KRISHNA NAMDEO CHIMURKAR Vs. SULEMAN AND EMPEROR

JUDGEMENT

(1.) SULEMAN and Shankar were prosecuted under Section 420, Penal Code, in the Court of the First Class Magistrate, Nagpur, for having cheated Krishna Namdeo Chimurkar of Rs. 1660 on 17th February 1945, Baliram of Rs. 915 and Tukaram of Rs. 1815 on the following day in Nagpur on the misrepresentation that yarn would be supplied to them without delay at a specified rate in lieu of the advances received by Suleman and Shankar. Suleman absconded with the money on 18th February 1945 and was apprehended at Balagat where a sum of Rs. 3778-2-0 was recovered from his wife. Costly presents given by him to friends were also seized. Shankar was acquitted on all counts on the ground that he was duped by Suleman, but the latter while acquitted on the charge of cheating Krishna Namdeo Chimurkar was convicted on the other two counts and sentenced to two concurrent terms, each of one year's rigorous imprisonment, and to pay by way of fine two sums, each of Rs. 1000.

(2.) KRISHNA Namdeo Chimurkar thereafter filed on 7th November 1946 the present application to have Suleman's acquittal set aside and to have him duly punished according is law. Suleman had meanwhile appealed against his convictions and sentences and they were set aside on 16th December 1946 by the third Additional Sessions Judge, Nagpur. As there was an impression from the order dated 31st October 1946 of Grille C.J. and Hidayatullah, J., in criminal Appeal No. 292 of 19461 that revision did not lie at the instance of a private complainant, special notice was issued to the Provincial Government to appear and to have the question argued prior, if necessary, to a reference to a Full Bench.

(3.) IN Sitaram v. Tilokchand Macnair, J.C., followed the rule in Sher Khan v. Anwar Khan A.I.R. 1927 Nag. 170, set aside the acquittals of the two non-applicants and remanded the case. Gruer J. (then A.J.C.) in President Municipal Committee Bilaspur v. Bansidhar Bani A.I.R. 1936 Nag. 40 in dealing with a preliminary objection to the effect that this Court is not competent to interfere with an order of acquittal except when moved to do so by the Local Government, made the following observations: In none of these cases do I find it laid down that the High Court is precluded from interfering at the instance of a private prosecutor. In...it was pointed out that Section 439(4) does not allow the High Court to convert a finding of acquittal into one of conviction. But that is not the same thing as saying that the High Court may not set aside an acquittal and remand the case. In Kishan Singh v. Emperor A.I.R. 1928 P.C. 254, Section 439(4) directly applied. The orders of acquittal were set aside and the applicants were directed to be retried.