belief that the suit was to end in a compromise. It is due to the apparent contradiction between the pleading in the plaint of 1936 and the deposition of the opposite party in 1949 in the later Title Suit that the petitioner ventured to file a petition under Section 476, Cr. P. C., for prosecuting the opposite party for perjury. That petition ultimately came up to the High Court and my learned brother Narasimham J. sanctioned the prosecution of the opposite party in --'Civil Criminal Appeal No. 1 of 1951, (Ori) (A)', in consequence of which the Registrar filed a complaint in the Court of the Subdivisional Magistrate, Sadar Sambalpur. The learned Magistrate found that an offence under Section 193, I. P. C., had been made out against the opposite party as the allegation made by him in the plaint in 1936 was intentionally false. On appeal the learned Sessions Judge came to a different conclusion and set aside the conviction and sentence passed on the opposite party. The learned Sessions Judge held that there was no evidence in the case to establish which of the two contradictory statements was true. He further held that the allegation in the plaint was carelessly made and cannot be said to have been intentionally false. The learned Judge was also of opinion that the allegation of oral partition was not necessary for getting a decree in the money suit; and it is, significant that this allegation was not spoken to by the opposite party in the evidence recorded in that suit.
(3.) It appears strange that the complainant who initiated criminal proceedings has not thought fit to complain against the order of acquittal words used are "as the dues under the bond have the State Government appealed against that decision. It is at the instance of a third party that this matter has been brought to the notice of this Court. I should be extremely reluctant to interfere in revision and set aside an order of acquittal which would inevitably lead to a re-trial of the opposite party. Having regard to the fact that the allegation about the oral partition was made over 17 years ago it cannot be said to be in the interests of public justice that the opposite party should be put to the harassment of a new trial at this stage. Apart from that there was sufficient justification, in my opinion, for the view taken by the learned Sessions Judge. The bond, Ext. A, itself recites that the debt was payable to the opposite party; the express words used are "as the dues under the bond have fallen to your share". That is a recital made by the debtor in favour of the creditor and the pleading should necessarily accord with the terms of the contract. It appears to me, therefore, that there could have been no intention on the part of the opposite party to make a false statement to get an undue advantage over the debtor or to mislead the Court. The father of the opposite party was made a defendant. Whatever the truth may be, the facts were all known to the parties and were in accordance with the recitals in the bond. In these circumstances, I am not inclined to regard the allegation about the oral partition, made in the plaint in 1936, as intentionally false so as to attract the operation of Section 193, I. P. C.;
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