Emperor vs Akhileshwar Prasad

Bucknill, J.—This was a reference dated the 12th January 1925, made to this Court by the Assistant Sessions Judge of Patna under the provisions of Section 307 of the Criminal Procedure Code.

It relates to one Akhileswar Prasad who was charged with having committed offences under Sections 409 and 467 of the Indian Penal Code. He was tried before the Assistant Sessions Judge of Patna sitting with a Jury. The jury, unanimously found him not guilty. The learned Judge disagreed with this verdict and he states that he considers it grossly perverse and against the weight of evidence. The learned Judge recommends that the accused should be convicted under both sections of the Indian Penal Code under which he was charged, hence this reference in support of which the Assistant Government Advocate has appeared.

The matter is, therefore, one which needs most careful scrutiny.

The accused is a young man of about 23 years of age; his father is dead: he is of respectable family and of reasonably good education having passed the I.A. Examination and having appeared at a recent P.L. Examination; he is married and has three children and has to support besides them and his wife, his mother; he was at the time of the alleged occurrence a probationer official in the offices of the High Court where be was employed as what is known as a despatcher in the vernacular department. We are informed that he was in receipt of a salary of Rs. 35 per mensem. He has a good knowledge of English and is by caste a Kayestha.

Part of his duties was to send away by post or rail packages of records for transmission to other Courts.

In order to pay for the cost of transmission of these parcels by the train (some of course being bulky) the accused was provided with money by the cashier. It was the regular and correct practice for the accused to ask in writing for an advance of cash to meet his requirements. This writing requisition had to be placed before the Deputy Registrar for his approval and initials, signifying his acquiescence. Armed with this, the accused would then quite properly take it to the cashier who would then give the accused the amount of cash authorized by the Deputy Registrar to be paid out. No entry in the cashier''s books is made at that time of the transaction, the requisition being temporarily kept by the cashier as the equivalent of cash until the accused had made up an account for the amount actually expended by himself, had presented that account through the superintendent, vernacular department, to the Deputy Registrar, had had the account passed by the Deputy Registrar, had received it back and brought it back thus passed to the cashier. The cashier on being given the account thus passed by the Deputy Registrar by the accused would obtain from him an endorsement on it that he (the accused) had received cash for the amount of the account and would then enter up his (the cashier''s) cash book and contingent register account book. The original requisition, being no longer of any use, was either destroyed or returned to the accused. The Deputy Registrar, in the evening, examines and checks the cash book with the contingent register account book.

The usual amount of advance made to the accused was Rs. 20.

This was undoubtedly the usual and regular practice, and in working seems a very ordinary scheme; whether it is a good method or not I do not know.

The prosecution story was a very simple one. In April last the accused requisitioned to the Deputy Registrar for Rs. 20; this was allowed in the usual way. It is presumed, in view of what took place later, that he altered this requisition to show authorization for an advance of Rs. 40; for the cashier of the High Court deposes that the accused in fact obtained from him Rs. 40 depositing, as usual, with him (the cashier) the authorization.

On April 23rd the accused submitted his account to the Deputy Registrar for expenses amounting to Rs. 20 only. This account is Exhibit I. It showed six items only when presented to the Deputy Registrar namely:

M. Sr. Rs. a. p. 16-4-24 By freight ... 4 5 7 12 0 V. attached. ... 3 15 6 8 0 V. attached. Tandom hire ... 0 6 0 Cooly charge ... 0 1 0 17-4-24 Ry. freight ... 2 0 4 14 0 V. attached. Tandom hire ... 0 6 0 Cooly charge ... 0 1 0 _________ Total ... 20 0 0

The total of Rs. 20 was placed low down towards the bottom of the account which is written out on an ordinary sheet of foolscap which is headed: "The following are the accounts submitted of the amount advanced to me."

The whole was in the accused''s handwriting. This bill or account is not personally handed by the accused to the Deputy Registrar, but goes through the superintendent of the vernacular department, and it did so go; it was approved by the Deputy Registrar who wrote on it "Passed for Rs. 20" and appended his initials. The vouchers attached are railway receipts from the E.I. Railway and appeared to be in order; the account was then given back to the accused. It is alleged that he then added to it several more items namely:

M. S. Rs. a. p. 18-4-24 Ry. freight ... 1 4 8 11 0 V. attached. ... 2 5 6 5 0 " Tandom hire ... 0 6 0 Railway freight ... 1 15 4 11 0 " " " ... 1 20 4 14 0 " Cooly charge ... 0 1 0 Tandom hire ... 0 6 0

The sums thus added amounted to Rs. 20 which added to the previous Rs. 20 made a total of Rs. 40, for which sum he had received cash. He changed the "20" of the total into "40": it is obvious that there has been such a change, and similarly changed the "20" of the Deputy Registrar''s approval note into "40"; the change is again obvious; he attached railway receipts for the relative amounts alleged to have been expended by him on freight.

