Judgement

KAPUR J.- This is an appeal by Special leave under Art. 136 of the Constitution of India against the Judgment of the Allahabad High Court confirming the conviction of the Appellant Raghubansh Lal under S. 218 of the Indian Penal Code.

2. The offence for which the appellant was tried was that being a Patwari of village Arazi Mafi Pandai and thus a public servant, he "framed the Khasra of 1358 in respect of plots Nos. 170 and 74/1 of village Arazi Mafi Pandai" which he knew "to be incorrect with intent to cause or knowing to be likely that he would thereby cause an undue loss to Smt. Mahura Kanwar" .

3. The facts out of which this appeal has arisen are these. Two brothers, Mahadeo and Sahdeo, who were members of a joint Hindu family owned certain plots of land. Mahadeo died leaving a widow Basera Kunwar, a son Damodar Pande and a daughter Mahura Kuer. Sahdeo died leaving a widow Sundra Kuer. On the death of Damodar Pande, one Ram Sewak Pande brought a suit against Smt. Basera Kunwar and Smt. Sundra Kuer for possession of zamindari property including sir and sayar left by Damodar Pande which was dismissed. On the death of Basera Kunwar, Adit Pande son of Ram Sewak and one Gang Pande got their names mutated in regard to this property.

4. Smt. Mahura Kuar then brought a suit for possession of the estate left by Smt. Basera Kunwar against Adit Pande and Ganga Pande which was decreed on August 1, 1941. On May 31, 1943, Smt. Mahura Kuar obtained possession through Court of this estate which included the two plots Nos. 170 and 74/1.

5. On February 25, 1950, Mahura Kuer made an application to the Sub-Divisional Magistrate for taking proceedings under S. 145 of the Criminal Procedure Code against Adit Pande and Ganga Pande. The Magistrate ordered the attachment of the land including the two plots Nos. 170 and 71/1, and it is alleged that possession of these two plots was given to Shubh Karan as sapurdar or custodian. The property remained under attachment from March 15, 1950 to December 13, 1950 which would comprise a part of 1357F and a part of 1358F.

6. On December 18, 1950, the proceedings taken by the Magistrate ended in favour of Mahura Kuar with the finding that her possession had been established. Adit Pande and Ganga Pande were restrained from interfering with the possession of the lady; and it was ordered that the attachment should end and the possession of the plots of land in dispute be handed back to Smt. Mahura Kuer. The opposite party took a revision to the District Magistrate which was dismissed on March 28, 1951, and it is alleged that actual possession was delivered in April 1951. From December 1950 to April 1951, the delivery of possession remained stayed under the District Magistrate s order.

7. On July 31, 1951, Smt. Mahura Kuar filed the present complaint in the Court of the Judicial Magistrate at Ghazipur under S. 218 of the Indian Penal Code against the present appellant in which after reciting the various relevant facts she alleged that the accused who was a Patwari of the village had deliberately made wrong entries in regard to the plots Nos. 170 and 74/1 and in the remarks column had entered the name of Adit Pande as being in possession, and thus he had committed an offence under D. 218 of the Indian Penal Code. The case was committed to the Court of Session where in support of the prosecution Smt. Mahure Kuer herself appeared as witness No. 1 and her case was supported by two other witnesses, namely Gouri Shankar P.W. 2 and Naresh P.W. 3. The accused produced in defence Adit Pande, D.W. 1 and Ram Swarup D.W. 2.

8. The accused s plea in the Sessions Court was that he had come to know from Shubh Karan Chowkidar that Smt. Mahura Kuar had won the case under S. 145 of the Criminal Procedure Code, but in spite of the order of the Magistrate he found the possession "on the spot" to be of Adit Pande, that he did not act according to the order of the Magistrate because he did not receive any such order and that