Woodroffe, J.:— The accused has been convicted under S. 406, I.P.C, and fined Rs. 200. A Rule was obtained by him, which was heard by Teunon, and Beachoroft, JJ. Teunon, J. was of opinion that the conviction of the petitioner should be set aside and the fine, if paid, should be refunded. Beachcroft, J., was of opinion that the Magistrate had reason for coming to his findings and on the evidence he held that there was no sufficient ground for supposing that the Magistrate came to anything but a right conclusion, and Beachcroft, J. was, therefore, of opinion that the Rule should be discharged. The learned Judges composing the Bench which heard this case having differed in opinion, it has been referred to me. The issue is whether or not Rs. 140, the subject of the charge, were paid to the accused for himself on account of his brokerage or were paid to the accused for payment by him to the firm of Messrs Seo Narain-Ram Narain. That the money was received by him is not in dispute. The question which is in dispute is the purpose for which that money was paid. It does not appear to me to be disputed that brokerage was not paid at the time of the contract but after wards and the case of the accused is this. That on the date on which this sum of money was made over to him, namely 18th April, there was then due and owing to him money on account of his brokerage. It is true that in the examination-in-chief of Beni Madhab Banerjee, he says
“that no money was then due from us to the accused. On the other hand the accused owed some money to us on another account.”
2. If this evidence refers to 18th April, it appears to be in conflict with the statement made in the cross-examination. I say it appears to be, because the prosecution have not appeared at the hearing of this matter before me. Therefore, I have not had the advantage of knowing what explanation, if any, they have to make. But in cross-examination there is this statement “no brokerage was paid to the accused after Augrahayan last,” that is, November 1915. Rs. 31-1-9 was due to the accused for brokerage up to the end of Chait last, that is the middle of April 1916. Rs. 47-15-6 was due for subsequent brokerage; up to 18th April the amount due for brokerage was Rs. 34-1-3. The evidence as it stands is not intelligible, because it does not appear clearly whether the sum of Rupees 47-15-6 is to be taken as additional to the sum of Rs. 31-1-9, nor how the figure of Rs. 34-1-3 is arrived at. From that evidence, however, it would appear that something was at the date in question due and payable by Messrs Kundu & Co. to the accused. Another partner says that the account has not yet been settled. Now, the accused says that there was some money due and owing to him, in fact the sum of Rs. 53 after giving credit for the sum of Rs. 140, and he has instituted a suit in the Small Cause Court to recover the sum. Something apparently being due to the accused there are circumstances in this case which support the petitioner's story that the money received by him was on this account and not for payment to Seo Narain-Ram Narain. Notably the fact of the howlat entry as also the circumstance that the entry merely shows an advance without giving particulars, though it is said, that in other instances in the account books the purpose of the account was noted. There are soma other circumstances which are fully dealt with in the judgments of the learned Judges and I need not refer to them here. Beachcroft, J., in his judgment states that it is impossible to say that the Crown could not have been represented had it had clear notice that the findings of fact would be assailed. Whatever may be the state of facts before the case was heard by the learned Judges, it is sufficient here to note that at this hearing before me the Grown has not appeared although it had the opportunity to be represented. It cannot, I think, be said that the case is one which is free from doubt and I therefore think that in accordance with the ordinary rule, the benefit of that doubt should be given to the accused.
3. I accordingly agree with Teunon, J., and I am of opinion that the conviction of the petitioner should be set aside and the fine, if paid, should be refunded.
