EMPEROR Vs. DEBENDRA PROSAD

JUDGEMENT

(1.) This is an appeal by the Local Government of Bengal against the appellate judgment of the learned Sessions Judge of Darbhanga, dated the 23 July 1908, setting aside the conviction of Debendra Prasad who had been convicted by the Sub-divisional Magistrate of Samastipur, on the 3 of July 1908, under Section 420 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for four months and to pay a fine of Rs. 300 or, in the event of non-payment, to an additional term of three months rigorous imprisonment.

(2.) We have heard the learned Advocate-General on behalf of the Crown and the learned Counsel for the accused. The feats of the case are set out carefully and accurately in the judgment of the Sub-divisional Magistrate, and we do not propose to recapitulate them at length. Stated briefly, it appears that, OH. or about the 26 of January 1908, the accused, who was then travelling by train in a second class compartment, at Bazidpore station sent for one Boodrie who was then acting as the guard of the train. He told Boodrie that he was the dewan of the Narhan Raj estate, and that the post of manager to the estate, carrying a monthly salary of Rs. 300, was vacant, and asked him if he knew of any one with suitable qualifications for the post. Boodrie said that he himself had some experience of zemindari work and would like to obtain the post for himself, but stated that he would be quite unable to give the security of Us. 1,600 which, the accused said, must be given. The conversation was renewed when the train stopped at Sonepore station, where Boodrie said he could give Rs. 70 as security, and the accused agreed to accept it if more was not available. On the next day, Rs. 70 was sent to the accused by Boodrie by money-order, and the accused received the money and acknowledged it by a letter on the record. To put the matter shortly, after some correspondence, at an interview arranged at the Hajipur dak bungalow by the accused, Boodrie was given to understand that the Rajah was willing to accept Rs. 100 as security, and Rs. 30, to complete this sum, was, on the 14 of February, despatched to the accused, and its receipt by him has been proved. On a subsequent occasion Boodrie over-heard a conversation among some Railway men connecting the accused's name with alleged fraudulent advertisements for a manager on Rs. 300. His suspicions were aroused and he informed the police. Boodrie swears that he believed the accused's statement that he was dewan of the Narhan estate and was in a position to obtain for him the post of manager on Rs. 300 a month, and that it was in consequence of this that he sent the accused the sum of Rs. 100. The substantial accuracy of Boodrie's evidence as to the first conversation between him and the accused at Bazidpore station is corroborated by the statement of Nawab Thakur who was the brakesman of the same train and was with Boodrie at the time. It has also been proved that the accused at that time was not in any way connected with the Narhan estate, although there is evidence that he had some two or three years previously been dewan for a short time. It is also proved that the estate was then under the Court of Wards, and that there was no post of manager or other post with a salary of Rs. 300 vacant. It is admitted that the accused received the sum of Rs. 100, and that he has not repaid any portion of it though a refund had been demanded.

(3.) On these facts alone, it seems to us that the offence of cheating has been made out. In the Court of the Sub-divisional Magistrate, however, other evidence was tendered to show that the accused had obtained or attempted to obtain, at or about the same time, sums of money from other persons under ] very similar circumstances, that is, by falsely alleging himself to be the manager of one estate or another and offering to obtain posts under himself in the particular estate, and had thereby induced or attempted to induce other persons to advance him sums of money by way of security. Objection was taken at the trial to the admission of this evidence. The Sub-divisional Magistrate, however, admitted it under the provisions of Secs.14 and 15 of the Indian Evidence Act. That evidence may be summarized as follows. About the e January, or beginning of February 1907 the accused accosted one Abhoy Chundra Ghose, who was then station-master of Kishunpore, and told him that a post of tehsildar, on Us. 50 per month, was vacant in the estate of Rai Durga Prosad in which he was employed, and that he could obtain the post for Abhoy Chundra Ghose's son on receipt of security for Rs. 300. The witness remitted Rs. 300 to the accused. He had previously known that the accused had been dewan in the Narhan estate, and swore he believed his statements. As his son did not get the appointment he wrote on several occasions to the accused on the subject, but was put off. Losing patience eventually, after waiting some nine months or so, he wrote several times demanding the refund of his money. Failing to get it, he put the matter in the hands of his pleader who threatened to institute proceedings against the accused. Eventually Rs. 200 was remitted by the accused to the witness. It is proved that at that time the accused was in no way connected with the estate of Rai Durga Prosad.