Suchit Raut vs Emperor

Macpherson, J.—This rule has been issued to consider the conviction of and sentience upon Suchit Raut alias Bikramajitya who has been convicted by a Deputy Magistrate of Chapra u/s 420 read with Section 511, I.P.C., and sentenced to 18 months'' rigorous imprisonment which term was reduced on appeal to one year.

The facts alleged were that on 23rd July last the petitioner made over to the Chapra. Post Office a letter marked:

Insured for rupees nine hundred, Rs. 900, and addressed to Bikramajitya at Naihati, giving the sender''s name as Ramlagan Raut, who is his father and insuring the letter for Rs. 900. According to the Post Office rule it was enclosed in another cover which two days later reached Naihati intact and on the 27th the petitioner went to the post office to take delivery. There he made difficulties in respect of signing a receipt until he should see the contents, and when eventually he opened the cover he pointed out that it contained nothing except three pieces of blank paper, accused the clerk and others of having stolen his money, despatched a telegram to the Sub-Divisional Magistrate of Barrackpore complaining that his remittance of Rs. 900 had been tampered with and only blank papers were found inside the cover and demanding an inquiry, lodged at the police station a case against two persons unknown of theft of Rs. 900 from this insured letter giving the details as three Government currency notes of Rs. 100 and 60 such notes of Rs. 10 and in addition made a long statement of claim to the Inspector of Post Offices. The Postmaster of Naihati meantime wired to Chapra and after communication among themselves the postal authorities eventually made over the matter to the police of Saran. It was alleged that the petitioner had not enclosed the notes for Rs. 900 in Ms letter and that his claim against the post office was entirely false. The Court framed charges u/s 420 read with Sections 511 and 419, I.P.C., and Section 64, Post Office Act. The case against him of attempt to cheat is found by the lower Court to have been conclusively established. A particularly strong point against the petitioner was that three notes of Rs. 100 and 60 notes of Rs. 10 would have weighed at least 60 rattis whereas the original which her resented weighed only 17 rattis and was sent at a postal charge of Rs. 1-2-0 whereas the postal charge for a cover containing 63 notes would have been much more. Palpably the intention of the accused was fraudulently to secure compensation of or at least not exceeding Rs. 900 from the post office for his alleged loss He was acquitted by the trial Court of the second and third charges.

The only points which Mr. S.P. Varma has advanced in support of the rule are: (1) that before this prosecution was entered upon his first information of theft should have been inquired into; (2) that he should have been prosecuted only u/s 64, Post Office Act 6 of 1898, and not under the Penal Code for an attempt to cheat, in which case he would only have been liable to a fine extending to Rs. 500; and (3) that the sentence is excessive. In my opinion there is no substance in any of these pleas.

As regards the first contention, the fact as to the case of theft is that it has been kept pending until the disposal of the present prosecution. The practice in respect of prosecutions u/s 211 is referred to in support of the contention that the petitioner ought not to have been prosecuted until his own case had been disposed of. But in the first place, the practice; that a complainant or first informant should not be prosecuted u/s 211 until his complaint or police case had been disposed of is not based on any statute and is merely a preceutionary rule of safety in respect of a special class of criminal cases. Then, while a prosecution u/s 211 might in certain circumstances be delayed or even set aside in accordance with this practice, the practice could per se be no ground for setting aside a conviction. For there is no illegality in the trial. The practice itself is also one which should be subjected to the strictest limitation. In the second place, there is no real analogy between a prosecution u/s 211 and the prosecution to which the petitioner was subjected; for instance, where there are counter cases in respect of a riot one of the cases must be taken up before the other and it is in the discretion of the Magistrate which is to be first inquired into.

Similarly, whereas hare the petitioner set out one version and the post office another it was in the discretion of the Magistrate to take up that case first which appeared to him to be true, from which it follows that the other may be kept pending. There is here no irregularity in any part of the trial and certainly there has been no resulting prejudice of failure of justice. The plea fails. As to the second point : it is based on the principle that where a particular set of acts or omissions constitute an offence under the general law and also under a special law, the prosecution should be under the special law and the decision in Kuloda Prosad Majumdar v. Emperor 11 C.W.N. 100 is quoted in support. But the proposition is confined to cases where the offences are coincident or practically so. The difficulty in the appellant''s way is that Section 64, Post Office Act, merely makes punishable:

a person who being required by the Act to make a declaration in respect of any postal article to be sent by post or the contents or value thereof makes in his declaration any statement which he knows, or has reason to believe to be false or does not believe to be true.

In the present case the charge of attempt to cheat contains additional ingredients supported by additional evidence beyond those required for a conviction u/s 64, Post Office Act. Assuming therefore that 8. 64 is a minor offence to an attempt to cheat the post office it will not be illegal to try an accused for the major offence only, Furthermore, it is by no means clear that an offence u/s 64 has been committed. Reference has been made to the rules framed u/s 32, Post Office Act, with respect to the insurance of postal articles and in particular to Rules 118,125,130 and 132; but though an article, which it is proposed to insure, must be presented at the post office with , the amount for which the sender wishes it to be insured clearly written on the cover, as was done by the petitioner, that writing cannot be held to constitute the sender a person who is required by the Post Office Act or even by the rules to make a declaration within the meaning of Section 64 in respect of the article.

The facts that currency notes being sent by post are compulsorily insurable and that articles cannot be insured beyond the real value of their contents have no significance in this regard In any case, u/s 72, Post Office Act, a Court cannot take cognizance of an offence punishable u/s 64 except on complaint by the postal authorities and no such complaint was filed. For these reasons the second contention also cannot prevail.

As to the third contention it is based upon the difference between the punishment u/s 64 of fine which may extend to Rs. 500 and the punishment which has been awarded. But Section 64 is obviously no criterion for the punishment of the completed offence of attempt to cheat. When he insured his letter at Chapra for the purpose of defrauding the Government the petitioner had proceeded but a little way in the execution of his purpose. The sentence of one year''s rigorous imprisonment is by no means excessive, particularly having regard to the fact that it was reduced in the Sessions Court by reason of "an earnest appeal for leniency. The application is without merits and I would discharge the rule.

Dhavle, J

I agree.