EMPEROR Vs. YAKUB ALI

JUDGEMENT

(1.) In this case four persons, Sheo Sahai, Yakub Ali, Wazir Ahmad and Thomas Fanthome, were tried before a magistrate of the first class at Jaunpur on a charge framed under Section 420, Indian Penal Code. The magistrate, after a prolonged trial, found all the four accused guilty, convicted them and sentenced them to substantial terms of imprisonment and also to fine. All the four accused appealed to the Additional Sessions Judge of Jaunpur, and the Additional Sessions Judge, in a judgement, dated the 6th of March, 1916, that is to say, some eight months after the hearing in the magistrate s court had commenced, has reversed the conviction and acquitted all the four accused. The appeal before us is one by the Local Government against the acquittal of Yakub Ali, Wazir Ahmad and Sheo Sahai. The learned Government Advocate, in opening the case in support of the appeal, called our attention to the fact that there was no appeal against the acquittal of Thomas Fanthome; but urged that this action on the part of the Local Government should not be construed as prejudicing their case against the other accused persons, or as implying an admission on the part of the Local Government that any portion of the prosecution evidence was false or unreliable. We can only deal with this matter by leaving the case of Thomas Fanthome out of our consideration, and hereafter I propose to speak of the three men, Yakub Ali, Wazir Ahmad and Sheo Sahai, whose cases are before us, as "the accused." The case against these men is that they deceived two persons of the names of Brij Kishore and Pitambar Nath and, by deceiving them induced them to part with various sums of money. The charge is framed in respect of three separate items, a sum of Rs. 60 sent by money-order in June, 1914, another of Rs. 70 sent by money-order in October, 1914, and another of Rs. 100 sent by money-order in December, 1914. The story told by Brij Kishore and Pitambar Nath is substantially as follows: They were previously acquainted with the accused Sheo Sahai, a resident of Lucknow, who describes himself as a broker. Having occasion to require a loan of money, they both of them discussed the question with Sheo Sahai. The story which he then told them was subsequently confirmed by the other two accused. It was to the effect that a wealthy lady of Rampur, named Akbari Begam, had a large sum of money which she was anxious to lend out and which she was prepared to lend at an extremely low rate of interest. Yakub Ali and Wazir Ahmad were servants of this lady and were entrusted to act on her behalf in the arrangement for loans to be made out of the money above referred to. The lady was so anxious to dispose of the whole of the available money in this manner that she was prepared to make, through her agents, a further offer to Brij Kishore and Pitambar Nath namely, that if they would bring forward other persons desirous of borrowing large sums of money, the loan which they themselves required, say about Rs. 40,000 apiece, would be made to them, without any interest at all, on very easy terms as regards instalments, Pitambar Nath and Brij Kishore have gone into the witness-box and have given evidence in support of this story. They describe a number of journeys to and from Jaunpur, Lucknow and Moradabad, and a number of interviews with the accused, They mention that there was an attempt on their part to bring forward others persons prepared to borrow money on easy terms, and they give details connected with the case of one Dasrath Bharlhi, They say that Wazir Ahmad and Yakub Ali visited the Gonda district in connection with this affair, in order to inquire into the details of the aforesaid Dasrath s landed property. They say similar inquiries were made at Machlishahar in respect of their own landed property. The transactions to which they depose are alleged to have extended over a prolonged period, from about the month of November, 1914, to about the month of January, 1915. Finally, according to these two witnesses, they came to the conclusion that they were being played with, and that the money which had been obtained from them on one pretext or another by the accused in connection with this affair was as good as lost. They then broke off further negotiations and returned to their home. It was only in consequence of inquiries which the police were beginning to make into the proceedings of these accused persons, that Brij Kishore and Pitambar Nath were induced to come forward and make a complaint. In corroboration of this story a very great deal of evidence was produced. Some of this evidence it is unnecesssary to refer to in detail, because the facts are, up to a certain point, admitted by the accused themselves. It might, for instance, have been of great importance for the prosecution to bring forward evidence to corroborate Brij Kishore and Pitambar Nath on such questions as that the three accused were acting together and were jointly negotiating with these two complainants upon some matter or other. They might have required direct corroboration of their statements that money passed from them to the accused, and so on. It is unnecessary to discuss the reliability of the evidence of these two witnesses in so far as the correctness of their statement is admitted by the accused themselves. The accused put forward a carefully considered and an elaborate defence. They reserved their cross-examination during the hearing of the prosecution witnesses