The judgment in probate proceedings and the finding in the civil court were not binding on the criminal court in a case of alleged forgery.

VAIDYA J.-There is no substance in the above Criminal Appeal filed by the State of Maharashtra against the order of acquittal passed by the Additional Sessions Judge, Kolhapur on May 30, 1974, in Sessions Case No. 91 of 1973 instituted on a private complaint filed by the complainant, Nanasaheb Vyankatrao Suryavanshi, alleging that the respondents who were accused Nos. 1 to 5, accused No.2 being the mistress of Respondent No. I, had conspired together and forged the will purported to have been executed by the father of Respondent No.1 so as to defeat the right of the complainant's daughter who was the married wife of the Respondent No.1. The complainant merely relied on his own evidence and the certified copy of the judgment in probate proceedings instituted by his daughter to prove that the will was forged.

2. The learned Sessions Judge disbelieved the complainant as an interested witness, with two previous convictions, as stated by him in para 13 of his judgment. Further, as the only evidence to prove the charge was that of such a complainant who stated that the will was forged, on the basis of comparison and similarity of signatures of the deceased Dattatray, the learned Sessions Judge felt that it would be hazardous to rely on the evidence of the complainant.

3. He relied on the decision in Kessarbai v. Jethabhai Jivan1, where Lord Atkin has observed at page 281 as follows:

"They would have thought it unsatisfactory and dangerous in any event to stake a decision in such a case as this on the correct determination of the genuineness of a signature by mere comparison with admitted signatures, especially without the aid in evidence of microscopic enlargements or any expert advice."

4. The learned Sessions Judge also rightly relied on the decision in Ramkrishna Ganpat Futane v. Mohammad Kassam Mohammad Naki2 and we find that it is impossible for us to interfere with the decision of the learned Sessions Judge about the appreciation of the oral evidence of the complainant, which is the sole basis, on which the charge was attempted to be proved in the present case.

5. Mr. B. D. Kamble, the learned Public Prosecutor, however, contended that apart from the evidence of the complainant, there was the finding of the Civil Court in the Probate Proceedings filed by the complainant's daughter and by Respondent No.2 who is the rival claimant under the rival will and the judgment in that proceedings, which was declared in favour of the daughter of the complainant was binding on Respondent No.2. In other words, he tried to argue that the finding in the Probate Proceedings that the will which was produced by Respondent No.2 was found to be forged, was binding on the learned Sessions Judge.

6. This argument must be rejected, because under section 41 of the Evidence Act, the judgment of the Probate Court is conclusive proof only with respect to the various legal characters or declarations made in those proceedings, in so far as they are within the scope of the proceedings. The Civil Court had no jurisdiction to decide that the document is forged within the meaning of the penal section under the Penal Code. Hence, the declaration that the will was forged, cannot be binding on the Sessions Court.

7. It is here useful to refer to the decision of the Division Bench of the Calcutta High Court in Gogun Chunder Ghose v. The Empress3. White and Field JJ. held in that case that the judgment of the Civil Court could not have been admitted in the Criminal trial observing as follows:

"The ground of the appeal is that this judgment was improperly admitted as evidence, and that eliminating the judgment there is not sufficient evidence to justify the verdict. There can be no doubt the judgment was improperly received. Technically, it was inadmissible, because it was not between the same parties, the present parties technically being the Queen-Empress on the one hand and the prisoner on the other, and the respective parties in the civil suit being the