All the new matter is in the accused''s handwriting. All the railway receipts of both the old and new items are forgeries and bogus, being written, however, on genuine forms purloined (some time ago) from the E.I. Railway.

The accused then took the account thus altered to the cashier; he seeing that all the railway receipts appeared in order and tallied with the account and not suspicious of any fraud on the accused''s part, accepted it, obtained the accused''s endorsement "Received payment," returned the original requisition for the advance to the accused and then entered up the expenditure of the Rs. 40 in his books. The cashier in due course made over his cash-book (with the account, and of course, no doubt others) to the Accountant who in his turn makes up the contingent register book of Accounts. The accused by means firstly of altering his sanctioned requisition for an advance from Rs. 20 to Rs. 40; secondly, by utilizing and entering up bogus railway receipts; and thirdly by adding items to the account or bill, after it had been passed by the Deputy Registrar for Rs. 20 so as to make it Rs. 40 was thus enabled to pocket the whole of the Rs. 40.

The fraud might well have remained undetected for a long time, the stolen genuine railway receipt forms constituted the key to the easy perpetration of the scheme and, not unnaturally, hoodwinked the officers engaged in routine work of the nature described.

But suspicion became aroused by a fortuitous circumstance.

When, on the evening of the 23rd April the cash-book was brought to the Deputy Registrar in order that he should, as was his practice, check it with the contingent account register, he happened to notice the entry in the cash-book of the sum of Rs. 40 having been paid to the accused. He recollected, however, that he himself had only approved and passed the accused''s bill or account for Rs. 20 and not for Rs. 40; his attention was arrested and he sent for the bill, i.e., Exhibit 1; he at once saw the alterations and amplifications; he sent immediately for the accused. When the accused came the Deputy Registrar showed him the bill. The accused denied having manipulated it. The Deputy Registrar then asked the accused to show what were the contents of the parcels which he (the accused), according to the bill, purported to have sent away on April 18th which was Good Friday and a holiday; but the accused could give or gave no satisfactory explanation.

The Deputy Registrar seeing that there were attached to the bill (Exhibit 1) a number of railway receipts then was proceeding to the railway station to enquire if they were genuine when the accused overtook him, threw himself at his (the Deputy Registrar''s,) feet and begged him not to go to the railway station admitting that he had added all the items under the date of April 18th.

The Deputy Registrar, however, went to the station and there ascertained that none of the vouchers, i.e., railway receipts, attached to the bill had been issued by the railway authorities. The Deputy Registrar reported the matter the next morning to the Registrar, and it was then placed in the hands of the police.

The Deputy Registrar furnished the first information report on April 25th last. It reads: "Babu Akhaleshwar Prasad Sinha is a probationer in the Lower Division in the High Court and used to work as despatcher in the vernacular department. It was one of his duties to send down records to lower Courts by railway parcel. In order to meet expenses he used to have an advance of money with him. After incurring the expenses he prepares a bill and submits it to me. I check his bill with reference to the vouchers attached thereto and then pass it. On day before yesterday viz., the 23rd April, ho submitted to me a bill for Rs. 20. The bill was dated, the 23rd April, and had entries for 16th and 17th of April. The bill was supported by three railway money receipts. I checked the total and passed the bill for Rs. 20. I made an endorsement with my own hand. "Passed for Rs. 20, A.C. 23-4." The same evening, when the Accountant brought the cash-books to me for signature I found an expenditure of Rs. 40 for despatch of records. This created a suspicion in my mind, and I had the bill brought to me. I found my figure "20" changed into "40" and some entries interpolated against the date 18-4-24. These entries were not on the bill when I had passed it. I sent for him. He denied having changed the entries or put in subsequent entries. But I fully remembered that I had passed the bill for Rs. 20 and entries making up a total of Rs. 20 only had stood in the bill when I passed it. So I suspected the bona fides of the man and proceeded to the railway station to enquire about the subsequent railway receipts which he had put down for the date, 18th April. When I passed some distance, he overtook me in the way and made a confession that those railway receipts for 18th April were sham receipts. I recorded his statement, but still went to the railway station and there, on enquiry, I found that not only the receipts for the 18th April, but also the other ones attached to that bill, had not been issued from the Patna railway office. I returned from the railway station at dusk. The next morning, soon after I came to office, I reported the matter to the Registrar. Necessary action may be taken up." The accused was duly charged with two charges. These were: "First that you, on or about the 23rd day of April 1924 at Patna New City forged a certain document purporting to be a valuable security, to wit, a bill of the despatcher of the vernacular department of the Patna High Court with cash payment order (marked Ex. 1) by changing the figure of Rs. 20 into Rs. 40 (and by interpolating the entries in Ex. 1 under date 18th April 1924, and by making false railway vouchers, marked Exs. 2-7, with intent to cause damage or injury to Government or to commit fraud) and thereby committed an offence punishable u/s 467 of the Indian Penal ''Code, and within my cognizance.