Teunon, J.:— In this case the petitioner Dali Chand Dalai has been convicted under S. 406, I.P.C, and sentenced to pay a fine of Rs. 200. The present Rule obtained at his instance is directed against this conviction and sentence and is what is known as an open Rule at the hearing of which all questions arising, whether of fact or of law, may be urged. The petitioner, it appears, is a broker and for soma two years prior to the transactions now in question had been employed in that capacity for the purchase of grain by a firm known as Kundu & Co. He was also, it appears, entrusted by the vendor firms with the realization of the moneys due to them. Sometime in the beginning of March 1915, acting as a broker on behalf of Kundu & Co., the petitioner bought 400 maunds of grain from a firm named Seo Narain-Ram Narain. The sum due to that firm was thus Rs. 1,281-13-6, and a sum of Rupees 7-6-0 was due as brokerage to the petitioner. The munib gomasta of the firm of Seo Narain, which had dealings with the petitioner for some 15 months, has proved that on 11th or 12th March they handed over their bill to the petitioner for realization and that in the beginning of May he returned the bill saying that he had been unable to collect the money. The case of the complainant firm then is that on 18th April on the representation the petitioner that the firm of Seo Narain required money for the purchase of gunny bags, they handed to the petitioner a sum of Rs. 140 for the express purpose of making a part payment to Seo Narain, and that he dishonestly appropriated this sum to himself. Their complaint, based on this case, was lodged on 21st June and the petitioner appeared in Court to answer to that complaint on 30th of the same month. The case of the petitioner is that the sum of Rs. 140 was given to him as a personal advance, that is, a payment on account in respect of brokerage due to him, and that these proceedings have been instituted by reason of disputes over a loss of Rupees 440 odd sustained by Kundu & Co. over certain transactions in barley, and also by reason of their having lost their contract with the Corporation to Messrs Hart & Co. by whom petitioner's cousin one Behari is employed. In a Small Cause Court suit instituted on 10th July and apparently still pending petitioner gives credit for the Rs. 140 and claims a sum of Rs. 53 as brokerage still due. Two of the partners in the firm of Kundu & Co., also their cashier and a broker or employee named Satkari Rai have deposed to the payment of Rs. 140 and its purpose. The last named, whoso memory was refreshed by the discussion that followed upon the receipt by Kundu & Co. of Seo Narain's pleader's letter of 23rd May, is obviously a false witness. Neither of the partners in their depositions suggests that he was present.
4. It is next clear that there is a dispute between Kundu & Co. and the petitioner over transactions in barley which took place in January to March 1915. These transactions have in fact resulted in a loss of over Rs. 400 and while the firm say that barley was bought by the petitioner on his own account, though with the “firm's money, his case is that these were ordinary brokerage transactions, that the loss is theirs and that brokerage is due to him. In respect of these transactions the partners in Kundu & Co. have contradicted one another. Beni Madhab, cross-examined on 17th and 24th August, says that the accounts have not been adjusted and further in respect of at least one of these transactions speaks of accused as a “broker.” On the other hand Bistu Narain cross-examined in September says that the barley accounts were settled and that the petitioner agreed to pay, though there is nothing under the petitioner's hand to show this or to fix him with liability for the loss. It is only by excluding these transactions that they can say that they owe nothing to the petitioner.
5. It has then been suggested, as strengthening the case for the prosecution, that on receipt of Seo Narain's letter of 1st June complainant searched for the petitioner and came into Court (21st June) because they could not find him. But petitioner, it appears, had gone to his country on 13th May, and that he had informed both Kundu & Co. and the firm of Seo Narain of his intention. His failure to present himself at Kundu's on his return some 15 days later is consistent with either the defence or the prosecution. In fact no real search was made for him. Bistu Narain admits that the petitioner had informed him of the English firms for whom the petitioner worked and yet at the place of business of no such firm was inquiry made. Again the complainant admits that this is the first and only instance of a part payment to a seller. In the present instance the goods had been delivered, and the second partner Bistu Narain says that bills are usually presented 10 or 12 days after delivery. The bill had in fact been with the petitioner from 10th March, and it seems strange that after such an interval the partners Kundu & Co., should suppose that the firm of Seo Narain would ask for only part payment. Further Seo Narain-Ram Narain are an old and well-to-do firm. Kundu & Co. had dealings with the firm for ten months and though the complainant and his partner say so, they could not have been ignorant of the standing of Seo Narain. It is not likely that such a firm would ask for a small sum-such as Rs. 140 to enable them to take delivery of a few gunny bags and the absurdity of such a statement, if made would have been patent.
