NARSINGHDAS MARWARI Vs. EMPEROR

JUDGEMENT

(1.) THIS , like most applications for revision in criminal cases, is nothing more than a second appeal in which no question of law whatever is raised, but every finding of fact in which the Courts below concurred is attacked, not, as obviously mistaken, but on the ground that an evaluation of the evidence by this Court should and would lead it to a different conclusion. Even if that did happen, this Court would not have even the right to disturb the decisions at which the appellate Court has arrived. It happens further that in this case the learned Sessions Judge did fall into a very obvious mistake of law in respect of the sentence, but that has passed unnoticed and was not mentioned in the application for revision.

(2.) THE sentence maintained in the Sessions Court was one of rigorous imprisonment for one year and a fine, with further rigorous imprisonment for four months in default of payment of it. That sentence is perfectly legal under Section 420, Penal Code, under which it was passed, but in the Sessions Court the finding was altered to anconviction of attempting to cheat, punishable under Sections 417 and 511 read together. The longest term of imprisonment that could be imposed substantively under these two sections combined is six months, and the longest that could be imposed in default of payment of fine is a month and a half. Now, though the applicant had no right to ask that the whole of the evidence should be examined by this Court for the third time, that has been done, and it is found, as might be expected, that it leads inevitably to the inferences of fact which two Courts have already drawn from it. They are these. The accused, a cotton broker, had in his possession a number of bales of cotton belonging to the complainant. On the 25th January the bales were weighed and found to consist of 129 akhas. (The akha is a1 unit, which has not been defined in the case, but seems to-include both weight and quality.)

(3.) ON the 27th January, two days after the weighment, the accused sold the lot of 43 units and credited the complainant with the price in his khatauni or ledger. Five days later, on the 1st February, he-sold the other lot of 86 units and credited the complainant with the price of 74 only. What entry was made at that time in respect of the remaining 12 units is uncertain, though it is clear that it was not a credit entry in favour of the complainant (Before the ledger was produced in this, case the page on which the entry of the 74 units appeared was removed and another substituted for it, showing the same entry and another just below it of the price of the 12 units which was also credited to the complainant).