"Secondly, that you on or about the 23rd day of April 1924 at Patna New City, being a public servant in the employment of the Government as a despatcher in the vernacular department of the High Court, and in such capacity entrusted with certain property, to wit, the sum of Rs. 40, committed criminal breach of trust with respect to the said property and thereby committed an offence punishable u/s 409 of the Indian Penal Code, and within my cognizance and I hereby direct that you be tried by the said Court on the said charge."

Before the Committing Magistrate the accused made the following statements:

My name is Akhileswar Prasad, my father''s name is Hargauri Prasad. I am by caste Kayestha, and by occupation service. My home is at Mauza Kalabgunj, police station Kotwali, district Bhagalpure. I reside at Patna.

Q.--Do you know English?

A.--Yes.

Q.--Did you present this bill Ex. 1 originally to the Deputy Registrar only for Rs. 20 and subsequently when he passed it for that amount did you alter the figure of Rs. 20 written by him into Rs. 40 and made the interpolations for items covering Rs. 20 per 18th April 1924 and also changed your total for Rs. 20 to Rs. 40?

A.--Yes, I did it.

Q.--Why did you do it?

A.--The usual amount advanced to me was Rs. 20 only but in this bill I drew Rs. 40 as a temporary advance and submitted this bill in adjustment of that amount.

Q.--But why did you not do it with the permission of the Deputy Registrar, and why did you forge the figures?

A.--He had originally ordered an advance of Rs. 20 which also I had changed into Rs. 40, so I had to prepare this bill also for Rs. 40.

Q.--But why did you draw Rs. 40 when Deputy Registrar had passed for Rs. 20?

A.--There were bulky records and Rs. 20 could not have covered the amount.

Q.--But why did you not bring it to the notice of the Deputy Registrar?

A.--I did not do this, and that is my fault.

Q.--Are these railway receipts attached with the bill genuine?

A.--No they are bogus.

Q.--How did you get them?

A.--They were lying in the pigeonholes.

Q--Why did you do all this?

A.--I live on what I earn by, my that month''s pay was pickpocketed and so I had no money (weeps) and I did this.

Q.--What are your educational qualifications?

A.--I have passed the I.A. and appeared at the last P.L. Examination.

Q.--Who are your relations?

A.--They are all respectable.

Q.--How many members have you in your family?

A.--Old mother, wife and 3 children.

Q.--No male member? A.--None.

Q.--Have you any income to support your wife, mother and children?

A.--No, they are all dependent on me. My father died as Tauzi Nabis while still in service.

The accused was committed for trial, and before the Sessions Judge he withdrew substantially all that he had said previously which could be regarded as of confessional character. He now made the following statement:

Q.--Please see this bill, and say in whose handwriting it is?

A.--There is nothing on this bill, Exhibit 1, in my writing. The portion encircled in red ink and marked Exhibit 1(a) is in the handwriting of the Deputy Registrar, Babu Amarnath Chatterji.

Q.--Were you employed in the Patna High Court?

A.--Yes, as a probationer.

Q.--In what department did you work?

A.--I worked in the copying department at first, and then in the second appeal and then as a despatcher.

Q.--Did you work as a despatcher in the vernacular department?

A--Yes, I did.

Q.--Were you despatcher in the vernacular department in April 1924?

A,--I do not wish to answer. I will not answer any further.

Q.--It is necessary to inform you that from your refusal the Court and the jury may draw such inference as it thinks fit.

A.--I do not refuse to answer. I shall put in a written statement through my pleader.

Q.--The law does not provide for the filing of a written statement to take the place of examination by Court. So if you do not now refuse to answer will you reply to the question whether you were despatcher or not in the vernacular department in April 1924?

A.--I was despatcher in the vernacular department in April 1924 but I do not recollect up to what date I so acted.

Q.--I am not certain what you mean?

A.--I was not despatcher the whole time in April.

Q.--Up to what date were you employed in the High Court?

A.--I cannot say up to what date I was employed in the High Court. All I can say is that I did not get my pay for April 1924.1 was suspended in April 1924 before the occurrence.

Q.--What do you mean by before the occurrence?

A.--I cannot say. On what date the Deputy Registrar suspended me I cannot say.

Q.--Shown Ex. 2(1) to 2(7). Say?

A.--I did not file any of them to the Deputy Registrar.

Q.--Did you get these receipts Ex. 2(1) to 2(7) from the railway authorities?

A.--I cannot say, because the receipts are similar in size to what they give on the railway.

