Judgment

DUA, J.:- This appeal with certificate under Art. 134 (1) (c) of the Constitution directed against the judgement and order of the Gujarat High Court in criminal reference made by the Sessions Judge, Ahmedabad, raises an important question of law on which there appears to be conflict of judicial opinion. Even in the Gujarat High Court the correctness of the majority view in the Full Bench decision in the State of Gujarat v. Ali Bin Rajak, (1968) 9 Guj LR 1 (FB) has been doubted by the learned Judge hearing the criminal reference in the present case, who followed the majority view merely because he felt bound by it. The learned single Judge did not consider the case to be fit for reference to a larger bench for reconsidering the majority view in the case of Ali Bin Rajak, (1968) 9 Guj LR (FB), Certificate of fitness for appeal to this Court was, however, granted by the learned Judge.

2. The question raised relates to the scope and effect of S. 195 (1) (c), Cr. P. C. and its applicability to cases where a forged document has been produced as evidence in a judicial proceeding by a party thereto and prosecution of that party is sought for offences under Ss. 467 and 471, I.P.C. in respect of that document.

3. The relevant facts of the case may now be briefly stated. The appellant Patel Laljibhai Somabhai instituted a Civil Suit (No. 11 of 1964) in the court of Joint Civil Judge at Dholka against Vora Safakat Huseian Yusufali (hereafter called the complainant) and his brother Vora Ahmed Huseian Yusufali for the recovery of Rs. 2,000/- on the basis of a cheque dated November 22, 1963 (alleged to have been given to him on June 27, 1963) under the signatures of the complainant Vora Safakat Huseian Yusufali Lakadwala on the Bombay Mercantile Co-operative Bank Ltd., Ahmedabad Branch. The defence in the suit was that the cheque in question and certain coupons which were produced and relied upon in that suit were forged and the suit was false. The suit was dismissed on January 30, 1965 by the Joint Civil Judge, Dholka. The Court did not believe the plaintiff s story about the cheque. On November 16, 1965 the complainant filed a complaint in the Court of the Judicial Magistrate, First Class, Dholka against two accused persons for offences punishable under Ss. 467 and 471, I. P.C. The two accused were Vora Saifuddin Akbarali and the appellant. Vora Saifuddin Akbarali (accused no.1) is described in the complaint as the complainant s sister s husband. It was averred in the complaint that the complainant s elder brother Ahmedbhai had started a business in milk in Ahmedabad and accused no. 1 used to help him in that business from time to time. This business had been started in the shop of the brother of accused no. 1 who was also dealing in milk. Ahmedbhai used to stay at the house of accused no 1. The books, coupons and cheque books of the milk business had been kept at the residence of accused no. 1. This business was carried on till July, 1962 when it was closed and Ahmedbhai left Ahmedabad for Limbdi for staying there. The appellant had been appointed as the commission agent through accused no. 1 and milk was collected from various milkmen through him (the appellant). When the business was closed on July 28, 1962 a sum of Rs. 231.1.0 remained to be paid to the appellant and nine cans of milk remained in balance with him A notice was given in this connection after settling all the accounts and the appellant paid Rs. 200/- in cash to Ahmedbhai and thereafter nothing was due to the appellant. On November 30, 1962 the defendants in the suit at the instance of accused no. 1 started a milk shop at Jamalpur and they used to stay at the house of accused no. 1 who was employed in the Mercantile Bank and through whom an account was opened with that bank in the name of the defendants. Accused no. 1 used to utilise this account for himself and his brothers. Being a relative, accused no. 1 was trusted by the complainant and his brother and they used