EMPEROR Vs. JMCIVER

JUDGEMENT

(1.) One Rao Bahadur Soora Lakshmiah Chetty, by his agent Gopalaswamy Chetty, instituted a complaint in the Court of the Chief Presidency Magistrate, Egmore, Madras, against J. McIver, the senior partner of Messrs. Huson Tod & Co., a firm of stock brokers, Madras, as accused 1, and K.S. Narasimhachari, one of the assistants of the said firm as accused 2, charging them with offences punishable under Secs.406 and 420, Indian Penal Code,-"criminal breach of trust" and "cheating and dishonestly inducing delivery of property". The learned Magistrate acquitted the accused; and this appeal has been filed by the Government against the order of acquittal.

(2.) The complaint alleged that in or about November 1934 Messrs. Huson Tod & Co. purchased for and delivered to the complainant 61/2 per cent 1935 Bombay Development Loan Bonds of the value of Rs. 3,50,000, receiving full payment therefore, that in or about the last week of March 1935 accused 2 represented to him that his firm had entered into a contract with the Imperial Bank of India to sell and deliver to them 6i per cent 1935 Bombay Development Loan Bonds, that with a view to perform the contract, the accused's firm had purchased from Bombay the requisite quantity of paper but that the Imperial Bank had returned the same on the ground that the endorsement on them was irregular, that the bonds had been sent to Bombay for rectification and that pending the receipt of the bonds from Bombay the complainant might oblige the firm temporarily by giving them his bonds of the said denomination and value to satisfy the Imperial Bank, and that as soon as the bonds purchased by them were received back from Bombay with the endorsements rectified, the complainant's bonder would be returned to him.

(3.) It was further alleged that on 27 March, accused 2 renewed his request saying that the Bombay bonds had not arrived and as that was the last day for completion of the contract with the bank the complainant should oblige the firm by giving his bonds temporarily for a few days and assured him that he hoped to receive the Bombay bonds sent for rectification by 30th March, and that the complainant's bonds would be returned to him on 1 April positively. It was then stated in the complaint that the complainant believing the representation made on behalf of the firm by accused 2 and on the assurance that his bonds would be returned on 1st April 1935, caused fourteen 6 1/2 per cent 1935 Bombay Development Loan Bonds of the aggregate value of Rs. 3,50,000 to be endorsed and delivered over to the accused's firm by his brother and authorised agent on 27 March 1935, and that accused 2 passed a receipt for the same for and on behalf of the accused's firm. It was further alleged that as the bonds were not returned on 1 April as promised, the complainant telephoned about it to the accused's firm and that accused 1 sent a letter in the name of the firm in which, while confirming the receipt passed by accused 2 on behalf of the firm when, he obtained the bonds, it was stated that the bonds from Bombay have not been received and that on receipt of the same the complainant's bonds would be forwarded to him. However, as the bonds were not sent as promised, the complainant, it was alleged, again wrote to the accused's firm on 17th April asking for the return of the bonds forthwith and to this accused 1 wrote in the name of the firm the next day saying that the Bombay bonds had not yet arrived and to avoid delay they would re-purchase and deliver to the complainant similar bonds by the end of the month if the originals were not got back before 23 April 1935.