Q.--(Shown statement recorded in the lower Court.) Did you make the statement to the Committing Magistrate?

A.--Yes. I made the statement and signed it, as I was threatened by the Deputy Registrar to make a confession.

Q.--When did the Deputy Registrar threaten you?

A.--It was during the trial in the lower Court in the verandah of the Court, when I was coming from the hajat, that the Deputy Registrar threatened me. I was confused by the threat of the Deputy Registrar. I made the statement in the lower Court a day or two after the Deputy Registrar threatened me.

Q.--When were you arrested?

A.--It was perhaps in the month of September 1924. I had no information of the case, and was at my home at Bhagalpur, where I had gone in April 1924 after my suspension.

On being again examined later on, he said:

Q. Did you change the figure "20" in this bill (Ex. 1 shown) to "40" both where there is the payment order of the Deputy Registrar and at the place where the total was struck.

A.--I did not.

Q.--Did you make entries under date 18-4-24 after the bill was passed by the Deputy Registrar (Shown Ex. 1)?

A.--No. I did not.

Q--Shown Exs. 2(1) to 2(7). Did you file these receipts in the High Court?

A.--No I did not.

Q.--Did you receive from the cashier of the High Court an advance of Rs. 40 to meet expenses of despatch of records?

A.--I never received an advance of Rs. 40 (forty). I usually received an advance of Rs. 20.

Q.--Can you say when you got the last advance from the cashier of the Court?

A.--I do not remember.

Q.--How were advances made?

A.--Sometimes advances were made under the order of the Deputy Registrar, and sometimes I had submitted my bill, and cash payment was made.

Q.--Who received the advances?

A.--The requisition passed by the Deputy Registrar was sent by him to the superintendent, who again sent it to the Cashier, and the latter sent for me and I took the advance made from him.

Q.--How was the advance adjusted?

A.--It was adjusted by the presentation of bill of expenses incurred. I used to present my bill to the Superintendent of the Vernacular Department who sent it to the Deputy Registrar to be passed.

Q--Do you wish to adduce any evidence.

A.--No.

It may be mentioned that the accused was suspended directly he fell under suspicion, and then appears to have disappeared. His home was at Bhagalpur, but the police were unable to find him either there or at Patna or elsewhere; he was at last arrested at Patna Junction railway station in the 3rd class waiting-room (mosafirkhana) with his body covered with cloth.

The learned Judge appears to have summed up to the'' Jury very clearly and well. The jury, as has been mentioned be fore, returned a verdict of not guilty. The Judge, in his reference to this Court, observes that he had at once no doubt that the verdict was perverse and that he therefore, in order to make sure that the Jury had not made some mistake put some questions to them and placed both them and the answers on record. They are as follows:

Gentlemen, what is your verdict in respect to each of the charges u/s 467. and 409, I.P.C.

A.--The Jury are unanimous that the accused is not guilty under each section.

Q.--Is it your opinion that the bill, Exhibit 1, is not in the handwriting of the accused?

A.--We are unanimous that it is not.

Q.--Is it your opinion that the figure

"20" in the bill has not been altered to "40"?

A.--Our opinion is unanimous that the accused did not make the alteration.

Q.--What is your opinion in regard to the entries under date 18--4--24? Whether the entries were made after the pay order of Deputy Registrar?

A.--No, the entries were not made after the passing order of the Deputy Registrar. This is our unanimous opinion.

Q.--What is your opinion in regard to the receipts Exhibits 2(1) to 2(7) as to whether they are genuine or bogus?

A.--We are doubtful whether the receipts are bogus or genuine.

Q.--Is it your opinion that the accused did not submit the bill, Exhibit 1?

A.--We are in doubt whether the accused submitted the bill.

Q.--What is your opinion as to whether the accused was given an advance of Rs. 40 some 8 or 9 days previous to the 23rd April 1924 or not?

A.--We all doubt if the advance was given. There is no paper to show that this amount of Rs. 40 was given to the accused.

It is necessary to see how the case made out for the prosecution was supported,

The system under which the accused obtained advances of money, and under which he was supposed to pay cash out and to account for such payments, appears to have been proved conclusively by witnesses whose credibility is really beyond criticism; the Deputy Registrar, a gentleman of high standing and repute; the Superintendent of the Vernacular Department, another prominent official of the High Court; the Cashier of the High Court, and the High Court Accountant who are both high, responsible officers.

