BRAHMACHARI AJITANANDA Vs. ANATH BANDHU DUTT

JUDGEMENT

(1.) This Rule is directed against an order of acquittal.

(2.) The petitioner's father Kali Charan Mukherjee, since deceased was the complainant in a case of cheating against the opposite party. Kali Charan was a retired Magistrate. On or about 9-8-1947, the opposite party represented to the complainant that he was in a large way of business and that pending the payment to him of a bill which was due to him from Messrs. Birla Bros., Ltd. he required a temporary loan of Rs. 5,000/-. The opposite party asked the complainant for the loan and promised to repay it by 7-11-1947, at the latest. The complainant's case was that by reason of the said representations, which he believed, he was induced to deliver to the opposite party a cheque for Rs. 5000/- which the opposite party in due course cashed. According to the complainant, in order to create confidence in his mind, the opposite party deposited with the complainant as security two policies of life insurance for Rs. 10,000/-and Rs. 1,000/- respectively. As the opposite party failed to repay the loan, the complainant became suspicious and caused enquiries to be made and learnt that the policies concerned had lapsed before they were deposited with him and that the opposite party had never had any dealings with Birla Bros, and nothing was therefore due to him from them. On these allegations the complainant instituted a case against the opposite party under Section 420, I. P. C.

(3.) After examining some six witnesses including the complainant a charge under Section 420, I. P. C. was framed against the opposite party. The complainant died before being cross-examined after charge. The case, however, proceeded. The learned Magistrate held that the complainant's evidence before charge was inadmissible under Section 33, Evidence Act and that the residue of the evidence was insufficient to prove the case. Accordingly, he acquitted the accused. It is to be observed that the learned Magistrate believed the defence evidence and came to the conclusion that in the absence of the evidence of the complainant the prosecution had failed to prove that the representations alleged to have been made by the opposite party were false.