Knox, J.:— Maula Bakhsh, a dyer by caste, has been convicted of an offence under section 408 of the Indian Penal Code, and sentenced to rigorous imprisonment for two years and six months. It appears from the evidence of Hamid Hasan and Inayat Ahmad, vakils, that Maula Bakhah was in the habit of attending Courts and offering or giving help to litigants. In April 1902 one Tulshi, ??? Jat, filed a suit against Chain Sukh, a sugar refiner of Nehtor, and ??? Hasan, zamindar of the same place, for the price of molasses, which, as Tulshi said, he had supplied to Chain Sukh and for which he had not been paid. The suit was filed in the Court of the local Munsif, and on the 13th of June a decree was passed ex parte against Chain Sukh. Chain Sukh applied and got this order set aside, and it was to help him in the conduct of the revived suit that Chain Sukh says he employed the petitioner. There is evidence, which has been believed, that Maula Bakhsh did take a more or less active part on Chain Sukh's side. Hamid Hasan, the vakil, states that two or three times Maula Bakhsh brought a bundle of cheques for his inspection, and that on the day of hearing he intended to file these cheques in the case. On the 25th of September, the date fixed for hearing, Chain Sukh came into Bijnor. He handed the bundle of cheques and account book to Maula Bakhsh. They went together to the house of Hamid Hasan. The vakil examined the cheques, and Maula Bakhsh made them over to his clerk in order that a list might be prepared for Chain Sukh. The clerk prepared the list, and Chain Sukh and Maula Bakhsh left together. Chain Sukh says he gave the cheques to Maula Bakhsh. In this he is corroborated by Chaudhri Bndhan Singh, who saw the cheques at the Arya Samaj Sarai. This was at 10 A.M By noon Maula Bakhsh had disappeared with the cheques, and could not be found. The last that was seen of him was driving in a tonga some three miles away from Bijnor.
2. These are the main facts found by the Judges and though I was at first inclined to doubt some portion, I have, after a careful consideration of the evidence of Chain Sukh and the witnesses Chaudhri Bndhan Singh and Kanhya Singh, come to the conclusion that there is no good ground for differing from the view taken by the learned Judge.
3. But it was strongly pressed upon my attention by the learned Counsel for Mania Bakheh that the element of dishonesty, an essential ingredient, so to speak, which must be found present before a conviction can be rightly had under section 408, was absent, or at any rate was not proved.
4. No wrongful gain had been shown to have accrued to Maula Bakhsh, and the wrongful loss suffered or said to have been Buffered by Chain Sukh was purely hypothetical. I was much impressed by this argument and took time to consider and consult authorities.
5. It is true that the so-called cheques had all of them been honoured, so to speak, and ware no longer of value as instruments upon which money could be procured, and the question really turns upon how far these sc-called cheques, which are not shown to have had at the time of their abstraction higher value than mere pieces of paper could be held to be property. I have come to the conclusion that they were properly within the meaning of the Indian Penal Code, even assuming that they were of no value further than the paper upon which they were written. The question of value, except so far as section 95 is concearned, appears quite immaterial, and the conviction under section 408 of the Indian Penal Code is a good and sound conviction.
6. I have considered the question of sentence, and I do not find that taking the circumstances of the case as proved, it is unduly severe.
7. The petition is dismissed.