The fact that the Bill or account (Exhibit 1) was in the accused''s handwriting seems to have been proved beyond any possibility of doubt by the same officials with or under whom the accused worked. The Deputy Registrar deposes quite clearly that he knows and Can identify the accused''s handwriting, and that the whole of Exhibit 1 (i.e., both original and added entries) was in the accused''s handwriting. The Superintendent of the Vernacular Department definitely swears with certainty that the accused brought the bill or account (Exhibit 1) to him when it totalled Rs. 40; the Accountant also definitely identifies the account as being in the accused''s handwriting. Apart from the statements made by the accused himself, to which reference must be made later, it would seem to me that the preparation by the accused of Exhibit 1 was clearly brought home to him. But the jury unanimously was of the opinion that the account, Exhibit 1, was not in the accused''s handwriting.

There was, however, no suggestion that these officials had the slightest ill-feeling against this unfortunate young man and it is to me difficult to assign any good reason why the Jury could have thought that the account (Exhibit 1) was not in the accused''s handwriting. Then, as to the alteration of the figures 20 to 40, no one, of course, can possibly help observing that there has been an alteration; no one again could, in human probability, have actually seen who made the alteration; but that the bill was first presented to the Superintendent of the Vernacular Department and to the Deputy Registrar with a total of Rs. 20 and passed back to the accused with that total; that it was presented by the accused with a total of Rs. 40 to the Cashier and was with this total entered up in the books and placed in the records seem facts proved by the officials'' mentioned'' beyond any doubt. Nor is it to my mind intelligible how any one except the accused could have so altered or could have had any interest in so altering the account. The jury, however, was unanimously of opinion that the accused did not make the alteration. I am again at a loss to understand the reason for such a view.

Then again with regard to the addition of the numerous items of expenditure which purported to refer to despatches made on April 18th, and the aggregate of which brought the total of the bill up to Rs. 40. Most of the observations which I have made with regard to the changing of the figures 20 to 40 apply with equal force here; it is sworn by the Superintendent of the Vernacular Department and by the Deputy Registrar that, when the bill (Exhibit 1) was originally presented to them, these later items were not then on the account; when presented to the Cashier they were included, and the additions are definitely alleged to have been made before they were again seen by the Superintendent, Vernacular Department, and the Deputy Registrar. That these later as well as the earlier entries were all bogus, i.e., related to no real transactions of despatch, was conclusively proved not only by the railway authorities, but by the clerk who kept the register of the despatch of records.

The jury, however, expressed the view that these additions, dated April 18th, were on the account when first seen by the Deputy Registrar: that is to say that the additions were not made after the Deputy Registrar had approved the account but before he had done so. But both the Superintendent and the Deputy Registrar are positive about this question and there is no conceivable reason for doubting their sworn testimony; nor are they persons in a position in which it can well be seriously contemplated that they would depose to such a fact if they could not really recollect the circumstances. I cannot understand why or how the jury arrived at the view at which they did on this point.

Then as to the railway receipts i.e., the vouchers attached to the account Exhibit 1. To my mind it was conclusively proved that all these railway receipts, although on real railway: forms, were fraudulently entered up.

The account Ex. 1 contained:

16--4--24 Rs. ... 7 12 0 " " ... 6 8 0 17--4--24 ... 4 14 0 18--4--24 " ... 3 11 0 " ... 6 5 0 " ... 4 11 0 " ... 4 14 0

These were supported by vouchers i.e., railway receipts No. I 98062 (for Cuttack), I 98047 (for Dhanbad), I 98048 (for Monghyr), I 98011 (for Gaya), I 98026 (for Cuttack), 198027 (for Chapra), I 98038 (for Darbhanga). The evidence of Mr. Jhauri Lal, the Head Parcel Clerk for the last 11 years, at Patna Junction railway station and a most respectable gentleman, proved to my mind conclusively that all these forms formed parts of a book of 100 forms (Nos. I 98001 to 98100) purloined in February or March 1924 from the railway station; that the forms had not been filled up by, i.e., were not in the handwriting of any person attached to his office and that no such parcels as were referred to in these forms were ever in fact despatched. The register kept at the High Court of despatched parcels also showed the despatch of none of the parcels mentioned in the forms. It does not seem to have been sought definitely to prove that the forms had been in fact filled in by the accused: it was perhaps thought that his direct confession made before the committing Magistrate that he had done so rendered any further action on this point unnecessary. The jury, however, stated that they were doubtful whether the receipts were genuine or bogus. I am entirely unable to understand why or how the jury could properly have entertained the least doubt that these forms had been filled in with entirely fictitious particulars. There were two further direct questions put to the jury by the learned Assistant Sessions Judge: the first was as to whether the accused had submitted the account Exhibit 1 at all; the jury were in doubt as to whether he had done so. The second was as to whether the accused had in fact obtained the advance of Rs. 40--: the jury again expressed doubt as there was no paper to show that that amount had been advanced to the accused. With regard to the 1st question it is difficult to see how there could be any doubt that the accused did present the account Ex. 1 unless we are to disbelieve the evidence of the Superintendent, Vernacular Department the Deputy Registrar and the Cashier of this Court; these gentlemen are not persons whose word could be brushed aside without most convincing and certain grounds for doing so which do not exist in this case.

