JAGDISH NARAIN BAJPAI Vs. EMPEROR THROUGH RAM GOPAL

JUDGEMENT

(1.) These are two criminal references by the learned Sessions Judge of Benares at the instance of a complainant Jagdish Narain, a resident of Benares. Jagdish Narain made a complaint under Secs.420/109 and 120-B, I.P.C., against four persons, (1) Babu Ram Gupta of Lucknow, (2) Ramgopal, (3) E. Jones and (4) Balram Gupta, all of Bombay. The complaint alleged that the complainant had accepted an agency for selling cloth supplied by the firm of accused called the Swadeshi Cloth Mills, Bombay, and that the gist of the offence was in para. 11 they dishonestly and with a view to defraud the complainant and the public all along assured the complainant that the accused were sending the complainant only Swadeshi goods, which the complainant believed, but that actually some foreign goods were sent. The complainant filed two letters from the accused's firm but he did not file the alleged written agreement which he had with the accused and of which he complains the accused have committed a breach which amounts to a criminal offence. There is therefore nothing before the Court at this stage to show that there was any such agreement with the accused except the mere allegation of the complainant. The case was sent to a Special Magistrate in Benares and he issued bailable warrants for the four accused. The first accused Babu Ram Gupta appeared in Court on 11 August 1939 and he was directed to execute a personal bond of Rs. 500 with one surety of Rs. 100. He in his petition alleged that the other accused were respectable persons in Bombay and that the accused or some of them had filed a case in Lucknow against Moti Lal and Sri Ram for taking away their property on 14 July 1939. This prior case in Lucknow was also mentioned in para. 16 of the complaint of Jagdish Narain and his complaint on 26 July 1939 was subsequent. The application of Babu Ram Gupta further said that the present case of Jagdish Narain had been filed to harass the accused who were in Bombay and that they would attend on the date fixed. The Magistrate ordered on 11 August 1939: The warrant against other accused may be cancelled if he undertakes to bring them on the next hearing, i.e. 31 August 1939.

(2.) Such an undertaking did actually appear in the application of Babu Ram Gupta: "They will appear on the date fixed." The Magistrate then wrote a letter to Bombay of which he did not retain a copy, but he received a reply from the Commissioner of Police, Bombay, dated 2 September, 1939(paper No. 26-B) stating: With reference to your letter dated 11 August 1939 to the address of the District Magistrate, Bombay, I have the honour to return the accompanying three arrest warrants unexecuted as desired.

(3.) In quoting this letter the Sessions Judge has forgotten to enter the date 11th August and has only entered the month. It is clear therefore that on the very date on which the application was made by accused 1 Babu Ram Gupta, the Magistrate issued a letter to the District Magistrate, Bombay, asking him to return the three warrants unexecuted. Learned counsel argues that this does not amount to the cancellation of the warrants under Section 75, Criminal P.C. Section 75(2) states: Every such warrant shall remain in force until it is cancelled by the Court which issued it or until it is executed.