MOHAMAD RAFI Vs. EMPEROR

JUDGEMENT

(1.) The two petitioners were convicted under Section 420 read with Section 34, I.P.C. by a Magistrate of the First Class and the conviction has been affirmed by the Additional Sessions Judge. There were three charges, in each charge both the petitioners being named as accused. The outline of the case is that Nazirul Hassan, petitioner 2, accepted the post of organiser of a branch office at Keraiper Sarai, police station Hilsa, on behalf of what was styled the Unique Bank of Bengal," 11 Clive Row, Calcutta. The engagement dates from about the beginning of December 1930. Rafi, who is the husband of the sister of Nazirul Hasan and is a resident of the same village, was at the same time appointed as treasurer of this branch office. The general features of the loan scheme which Nazirul Hasan as organizer was to promote are described in the judgments of the Courts below and are similar to others of the link system or snow-ball scheme type which in a large number of cases has been found to be fraudulent, and in the present case both the Courts were satisfied that the scheme was a fraudulent one and not a genuine banking business. That conclusion has not been challenged here.

(2.) The petitioners come to this Court with two separate petitions, one apparently drafted by counsel and another by the petitioners themselves. In the former we are asked to interfere on 23 grounds and in the latter 71. But Mr. B.K. Sen appearing for the petitioners has with wise moderation restricted himself to one point of procedure and one point on the merits. The point of procedure is that in the Magistrate's Court the accused did not get the opportunity which they should have had of cross- examination of the Sub-Inspector of Islampur, P.W. 1, who was the first witness examined for the prosecution at the opening of the trialon 14 July, 1932. It is said that the accused wished to prove certain statements made to him by prosecution witnesses which would discredit their testimony in Court. Cross-examination of this Sub-Inspector took place on 15th-16 December 1932 before the cross-examination of most of the prosecution witnesses; so the accused could not put questions to the Sub-Inspector regarding statements made to him.

(3.) Petitions were presented to the trying Magistrate on 21 January 1933 and 25 January 1933 to recall this Sub-Inspector after the cross-examination of other witnesses. In the petition of 21 January there is also a prayer for the recall of another Sub-Inspector who was in fact recalled and cross examined on the 25th. The Magistrate on the 25 noted in the order sheet that the petition was filed late and he did not find sufficient reason for summoning the Sub-Inspector of Islampur under Section 257, Criminal P.C. It was, as a matter of fact, the other Sub-Inspector who submitted the charge sheet and examined the prosecution witnesses and the Magistrate was probably right in considering that no serious importance attached to anything that could be elicited from the Sub-Inspector of Islampur in further cross-examination. Reference to the grounds of appeal in the Sessions Court shows that no reference was made there to any grievance in the matter of failure to resummon the Sub-Inspector of Islampur. For this reason I think that the point of procedure is not well founded and there is no defect in the proceedings in this matter.