STATE OF MAHARASHTRA Vs. ABU ISMAIL MERCHANT ACCUSED

JUDGEMENT

(1.) THE accused Abu Ismail was tried in Sessions Case No. 21 of 1957 for offences under S. 411, S. 467, and S. 471 read with S. 467 of the Indian Penal Code. The accused was tried before the Additional Sessions Judge, Greater Bombay, with a common jury. The jury brought in a majority verdict of 8 to 1 against the accused for the three offences charged against him. The learned Additional Sessions Judge accepted the verdict of the Jury and convicted the accused and sentenced him to suffer rigorous imprisonment for two years for the offence under S. 411, to rigorous imprisonment for five years and a fine of Rs. 1,000/- and in default of payment of fine rigorous imprisonment for six months in addition for the offence under S. 467, and to rigorous imprisonment for five years for the offence under S. 471 read with S. 467. All the substantive sentences were directed to run concurrently. The accused has appealed to this Court.

(2.) THE prosecution case was briefly this. There is a firm Hiremani and Jaglur and Co. , carrying on business in oil and flour at Hubli in the district of Dharwar. That firm is the proprietor of the Sangameshwar Oil and Flour Mills. The firm of Hiremani and Jaglur and Co. had business dealings with K. Umakant in Bombay. About the month of May 1956, Hiremani and Jaglur and Co. , which will hereafter be referred to as the Hubli firm, stood indebted to K. Umakant in the sum of Rs. 16,000/ -. On 21-5-1956, the Hubli firm obtained from the Canara Industrial and Banking Syndicate Ltd. , a demand draft for Rs. 8,000/- from the branch office of the bank at Hubli, and semi it by ordinary post with a letter, dated 21-5-1956. The letter was addressed to K. Umakant. It appears that this draft with the enclosing letter did not reach K. Umakant. On 26-5-1956, K. Umakant wrote a letter to the Hubli firm informing the latter that he was awaiting the draft for Rupees 8000/- "as per wire and call", but the same was not received till 4 p. m. that day. This letter was replied to by the Hubli firm by letter, dated 30-5-1956. The Hubli firm referred in that letter to a telegram informing K. Umakant that a draft on the Canara Industrial and Banking Syndicate Ltd. , No. 075509, dated 21-5-1956, had already been despatched on 21st May, 1956, and the balance of Rs. 5,000/- was sent on 27th May. The Hubli firm further stated that they were surprised to learn that the draft for Rs. 8,000/- was not received by K. Umakant. They asserted that it was posted on 21-5-1956 with an enclosing letter. The letter then proceeded to state:

(3.) THE conviction of the accused having been recorded by the learned Additional Sessions Judge in a trial held with the aid of a jury, this Court is incompetent to interfere with the verdict of the Jury unless the verdict is shown to be erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him. We have, therefore, to consider in the first instance whether the verdict of the jury is vitiated as a result of any misdirection or non-direction amounting to mis-direction which has prejudiced the accused.