With regard to the advance of Rs. 40 the jury appears to have discarded, without any good reason the testimony of the cashier, the whole of the evidence as to the system of requisition and of the return of the original requisition to the accused on its destruction, the whole of the evidence of the passage of this item of Rs. 40 through the books of the High Court and, of course, the account Exhibit 1 itself.

I am unable to see any, reason for so strange a conclusion.

I now turn to the several statements, whether they were called admissions or confessions, made by the accused. The first of these statements is deposed to by the Deputy Registrar: when the Deputy Registrar noticed that an advance to the accused of Rs. 40 had been entered in the cash-book and remembered that Rs. 20 only had been sanctioned by him he seat for the accused who denied having made any alterations in the account Ex. 1: he could give no satisfactory explanation of what records he had despatched on the 18th April: the Deputy Registrar was then going to the railway station to enquire into the vouchers (i.e., the railway receipts) when to use his own words "The accused followed me and overtook me on the way. He admitted that he had made the entries of the 18th April subsequently, threw himself at my feet and requested me to come back." This was the Deputy Registrar''s evidence in the Sessions Court,

Before the Committing Magistrate his evidence reads, "I then sent for the accused and enquired what he had done. He said the entries stood as they were put up before me previously to be passed. Later, however, he admitted that he had interpolated entries of 18-4-24 for items covering another Rs. 20. He admitted having received Rs. 40.... He admitted having altered Exhibit 1(2) from Rs. 20 to Rs. 40 and he had also changed his total."

For reasons, to which I will refer later, the Deputy Registrar was not cross-examined in the Sessions Court, and, as is often and often properly the case, cross-examination was declined before the Committing Magistrate.

The Superintendent, Vernacular Department, was present at the interview to which I have just referred. He says "The accused was there and he was asked as to the alteration. He at first denied having made the alteration, but subsequently admitted having made it. The Deputy Registrar asked the accused to show him from the despatch register whether the records for which he submitted a bill were actually sent. The accused brought the despatch register. He could not show from the despatch register that any record as shown in the bill was sent by railway parcel. The Deputy Registrar then went towards the railway station. To the Jury the witness said. "The accused admitted having made the interpolation shortly after his denial, and it was in my presence." In the Magistrate''s Court this witness said. "The accused was there then. The Deputy Registrar asked the accused whether he had made the alteration. He at first denied, then made a statement admitting the alteration. The Deputy Registrar himself left for the railway station to make an enquiry." It will be seen that it is not very clear from these accounts whether the accused confessed what he had done before the Deputy Registrar was going to the railway station. As I read the Deputy Registrar''s evidence in the Sessions Court, the impression it conveys to my mind is that it was only when the Deputy Registrar was going to the railway station that the accused, falling at the Deputy Registrar''s feet, admitted his guilt. From the Deputy Registrar''s evidence, however, before the Magistrate, this is not so clear from the evidence of the Superintendent, Vernacular Department, it would seem that accused confessed before the Deputy Registrar started for the railway station.

The Accountant who had taken the High Court account books to the Deputy Registrar and who was also present when the accused was questioned by the Deputy Registrar deposed as follows. "The accused admitted he had received the payment (of Rs. 40)". in cross-examination the witness stated that he had said before the Magistrate that the accused at first denied, but when the Deputy Registrar told him that he (the Deputy Registrar) would take severe steps and he would be punished if he did not state the truth then the accused admitted having forged the document. The witness added that what he had then said was quite correct. As a matter of fact what this witness had said was (accused) at first said he received Rs. 40 as passed by the Deputy Registrar, but when the Deputy Registrar told him that we would be severely punished if he did not tell the truth: then the accused admitted that he had forged the papers and received Rs. 40 from the Cashier. He asked the Deputy Registrar to excuse him as that was his first offence." This account corroborates what was stated by the Superintendent, Vernacular Department. It seems perfectly clear to my mind that the accused did confess his guilt to the Deputy Registrar and that the Superintendent, Vernacular Department and the Accountant heard him do so. The learned Counsel, who has appeared for the appellant here, has urged that the confession was not altogether voluntary having been obtained under pressure from the Deputy Registrar who was in an authoritative position over the accused; and that in consequence this confession should not properly have been, regarded as admissible in evidence. There is a good deal to be said in favour of this contention: if a person, who is suspected of an offence, is examined (i, e., asked questions) by a person in direct authority over him and if it is only in consequence of an inducement by way of benefit e.g., if you confess you shall go free) or a threat (e.g., if you do not tell the truth or if you do not own up you will be severely punished) that the person under suspicion makes self-incriminating statements such arc, broadly speaking, not receivable in evidence because they are not in law regarded as strictly of a voluntary nature but as having been, perhaps, induced in the one case by a false hope and in the other by fear. On the other hand a merely moral exhortation to tell the truth is in no way objectionable. For the above reasons I am inclined to think that, in view of the evidence given to the effect that the Deputy Registrar who was indubitably in an authoritative position relative to the accused, did tell the accused that he would be severely punished if he did not tell the truth, what the accused said by way of confession to the Deputy Registrar may not be admissible. There is however next the statement made by the accused to the Committing Magistrate: it has already been given in extenso and I need not repeat it now. The accused endeavours in the Sessions Court to explain away his having made this statement by saying that he "was threatened by the Deputy Registrar to make a confession" and that this threat took place "during the trial in the lower Court in the verandah of the Court when I was coming from the Hajat." The accused said that he was confused by the threat of the Deputy Registrar and made the statement which he did in the lower Court a day or two after the Deputy Registrar''s threat.