in the magistrate s court, and they finally produced written statements of considerable length, divided methodically into paragraphs, putting forward in the clearest possible manner the case they desired the court to consider as their defence. They admit that all three of them were in negotiation with Brij Kishore and Pitambar Nath about some matter or other during the period covered by the evidence of the two complainants. They admit that they did receive money from the complainants, and in particular the three sums of money specified in the charge. They deny, however, having deceived thy complainants in any way. The deny having told the complainants anything about a lady called Akbari Begam, or having represented themselves as servants or agents of any such lady. They say that the negotiations which did in fact take place between the parties were about an entirely different matter. They bring forward a story which has a certain basis of truth, as can be shown from the records of this Court itself. There was in fact a lady of Rampur named Humai Tajdar Begam, and it seems to be true that the accused Yakub Khan had been at one time in this lady s service. She appeared as plaintiff in a suit in which she claimed an enormous sum of money as the dower-debt of her late husband, and the case attracted considerable attention at the time when it was litigated. The subsequent history of this litigation need be mentioned in so far only as it is necessary to make clear the defence set up by these accused. It seems that Humai Tajdar Begam s suit was financed by a gentleman of the Bijnor district, and that after the plaintiff had obtained a decree from this Court this gentleman in some way or other contrived to appropriate to himself the entire benefits of this decree. The transaction was not recent. In fact, according to the accused themselves, the final transfer by means of which the gentleman of Bijnor secured for himself all the benefits that were to be obtained under the decree for the dower-debt took place in the month of November, 1903, so that from any possible point of view the period of limitation based* on this cause of action was running out during the latter part of the year 1915. So far the accused are telling us a story which can be shown to have a basis in fact, and it is a story with which they must have been acquainted owing to Yakub Ali s connection with Humai Tajdar Begam, Now, say the accused, it is not true that they over offered to obtain a loan of any sort or kind for Brij Kishore or Pitambar Nath. On the contrary, they were themselves trying to borrow money from any one who might be prepared to lend it, as a speculation, for the purpose of financing a suit against the gentleman of Bijnor who had appropriated to himself the benefits of Humai Tajdar Begam s decree. They say that, through Sheo Sahai, they succeeded in interesting Brij Kishore and Pitambar Nath in this affair, and that these two complainants promised to put them in communication with other persons as well, and to endeavour to raise the sum of Rs. 25,000, which was estimated as necessary to the financing of the suit. Eventually, according to the accused, it became clear that Brij Kishore and Pitambar Nath were either unable or unwilling to find the necessary money. There was a quarrel between the parties, and the accused threatened that they were going to bring a suit against these complainants for the breach, presumably, of a verbal contract entered into that they would supply the money. The suggestion is that, as a defence against a suit of this nature, Brij Kishore and Pitambar Nath managed to bring to the notice of the police the false story on the strength of which the accused have been prosecuted. What we have to consider most particularly is what corroboration is forthcoming upon this record to show that the story told by the two complainants is substantially true, where it differs from that pub forward on behalf of the accused. It follows that one of the principal points on which the prosecution has to satisfy the Court is that the three accused were offering a loan, and not trying to raise one, and that they were putting themselves forward as the servants or agents of a wealthy lady prepared to lend money, and not as persons interesting themselves from philanthropic motives in the affairs of a ruined and necessitous old lady in desperate need of some one who would lend money to finance her suit. The learned Additional Sessions Judge has dealt with the entire evidence in a most unsatisfactory manner. No one reading his judgement would suppose how much of the prosecution story was admitted by the accused, or how various and manifold was the corroboration tendered in support of the truth of the story told by Brij Kishore and Pitambar Nath. There are two witnesses, Kanhaiya Lal, son of Mohan Lal, and Hanuwant Singh, who gave direct evidence to the effect that these accused persons were offering a loan of money to Brij Kishore and Pitambar Nath, that the visits paid by these two complainants to Moradabad were in connection with an attempt to borrow money, and that the accused Yakub Ali and Wazir Ahmad represented themselves to be the agents of a lady who was prepared to lend money. Some corroboration is also forthcoming in the evidence of the witness Guppu, as against the accused Sheo Sahai. Over and above this we have, as the trying magistrate rightly remarks, a mass of documentary evidence on the record of a very striking character.

