P L D 1958 Dacca 253 (PLP)

ISPAHANI, J.‑This is an appeal by one of the accused who was tried by the Second Additional Sessions Judge, Bakerganj. The trial was held with the aid of assessors who found the appellant guilty under section 467, P. P. C., and three of the assessors found him not guilty under section 193, P. P. C. The learned Judge accepting their opinion convicted the appellant Abdul Hakim under section 467, P. P. C., and sentenced him to rigorous imprisonment for 2 ,ears and ordered him to pay a fine of Rs. 400 in default to rigorous imprisonment for 3 months more. He acquitted him under section 193, P. P. C. The other accused Muhammad Kazi was acquitted under .sections 467/109 of the P. P. C. The prosecution case is as follows :‑On 15th October 1954, one Abdul Latif of Dhaligournagar filed a complaint stating that the appellant had a few years back taken settlement of 4 gandas of land by a registered patta from him. Recently he asked the complainant for settlement of some more lands of the same jama and the complainant did not agree to give him that settlement. It is alleged that the appellant with the help of the other accused Muhammad Kazi, a deed‑writer of the Sub‑Registry Office, forged a patta dated 1st July 1954, in respect of his 8 ? gandas of land for a salami of Rs.

400. The patta purports to have been executed in favour of three minor sons of the appellant, namely, Mansur Ahmed, Jalal Ahmed and Manir Ahmed. According to the com?plainant, he knows nothing about the patta and he did not receive Rs. 400 as salami and that the lands covered by the patta are still in his possession. According to him, the appellant, with the help of the other accused, a deed‑writer, had this patta fabricated to deprive him of his land worth about Rs. 1,

000. The defence contended that the complainant had already parted away with all his lands before the date of the patta and the patta was brought into existence by the complainant himself in order to put pressure on the appellant and get some lands back from him. The appellant was charged under section 467, P. P. C., as follows :‑ "That you on or about the 1st July 1954, corresponding to day of 16th Ashar 1361, B. S., at Mirzakalu Sub‑Registrar Office, P. S. Tajumuddln, forged a certain document purporting to be a valuable security to wit, a patta, registered No. 1647, purporting to have been executed by complainant Abdul Latif in favour of your minor sons Mansur Ahmed, Jalal Ahmed and Manir Ahmed, to cause injury to him . . . . . ." He was further charged under section 193, P. P. C., as follows :‑ "That you, on or about the 1st July 1954, corresponding to‑day of 16th Ashar 1361, at Mirzakalu Sub‑Registrar Office, P. S. Tazumuddin, fabricated false evidence for the purpose of being used in any stage of a judicial proceeding by creating a false patta, Reg. No. 1647, purported to have been executed by Abdul Latif, the complainant, in favour of your minor sons Mansur Ahmed, Jalal Ahmed and Manir Ahmed . . . ‑ . ." Mr. D. C. Roy who has argued this appeal has pressed ground No. 5 taken in Memorandum of Appeal to the effect that the trial has been vitiated by reason of contravention of section 233 of the Criminal P. C., resulting in prejudice to the appellant. His argument is that the offences under section 467 and 19i of the P. P. C. are distinct offences and there is a misjoinder of charges in the present case and, therefore, the trial held is illegal and the conviction and sentence passed against the appellant cannot be supported. According to him, the case does not come within the purview of sections 235 and 239 (d) of the Criminal P. C. He contends that section 467 has nothing to do with section 193 and it has no 'connection whatsoever with the latter section and, therefore, both these offences cannot be tried in the same trial. In Babulal Choukhani v. The King‑Emperor (42 C W N 621), it was held that the legality of a joinder of different persons and offences under section 239 (d), Criminal P. C., in the same charge and trial depends on facts appearing on the face of the accusation and not on facts as they are established at the end of the trial. He has contended that although the appellant has been acquitted under section 193, P. P. C., the trial itself being illegal, his conviction under section 467, P. P. C., cannot be upheld. In Kamala Kanta Roy Choudhury v. Emperor (41 C W N 1112), it was held that section 537, of the Criminal P. C. does not cure misjoinder of charges such as is not permissible under the 'Code. Such defect goes to the root of the trial. To the same effect is the case reported in P L D 1956 F C