In my view this is a wildly improbable story: but it was not tested in any way owing to the fact to which I have already referred namely that the Deputy Registrar was never cross-examined: the reasons for his not being cross-examined are somewhat peculiar and necessitate explanation.

It appears that the Deputy Registrar was examined on January 3rd; his examination, in-chief did not conclude until about 5 minutes past 5 in the evening: it was a Saturday; the learned Assistant Sessions Judge wanted the accused''s pleader to cross-examine the Deputy Registrar forthwith: the Assistant Sessions Judge seems to have thought that as the Deputy Registrar was a very busy official the public work would suffer if the Deputy Registrar had to appear at the Sessions Court again on the 5th i.e., the following Monday. The accused''s pleader protested against being compelled to go on at that late hour and on the Judge insisting declined to cross-examine the Deputy Registrar. In his letter of reference the Assistant Sessions Judge says that he did not consider the pleader''s objection was a bona fide one as the cross-examination of the Deputy Registrar was not expected to last long. We do not find from the order sheet whether the convenience of the jury or of others other than the Deputy Registrar was consulted as to the continuance of the sitting after the usual hours: nor am I clear that the cross-examination of the Deputy Registrar would have been short; he might have been interrogated at some length upon various subjects e.g., the system of advances, the circumstances under which the confession to him was made and as to the alleged threats made by him to and against the accused prior to the accused''s statement in the Magistrate''s. Court.

But it is indeed extremely doubtful if it was open to the Assistant Sessions Judge to call on the accused''s pleader at such an hour to commence (and apparently with the intention that he should conclude) the cross-examination of such an important witness as the Deputy Registrar, and, then, notwithstanding the pleader''s protest and without his assent, to discharge the Deputy Registrar on the ground that the pleader declined to cross-examine the Deputy Registrar. The ordinary hours for the sittings of Courts are laid down by rule; and 4-30 p.m. in January is the normal closing time I do not say that it is impossible to continue to sit after that time but not I think unless with the acquiescence of those appearing for parties.

On may see the basis for my view which I am convinced is a reasonable and proper One indicated in such cases as Sadasiv Singh v. Emperor (1914) 41 Cal. 299 and H. Bevis and Co. Vs. Ram Prasad, . In the former case at a Sessions trial for murder, counsel for the defence applied, after the examination in chief of the 1st P.W., for postponement of the cross-examination of the witness till the next day on the ground of his unpreparedness; but he did not ask for an adjournment of the trial itself; the application was refused. The counsel thereupon retired from the case; the result was that at least 4 important prosecution witnesses were not cross-examined at all and the later P. Ws. but inefficiently cross-examined; whilst it seemed possible that had the earlier witnesses been cross-examined matters might have been elicited which could usefully have been employed in the cross-examination of the later witnesses. Woodroffe and Sharffuddin (JJ.,) held that the refusal was unreasonable and ordered a new trial by another Judge.

In the latter case the rules provided that the Court should normally close at 4-0 p.m. A certain Small Cause Court Judge however, sat on till 5-0 p.m. and then called on a fresh case: the defendant was present but the plaintiff was not the Judge dismissed the plaintiff''s claim: Piggot, (J.) held that he could not rightly do so.

I think it must be obvious that for practical purposes it is quite improper for a Judge to insist on sitting beyond the prescribed hours unless of course, the lawyers in the case agree. The lawyers are professional men who have to regulate their interviews in accordance with the regular and prescribed hours of the Court''s sittings and I do not think it is reasonable except for really unavoidable necessity or for the agreed convenience of all concerned that a Court should insist on sitting at neither prescribed nor suitable.