(2.) Now I desire to pass on to another point in the case about which there has been considerable argument. The learned Sessions Judge names five witnesses, Rudra Nath, Ram Asarey, Hanuwant Singh, Kanhaiya Lal and Bir Bhaddar Singh, in respect of whom he says that they were put forward by the prosecution simply to prove that the accused had also cheated them with the same false tale which they told Brij Kishore and Pitambar Nath. Looking at their evidence solely from this point of view, the learned Sessions Judge rejects it as inadmissible, on the ground that it was not covered by the provisions of Sections 14 and 15 of the Indian Evidence Act. I have had occasion incidentally to mention the evidence of the witness Hanuwant Singh, and from any point of view some part of the evidence of this witness is admissible as direct corroboration of Brij Kishore and Pitambar Nath. I may note also that the Kanhaiya Lal here referred to must be the second Kauhaiya Lal, son of Kamta Prasad, of Lucknow, and not the other witness of the same name to whom I have already referred. Now as regards two of these witnesses, Rudra Nath and Ram Asarey, it so happened that unfortunately they were not cross-examined in the magistrate s court. In the view which we have agreed to take of the case as a whole, it is not necessary for me to go into this question in any detail. The learned Government Advocate informed us that he did not wish to press for the consideration of the evidence given by Ram Asarey, but he did ask us to take into consideration the evidence given by Rudra Nath We went in considerable detail into the circumstances under which Rudra Nath was examined in the magistrate s court and under which the accused finally abandoned, under protest, their claim to crops-examine him. For myself I am content to say this much. I should not be prepared to hold that the evidence of Rudra Nath, as it stands on the record, is not legally capable of being taken into consideration; but I think that, under all the circumstances, the evidence of this witness, untested by cross-examination, becomes of practially negligible value, I propose, therefore, to exclude it altogether from consideration, and I attach no weight whatsoever to this evidence in coming to a decision in the case. There remains, however, the evidence of Bir Bhaddar Singh and of Kanhaiya Lal, son of Kamta Prasad, and those portions of Hannwant Singh s evidence which are not admissible as direct corroboration of the prosecution story. On the general question as to the admissibility in a case of this sort of evidence that the persons accused had, successfully or unsuccessfully, played off the very same fraud in respect of which the charge has been framed upon persons other than those who are named as complainants in the charge, we listened to a good deal of argument and a number of cases have been cited. There is not much case-law on the subject in this Court. The only reported case to which we were referred is that of King Emperor v. Abdul Wahid Khan (1911) I.L.R. 34 All. 93. Reference was also made to two unreported cases, namely, Criminal Revision No. 1116 of 1915, the case of Chote Lal, decided by the Honourable the Chief Justice on the 10th of March, 1916, and Criminal Revision No. 181 of 1916, the case of Barma Shankar decided by myself on the 8th of April, 1916. In no one of these three cases was the general question fully argued out as it has been before us. In the reported case Mr. Justice Chamier considered that evidence of similar but distinct acts of fraud committed by the accused upon other persons had been wrongly admitted. The learned Chief Justice also held that evidence of a similar nature had been wrongly admitted in the case before him, though it would seem that he might have taken a different view if there had been a definite charge of conspiracy framed in connection with the facts which he was dealing. In the case decided by myself I admitted evidence substantially similar to that tendered by the prosecution in the present case. I did so without discussing the general question, but fortifying myself by a recent decision of the Calcutta High Court in Emperor v. Debendra Prosad (1909) I.L.R. 86 Calc. 573. I think I had better make the precise question in issue clear by setting forth in detail the evidence of the witness Bir Bhaddar Singh. Now this witness is a gentleman of position and respectability. The trying magistrate considered him to be a quite unexceptionable witness. The learned Sessions Judge does not question this, but has simply "ruled out his evidence as inadmissible. Bir Bhaddar Singh deposes that he got into touch with Shoo Sahai, somewhere in the month of December, 1918, and received a letter from Sheo Sahai which he produces and which is Exhibit A 53 in the case. At a personal interview which followed, Sheo Sahai informed him that he would be able to obtain a loan of a largo sum of money at a very low rate of interest from Akbari Begam of Rampur, through her servants, Yakub Ali and Wazir Ahmad. He subsequently met these two accused and they told him the very same story. He produces a letter, Exhibit A. 54, written to him by Wazir Ahmad. In my opinion the whole of the evidence of this witess, so far as it has been set forth above, including the exhibits proved by him, is admissible in evidence and is of great importance in the decision of the present case. The only point in Bir Bhaddar Singh s evidence as to which I entertain any doubt is the passage towards the close of his examination-in-chief, in which Be was permitted to depose that he had actually paid Rs. 320 to the accused at their request, on the pretext that it was wanted on account of expenses. The prosecution had put foward this witness before the charge was framed and while the defence was being reserved. They were entitled Jo adduce evidence relevant upon any charge the magistrate could lawfully be asked to frame hereafter, and they were entitled to meet in anticipation any defence which the accused might reasonably be expected to put