Gobardhan Chandra Mandal vs Kanai Lal Mandal

Chunder, J.—This Rule was issued at the instance of a complainant, whose case u/s 420 of the Indian Penal Code, against the two accused opposite parties, ended in an acquittal at the appellate stage by the Additional Sessions Judge of 24-Parganas, setting aside their convictions and sentences by a magistrate, first class, of Alipore.

Briefly, the facts as alleged were that Kanailal Mandal, the first accused, came and wanted a loan of Rs. 4,000 for redeeming some 70 pieces of sovereigns, which he had pledged with another person. The further prosecution case in the evidence is, that a few days after this the complainant met the second accused who is the father-in-law of the first accused, and asked him to advance the loan himself, but as the second accused pointed out certain difficulties, the complainant advanced the loan on the security of the second accused person. A document is said to have been executed which has been exhibited. In that document it is mentioned by the first accused, the second accused not being a party to it, that he was taking the loan for the purposes above-mentioned and that he would redeem the sovereigns and bring them to the complainant, who after selling them and deducting the amount of the loan would hand over the balance to him. It appears that the sovereigns were not brought to the complainant by the first accused, and when the second accused was approached he asked for sometime to pay the money. It further appears from the evidence on the prosecution side, that the first accused at one stage subsequently denied the loan altogether. About a week after the loan, the complainant came to court charging both the accused persons u/s 420 of the Indian Penal Code.

It is unnecessary to enter at length into the defence story, as the main contentions on which this revision will have to be determined will be questions of law. It may be mentioned here in order to make the subsequent discussion clear, that at one stage of the defence cross-examination the suggestion was thrown out, that perhaps the complainant wanted to purchase stolen sovereigns and the accused was merely an intermediary who was given the money to bring the same. No such transaction is alleged by the complainant. As is usual in our courts here, these vague suggestions were never sought to be established by any evidence, and proceedings went on in the court on the basis of what are mere suggestions without any basis on facts. This has been repeatedly condemned, but in spite of such condemnation the learned Additional Sessions Judge of 24-Parganas has entered at length into a discussion of it. He should know that a suggestion must be based on evidence legally adduced before the court or on what can reasonably be inferred from such evidence. Suggestions can never take the place of actual proof of facts. If it was the defence case, that something actually took place, or some fact actually happened other than that alleged, such fact must be proved in the ordinary way laid down in the Indian Evidence Act, either by defence evidence or by eliciting same from prosecution witnesses. It cannot be proved by merely making a suggestion from the bar to a witness in the box. No other method of proof is known in law except what is laid down in the Evidence Act as regards evidence. On such suggestion, the learned Judge in the present case has worked up an elaborate theory, which might have done credit to a defence muktear giving expressions to a very vivid imagination, but certainly does no credit to a court. The learned Judge came to the conclusion on this suggestion, that the complainant must have made over the money to the first accused person in order to purchase stolen sovereigns for himself, with the first accused as a sort of middle-man. The learned Judge has made two observations on this. His first observation is, that the learned magistrate should have asked the accused u/s 342 of the Code of Criminal Procedure what he had got to say about the suggestion thrown out by his lawyer. The learned Judge is not aware, that it is not a magistrate''s business to ask the accused anything about any suggestion made by his lawyer. The learned magistrate''s business is to ask the accused questions generally on the case, and if the magistrate is going to rely upon any piece of evidence in particular against the accused, to give the accused an opportunity of explaining the same at the time of his examination u/s 342. Therefore, instead of trying to teach the learned magistrate his duties u/s 342 of the Code of Criminal Procedure, the learned Sessions Judge would have done well to confine himself to a proper appreciation of proved facts.

The second observation with reference to this suggestion that appears in the learned Judge''s judgment is, that if the prosecution had come out itself with such a case then perhaps the accused could have been convicted u/s 406 of the Indian Penal Code for criminal breach of trust. If, according to the learned Judge, an offence u/s 406 of the Indian Penal Code was the natural conclusion from facts proved in the case, then the learned Judge certainly did not act in accordance with the law in acquitting the accused. If he considered that the accused had not sufficient opportunity to meet such a case his duty was not to acquit the accused but remand the case for re-trial after framing such a charge. If he found, on the other hand, that the accused had ample opportunity to meet such a case though it did not form the subject-matter of the charge which was u/s 420 of the Indian Penal Code, then he could have proceeded, if justified by facts proved, in convicting the accused of such a charge though not actually charged. The authority for this will be found in the decision of the Judicial Committee in Begu v. The King-Emperor (1925) ILR 6 Lah. 226 : L.R. 52 I.A. 191.

In the present case, what the learned Judge has done would have compelled me to send the appeal back for a proper re-hearing, but in the present case as Mr. Dutta on behalf of opposite party No. 1 has rightly pointed out, a charge u/s 406 of the Indian Penal Code cannot, even if the learned Judge''s unwarranted findings had been accepted, be sustained in law. The reason is very obvious. Breach of trust by breach of a contract must be by breach of a legal contract. If the object or purpose of a contract is something which is illegal in law, then the words "or "in violation of a contract" in Section 405 of the Indian Penal Code are not satisfied. Contract, in Section 405 of the Indian Penal Code, refers to a contract which is legal. Contract for a criminal purpose, namely, knowingly receiving stolen property by clandestinely purchasing same will not, under the Indian Contract Act, be a legal or valid contract. Therefore, in the present case, even if the learned Judge had been right in his conclusion on facts, the court would not have been justified in convicting the accused u/s 406 of the Indian Penal Code.

Mr. Mookerjee appearing on behalf of the Petitioner has rightly pointed out that; as the learned Judge''s finding about criminal breach of trust is based upon nothing except the wild suggestion thrown out during cross-examination, and the learned Judge should go into the proved facts of the case, and that the fact that would appear as undisputed now is that the first accused has himself signed a representation which is accepted now as false. Mr. Dutta on behalf of opposite party No. 1 has rightly pointed out, that the evidence of the complainant himself is, that it was not the false representation of the accused which induced him to part with or deliver the property. The inducement was the guarantee given by the father-in-law. Mr. Mookerjee has argued, that it might be that the false representation induced the complainant, and that inducement might have been further supported by the guarantee of the father-in-law. If any piece of evidence is capable of two perfectly legitimate inferences, it is the corner stone of English jurisprudence accepted in this country, that the interpretation in favour of the accused must be accepted.

Under the circumstances, Mr. Dutta''s interpretation being a perfectly legitimate one cannot but be accepted. It is essential in a charge of cheating that the inducement must be due to the false representation itself. If the false representation does not induce, but something else does so, then the fact that the false representation was also made does not make the person who made such a representation guilty of the offence of cheating.

Under the circumstances, the acquittal though based on entirely wrong reasons given by the learned Additional Judge cannot be set aside in this Revision Case. The Rule is accordingly discharged.