It is true that in the present case it appears from the order sheet that on January 6th the Public Prosecutor suggested that the Assistant Sessions Judge should recall the Deputy Registrar in order to offer to the accused''s pleader an opportunity of cross-examining him. The order sheet at this juncture reads "The vakil for the accused Mr. Mathura Nath Sinha says that he himself thought of asking the Court for this, but he does not wish to cross-examine the Deputy Registrar because some other witnesses have already been examined after the Deputy Registrar and he does not propose to cross-examine the Deputy Registrar now. Since the defence does not wish to avail of the facility which was proposed to be given to cross-examine the Deputy Registrar the Court does not think it necessary to recall the Deputy Registrar." I think it is possible that this incident, i.e., the action of the Assistant Sessions Judge in insisting on the accused''s pleader cross-examining the Deputy Registrar on the 3rd January after the usual hours notwithstanding his protest"--an incident which I feel was rather unfortunate--may have had a very considerable effect upon the Jury; but although I feel the difficulty in which the accused''s pleader was placed, both on the 3rd and on the 6th, I think it was unfortunate ''again that the pleader on that latter date refused to cross-examine the Deputy Registrar; for he had then considerable material for so doing.

I think again that it is possible that the fact that the Deputy Registrar was not in the upshot cross-examined at all may also have affected the Jury''s attitude and their verdict.

The learned Counsel for the appellant suggests that the real reason why the accused made a confession before the Magistrate was because, having been induced to confess to the Deputy Registrar by threats of punishment, he felt that he would be in an incongruous position if before the Magistrate he adopted quite a different attitude; although counsel points out also that owing to the entire absence of cross-examination of the Deputy Registrar the accused''s allegation that he was threatened by the Deputy Registrar in the verandah of the Magistrate''s Court a day or two before he in fact made his confession before the Magistrate stands, however improbable it may sound, uncontradicted.

He also suggests that as the Deputy Registrar was not cross-examined, and, as the counsel puts it, the accused''s pleader was given no proper opportunity to cross-examine the Deputy Registrar, the Deputy Registrar''s evidence must be regarded as altogether inadmissible. The learned Counsel, however, and in my opinion wisely, does not ask on these grounds for a new trial; nor could I, had he done so: have felt it desirable to order one. Although I think the Judge was wrong in his procedure on the 3rd, I do not think there was sufficiently suitable opportunity given for cross-examination of the Deputy Registrar on the 6th.

I do not, therefore, feel that there is any ground for contemplating the excision of the Deputy Registrar''s evidence. I am not impressed with the suggestion that the accused thought his position would be adversely affected if he made before the Magistrate a statement totally different to that which he had made before the Deputy Registrar; for the same reasoning would apply, only with even greater force, at his appearance before the Sessions Court.

I certainly cannot credit the absurd story of the Deputy Registrar having access to the accused when in custody, and threatening him in the verandah of the Magistrate''s Court-house.

I am unable to understand by what processes of thought the Jury arrived at their verdict. I can only imagine that they may have been moved by sentiments of compassion which, however laudable though they may be, could not justify a verdict of not guilty in the face of what I regard as overwhelming evidence to the contrary effect. If, however, their view was prompted by any feeling that the course of the trial resulting in the non-cross-examination of the Deputy Registrar had materially prejudiced the accused''s defence, they certainly gave no indication that such was their opinion; nor do I think that any such considerations should in this case materially have borne upon their verdict.

I have on more than one occasion stated from the Bench my reluctance to interfere with the findings of a jury and I am still more loath to do so in a case where that verdict is one of not guilty. But sometimes one is bound to correct what is wrong and this is, I am sorry to say, one of those cases. I have no hesitation in this case, after having considered very carefully the entire evidence and after having given due weight to the opinions of the Assistant Sessions Judge and the jury in deciding that the recommendations in this Reference must be accepted; that the verdict of the jury must be set aside and the accused convicted of both the offences with which he was charged.

There remains only the question of sentence and here I am conscious that one must feel a certain sympathy with the accused''s positions; but his age and the nature of his offences preclude his being dealt with under those provisions of the Criminal Procedure Code which are applicable to first offenders.

It is, however, not unimportant to notice the young man''s age (23) and his heavy family obligations which entailed the maintenance of wife and three children besides, owing to his father''s death, his mother; his salary was very small and it is hard to see how he could well support such a family on it; and, if it is true that he had had, as he says, his previous month''s salary stolen, he was no doubt hard pressed and a somewhat easy target for the arrow of temptation. It is sad to see a young man on the threshold of his career and life in such a predicament; but I feel sure that I am doing right in taking a lenient view, of what has taken place. The learned Counsel for the accused tells us that his client has already been in custody for some months, i.e., I gather since his arrest in September; and I think that that custody is probably sufficient punishment for him: but he must undergo simple imprisonment for one day. I hope that in future he will do his best to retrieve his name and error and that he may have in future a change of doing so.

Kulwant Sahay, J.

I agree.