forward. It seems to be beyond question, and has in substance been conceded in argument, that if the trying magistrate had seen fit to frame a charge of criminal conspiracy under Section 120 B, Indian Penal Code, the whole of Bir Bhaddar Singh s evidence as above set forth would have been legally admissible. Personally, I would go further and say that, if the charge which has been actually framed had been drawn up a little more carefully, the question of the admissibility of this evidence would hardly have arisen. The real charge against each of the accused was that each of them had conspired with the other two to defraud the two complainants and had, by cheating the complainants, either obtained for himself, or abetted the others in obtaining, the sums of money specified in the charge. Abetment by conspiracy is one of the forms of abetment as defined in the Indian Penal Code, and was the suitable form of abetment to have alleged in the present case. As a matter of fact, the learned magistrate, although he drew up the charge in a plain and unelaborate form, has convicted the accused upon a finding that they entered into a conspiracy to do the acts alleged in the charge. This is clear from the concluding portion of his judgement. Putting aside, however, the question of conspiracy, we have to consider precisely the manner in which the prosecution desired to rely upon such evidence as that given by Bir Bhaddar Singh. The case for the accused was that they had never said that there was such a person as Akbari Begam, and that a fortiori they had never represented themselves as servants or agents of any such lady. To prove that, at or about the very same time when the accused were alleged to have made such a representation to Brij Kishore and Pitamhar Nath, they had been making precisely the same representation to a gentleman like Bir Bhaddar Singh, was at once to corroborate the prosecution evidence in support of the particular offence charged and to disprove the case set up for the defence. It seems therefore that the evidence to this extent was clearly admissible under Section 11 of the Indian Evidence Act. Further, the prosecution were bound to prove the intention of these accused in the course of their dealings with Brij Kishore and Pitambar Nath, and in this connection it seems to me that the evidence to which I have referred was admissible under Section 14 of the Indian Evidence Act. It is quite true that an accused person should not be prejudiced at his trial by proof of the fact that he has committed similar offences to that with which he has been charged. At least, such evidence is not admissible unless the accused has challenged its production by producing evidence of his previous unblemished character. The law, however, does not say that evidence otherwise admissible must be excluded if incidentally it involves showing that other offences similar in nature to the one under investigation had been committed by the accused. Personally, I should have endeavoured, as far as possible, in recording the evidence of the witness Bir Bhaddar Singh, to steer clear of this difficulty. I should have allowed his evidence to go in examination-in-chief to the extent already indicated; but I should have stopped him when he began to depose that he was defrauded by the accused. If the accused had chosen to take up the position that it was impossible for the court properly to appreciate the evidence of this witness without having the whole of his story before it, and had for this reason gone on to cross-examine Bir Bhaddar and to elicit from him in cross-examination the fact that money had actually passed from him to the accused, it seems to me that there could have been no reasonable objection to this being done. There is just one more point I wish to make with regard to this question of law. The whole of the evidence which was challenged before the learned Sessions Judge went in without any objection on the part of the accused in the court of the trying magistrate. In view of the remarks which I have already made, it would seem that the position was really this : The evidence was not challenged by the accused at the time when it was tendered, and could not have been successfully challenged by them, because the only result of so doing might have been to lead the magistrate to pay more attention to the framing of the charge and to draw up a charge of conspiracy in connection with which the admissibility of the evidence could scarcely have been, questioned. No objection was therefore raised; but when it was found that the magistrate and drawn up the charge as one simply alleging three acts of cheating against the accused, then the point was taken in the court of the Sessions Judge that on this particular charge the evidence adduced was not admissible. I think the learned Sessions Judge was mistaken in allowing the objection at all. Even assuming that he was right on the question of law as it was put to him, I think it was his clear duty to have considered the provisions of Section 423 of the Code of Criminal Procedure, and to have seen whether the difficulty raised was not one which he could have met, either by "altering the finding within the meaning of that section, or by ordering a new trial, or ordering the accused persons to be committed for trial before himself upon a properly framed charge. The manner in which he has excluded this evidence altogether, and made its exclusion the basis for a finding of not guilty in respect of all the accused persons, seems to me seriously objectionable.

(3.) With regard to the importance of Bir Bhaddar Singh s evidence, I have a word to add, The two letters Ex. A. 53 and A, 54, produced by him prove beyond question that the transaction between himself and the accused was one of a loan offered by the accused and not of a loan to be advanced by himself. I think those documents are clearly admissible as they throw light upon the use of the vague word muamala, and other ambiguous expressions in the documents relied upon by Brij Kishore and Pitarabar Nath,