ABINASH CHANDRA BOSE Vs. BIMAL KUMAR SEN

JUDGEMENT

(1.) This is an application under Article 134 (1) (c) of the Constitution. The accused petitioner was tried under Section 409 of the Indian Penal Code before the learned Magistrate and was acquitted. In fact, two cases were started by the complainant--one case being No. C 2062 of 1956 for the sum of Rs. 5000/-alleged to have been paid on the 27th February,1953 against a receipt which ended in acquittal being affirmed in this Court in Criminal Appeal No. 424 of 1958. The other case was C 2067 of 1956 for two sums of Rs. 800/- and Rs. 4200/- alleged to have been paid respectively on the 27th February, 1954 and the 20th March, 1954 amounting to Rs. 5000/-. These proceedings arise out of this latter case. The learned Magistrate found the accused not guilty of the charge under Section 409 of the Indian Penal Code and acquitted him, of that charge under Section 258 (1) of the Code of Criminal Procedure and ordered him to be set at liberty forthwith. The complainant appealed before a Division Bench of Debabrata Mookerjee, J. and D. N. Das Gupta., J. The Division Bench allowed the appeal, set aside the order of acquittal and, in fact, directed a new trial in accordance with law and in the light of the observations made by the Division Bench.

(2.) Serious questions of law arise on the observations made by the Division Bench which have been urged by the petitioner as grounds for us to certify this to be a fit case for appeal to the Supreme Court. These observations relate to a letter Ex. 1 alleged to be written by the accused on the 18th March, 1954. That document was relied upon by the prosecution to establish and prove payment of Rs. 4200/-. This is a crucial document for the prosecution. This document was. challenged as forgery. Particularly it was said on behalf of the accused at the trial before the learned Magistrate that the words "4200 sankranta" were interpolated and not in the handwriting of the accused. It was also a part of the defence of the accused that the alleged reply of the complainant Ex. 1/2 was never sent and the words "Yes--A. C. Bose" marked Ex.. 1/3 were not in the handwriting of the accused. Indeed, the defence was that the letter 'Ex.' 1 with the Bengali signature Ex. 1/1 was written by the accused Abinash Bose (the petitioner) without the words "4200 Sankranta" and this paper was utilised by Bimal Sen to fabricate evidence, against the accused by interpolating Exs. 1/2 and, 1/3.

(3.) This defence case was clearly put to the complainant Bimal Kumar Sen when he was giving evidence and it was clearly suggested to him that the impugned portions of the document were plain, forgeries in order to implicate the accused. It is, admitted that in spite of this challenge the complalnant took no steps whatever to prpduce expert evidence to aid the Court in coming to any conclusion as to the authorship of the impugned portion of the document Indeed, the learned Magistrate himself says that on a careful scrutiny even without the handwriting expert, the difference are obvious and as such be could place no reliance on Exs. 1/2 and 1/3. The learned Magistrate, therefore, came to the conclusion that the prosecution, failed to prove by reliable evidence that the words ''4200 sankranta' in Ex. 1 and the -words and signature in Ex. 1/3 were in the handwriting of the accused petitioner or that the complainant Bimal wrote back Ex. 1/2 or the letter and that he sent back the paper to the accused on the 18th March, 1954 and got it back from the accused with Ex. 1/3.