129. The position, therefore, is clear that if there is misjoinder of charges that cannot be cured under section 537 of the Criminal P. C., the trial must be held to be illegal. We have heard Mr. Roy and the learned Deputy Legal Remembrancer at length on the interpretation of section 235 of the Code of Criminal Procedure. Subsection 1 of that section is as follows "If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for, every such offence." In the present case the allegation is that on 1st July 1954, the appellant forged a certain document, namely, the registered patta No. 1647, purporting to have been executed by the complainant, Abdul Latif in favour of the appellant's minor sons and on the same day he fabricated false evidence for the purpose of being used in any stage of a judicial proceeding by creating the said patta purported to have been executed by the complainant in favour of the appellant's minor sons. It will be seen that by the act of the appellant, namely, by his forgery, he has committed two offences, one under section 467 and the other under section 193, P. P. C. A case like the present one, in our opinion, would be covered by subsection 1 of section 235 of the Criminal P. C. As observed by Biswas. J., in the case 41 C W N 1112 (1118), under section 235 (1), there must be one continuous thread of a common purpose running through the acts to support a joinder of .charges in respect thereof. Mere difference in time or place between the commission of one offence and of another will not necessarily import want of such continuity. The offence may yet be linked together by a community or continuity of purpose, and thus form the same transaction. That observation, in our opinion, would apply to the facts of this case and we accordingly hold that the two offences were committed in the course of the same transaction and, therefore, subsection 1 of section 235 of the Code of Criminal Procedure would be applicable to the facts of this case and, as such, there is no mis‑joinder of charges. The trial held is a legal one. The only other point for consideration is whether the conviction of the appellant under section 467, P. P. C., and the sentence passed thereunder can be upheld. Mr. Roy, in his usual candid manner, knowing the weakness of his client's case, did not press the appeal on merits. He merely referred to certain facts incidentally but did not develop them. It is not disputed that the pasta to question is a valuable security. According to the prosecution case, that patta was not signed by the complainant. The original patta has not been produced though it was in the appellant's custody. A certified copy thereof marked X is on record. At the time of the registration of the patta, the thumb‑impression of the executant was taken in the register maintained by the Sub‑Registrar according to the usual practice. That thumb‑impression was sent to the Finger‑Print Expert as also a specimen thumb ?impression of the complainant taken by a Magistrate. Both these thumb‑impressions were enlarged and examined by the Finger-print Expert. Exhibit 2 is the enlargement of the thumb ?impression in the register and Exh. 1 is the enlargement of the specimen thumb‑impression of the complainant. According to the Finger‑Print Expert, both these thumb‑impressions are not of the same person. Thus it has been established that the thumb‑impression in the register of the Sub‑Registrar, is not that of the complainant. The learned Judge compared the thumb‑impressions, Exhs. 1 and 2, and was satisfied that they are not of the same person. We also for ourselves have scrutinised Exhs. 1 and 2 and they have also been examined by Mr. Roy and by the Deputy Legal Remembrancer and Mr. Roy concedes that the thumb‑impressions on Exhibits 7 and 2 are not of the same person. According to complainant, he did not execute the patta or put his thumb? impression in the Sub‑Registrar's register. Mr. Roy did not seriously press the merits of this appeal but, for greater safety, we have set out the above facts. He admitted that on the facts his client has no case at all. The result, therefore, is that this appeal is dismissed and the conviction and sentence passed on the appellant under section 467 of the P. P. C. are upheld. The appellant is on bail. He must surrender to his bail bond forthwith and serve out the sentence imposed on him and pay the fine required of him, in default to suffer rigorous imprisonment imposed in lieu thereof. ASIR J.‑I agree. Z. A. S./A H.?? Appeal dismissed.