JUDGMENT

Boys, J. - This is an appeal on behalf of the Local Government from the acquittal of Padam Singh, son of Mohan Singh, who had been found guilty by the trial Court u/s 193, I.P.C., and sentenced to nine months' rigorous imprisonment, but who had been acquitted by the learned Sessions Judge on the ground that the facts did not come, at any rate did not clearly come, within Sections 191 and 193, I.P.C. Before us two questions have been fully argued, one of law and the other of the merits, and it is incumbent on us to deal with both. The plaintiff in a civil suit was Sher Mohammad Khan. The defendant was the present opposite party, Padam Singh. The suit was brought on the basis of a promissory note said to have been executed by Padam Singh on 15th January 1926, supported by a receipt stated to have been taken from Padam Singh on the same date.

2. The suit was brought on 11th August 1928 and was decreed ex parte on 25th September 1928. An application for restoration made on 15th October 1928 was allowed on 1st December 1928, and on the same date the defendant, Padam Singh, was directed to file a written statement. He filed the written statement and in it denied execution of the promissory note, denied owing any sum at all and at the end of the written statement he verified these denials stating that the paragraphs in which the denials were made were true to his personal knowledge. No question has been raised before us that the verification was not in the ordinary form called for by Order 6, Rule 15.

3. Having filed this written statement on 1st December 1928, Padam Singh three weeks later, on 20th December 1928, applied that the thumb-impressions on the promissory note and the receipt alleged to be his might be sent for examination.

4. Police Inspector Gorton of the Finger Print Bureau of the Criminal Investigation Department reported that the finger prints on the promissory note and receipt, which were the basis of the suit, were the finger prints of Padam Singh, the defendant. Padam Singh, having heard that the report was against him, again allowed the suit to be decreed in default. The learned Judge of the Court of Small Causes issued notice u/s 476, Criminal P.C., to Padam Singh to show cause why he should not be prosecuted u/s 193, I.P.C. Padam Singh appeared in response to the notice and threw himself on the mercy of the Court. We have not had his answer placed before us in detail, but it is common ground between the learned Government Advocate and the counsel for Padam Singh that he did not on that occasion do more than throw himself on the mercy of the Court, more especially he did not set up any defence of any sort that his finger impressions must have been taken from him while he was in a state of intoxication, which was his line of defence at the criminal trial which followed.

5. As we have said above, Padam Singh was convicted by the Magistrate and has been acquitted by the learned Judge. The Magistrate considered that the only question which he really had to determine was whether the thumb impressions of the accused had been obtained by fraud while the accused was drunk or whether the accused had deliberately perjured himself in the civil Court in order to evade the satisfaction of the loan. Rejecting the accused's defence, he held that Padam Singh was clearly guilty u/s 193, I.P.C., and there is nothing to show that any question was raised before him that if the alleged facts were found against the accused, Section 193, I.P.C., was not applicable. The grounds of appeal to the learned Sessions Judge do not appear to have raised any question but one of fact, But the question of the applicability of Section 193 or, in the alternative, Section 199, I.P.C., was clearly raised before the learned Sessions Judge who was further referred to the decisions in Queen Empress v. Meharban Singh [1884] 6 All. 626 and Janki Rai Vs. Emperor, AIR 1927 All 383 . After mentioning these cases the learned Judge says:

In the present case