JAGANNATH MISRA Vs. EMPEROR

JUDGEMENT

(1.) The material findings of fact at which the appellate Court has arrived in this case are as follows: The petitioner received from the complainant a widow named Benga Dibya, a sum of Rs. 45 which he undertook to advance on her behalf to one Nakul Das on the security of a mortgage to be executed by the latter in favour of the widow, that the petitioner had not returned the money to the widow and now falsely denies having received it. The petitioner was originally put on his trial together with one Mina Das on charges under Secs.420 and 120-B, Penal Code. Both the accused were found guilty on these charges by the learned Magistrate of the first class who tried them, and they were sentenced and four months rigorous imprisonment and a fine of Rs. 15 each, with a further one months rigorous imprisonment in default.

(2.) Out of the fine Rs. 45 was ordered to be paid to the complainant. In appeal the learned Sessions Judge acquitted Mina Das and altered the conviction of the present petitioner to a conviction under Section 406, Indian Penal Code, and altered the sentence to two months rigorous imprisonment and a fine of Rs. 50 and two months further rigorous imprisonment in default. The order under Section 545 was affirmed. The reason given by the learned Sessions Judge for altering the conviction of the petitioner was that he was not satisfied that the complainant had been induced to part with her money by any false representation made to her.

(3.) It is contended by the petitioner that it was not legal for the appellate Court to alter the conviction from one of cheating to one of criminal breach of trust. It appears however that the question has already been determined by judicial authority in the case of Reg V/s. Ramajirav [1875] 12 BHCR 1 where it was held that a person charged with a criminal breach of trust could not be convicted of an attempt to cheat. If that be the correct decision, there is no reason why the converse proposition should not also be right.