DULI CHAND DALAL Vs. EMPEROR

JUDGEMENT

(1.) The accused has been convicted under Section 406 of the Indian Penal Code and fined Rs. 200. A Rule was obtained by him, which was beard by Mr. Justice Teunon and Mr. Justice Beachcroft. Mr. JusticeTeunon was of opinion that the conviction of the petitioner should be set aside and the fine, if paid, should be refunded. Mr. Justice Beachcroft was of opinion that the Magistrate bad reason for coming to his findings and on the evidence he held that there was no sufficient ground for supposing that the Magistrate came to anything but a right conclusion, and Mr. Justice Beachcroft was, therefore, of opinion that the Rule should be discharged.

(2.) The learned Judges composing the Bench which heard this case having differed in opinion, it has been referred to me.

(3.) The issue is whether or not Rs. 140, the subject of the charge, were paid to the accused for himself an account of his brokerage or were paid to the accused for payment by him to the firm of Messrs. Seo Narain Ram Narain, That the money was received by him is not in dispute. The question which is in dispute is the purpose for which that money was paid. It does not appear to me to be disputed that brokerage was not paid at the time of the contract but afterwards. And the case of the accused is this. That on the date on which this sum of money was made over to him, namely the 18th of April, there was then due and lowing to him money on account of his brokerage. It is true that in the examination-in-chief of Beni Madhab Banerjee, be says that no money was then due from us to the accused. On the other band the accused owed some money to us on another account." If this evidence refers to the 18th April, it appears to be in conflict with the statement made in the cross-examination. I say it appears to be, because the prosecution have not appeared at the hearing of this matter before me. Therefore, I have not had the advantage of knowing what explanation, if any, they have to make. But in cross-examination there is this statement, "no brokerage was paid to the accused after Augrahayan last", that is, November 1915. Rupees 31-1-9 was due to the accused for brokerage up to the end of Chait last, that is the middle of April 1916. Rs. 47-15-6 was due for subsequent brokerage; up to 18th April the amount due for brokerage was Rs. 34- 1-3. The evidence as it stands is not intelligible, because it does not appear clearly whether the sum of Rs. 47-15 6 is to be taken as additional to the sum of Rs. 31-1-9, nor how the figure of Rs. 34-1-3 is arrived at. From that evidence, however, it would appear that something was at the date in question due and payable by Messrs. Kundu & Co. to the accused. Another partner says that the account has not yet been settled. Now, the accused says that there was some money due and owing to him, in fact the sum of Rs. 53 after giving credit for the sum of Rs. 140, and he has instituted a suit in the Small Cause Court to recover the sum. Something apparently being due to the accused there are circumstances in this case which support the petitioner s story that the money received by him was on this account and not for, payment to Seo Narain-Ram Narain. Notably the fact of the howlat entry as also the circumstance that the entry merely shows an advance without giving particulars, though it is said, that in other instances in the account books the purpose of the account was noted. There are some other circumstances which are fully dealt with in the judgments of the learned Judges and I need not refer to them here. Mr. Justice Beachcroft in his judgment states that it is impossible to say that the Crown could not have been represented had it had clear notice that the findings of fact would be assailed. Whatever may be the state of facts before the case was heard by the learned Judges, it is sufficient here to note that at this hearing before me the Crown has not appeared although it bad the opportunity to be represented. It cannot, I think, be said that the case is one which is free from doubt and I, therefore, think that in accordance with the ordinary rule, the benefit of that doubt should be given to the accused.