6. Smaller matters, such as the witness Bistu Narain's obscure reference to information received from one of the proprietors of Seo Narain apparently about the beginning of May, and the complainant's allegation that there was short delivery of about a maund, need only be referred to. It is perhaps somewhat significant that the munib gomasta of Seo Narain will not distinctly deny that this shortage was mentioned to him by the petitioner as one of the reasons why he-had failed to realise the money due; Lastly the entry in the imprest account gives no particulars of the purpose for which the sum of Rs. 140 was handed to the petitioner while he by writing the words “howlat lya” distinctly takes it as an advance or part payment on his own-account. This too is the explanation he, gave when questioned by the munib gamasta on his return from his country. The entry supports the defence and appears to be inconsistent with the prosecution. For these reasons to my mind the probabilities are against the prosecution and in favour of the defence, and it seems to me that this is a case in which the Honorary Magistrate has overlooked the cardinal maxim that where reasonable doubt exists the benefit of that doubt should be given to the accused. I am therefore of opinion that the conviction of the petitioner should be set aside and that the fine, if paid, should be refunded.
Beachcroft, J.:— The petitioner was a broker of the firm of Messrs Kundu & Co., which carries on general business as merchants, agents and contractors, and deals amongst other things in grain. In March last the petitioner purchased grain to the value of over Rs. 1,200 on behalf of Messrs Kundu & Co. from the firm of Seo Narain-Ram Narain. On 18th April a sum of Rs. 140 was paid to the petitioner by one of the members of the firm of Messrs Kundu & Co. An entry of the payment was made in the suspense account of the firm and against that entry the accused wrote the words “howlat lya” and signed it. It is alleged on behalf of the prosecution that the payment made was to the petitioner for payment to the firm of Seo Narain-Ram Narain against the price of the grain purchased in March, as the petitioner told his employees that the firm of Seo Narain-Ram Narain wanted money to buy gunny bags. The petitioner's case is that the money was advanced to him as part payment of what was due to him for brokerage.
7. The Honorary Presidency Magistrate who tried the case convicted the petitioner under S. 406, I.P.C, and sentenced him to pay a fine Rs. 200. Though he found that the accused's story was false, which involves the finding that the money had been obtained by false pretences, he was of opinion that the petitioner had no intention of permanently appropriating the money, but intended to pay it back in a few days. The points relied on in argument before us are: (1) the words “howlat lya” against the entry in the account book; (2) the fact that the entry merely shows an advance, without giving particulars—we were told that in every other instance in the account book the purpose of the advance was noted; (3) that after this date, viz., 18th April, the petitioner acted for the firm of Messrs Kundu & Co. and might have cheated them of more; (4) that the complainant admits that he would have paid the whole hill if it had been presented to him, and the evidence is that the bill had been in the accused's hands for some time before 18th April; (5) that there is no other instance of part payment of a bill; (6) that the petitioner had a dispute with the firm which wanted to saddle him with the loss on a transaction in barley, which petitioner says should fall on the firm; (7) that the petitioner brought a suit in the Small Cause Court for his dues as brokerage in which suit he gave credit for the advance of this sum of Rs. 140. The case in fact has been argued before us as if it were an appeal and not an application in revision. This Court no doubt, has the power in revision to enter into questions of fact, but it is a power which, in my opinion should be sparingly exercised, for there is a danger that the sense of responsibility of the subordinate Courts as ultimate Judges of facts will be blunted if our powers are freely exercised, and we ought only to interfere in revision with findings of fact when it is demonstrated very clearly that they are wrong. Obviously the two first points urged for the petitioner are the strongest. The words “howlat lya” are no doubt consistent with the petitioner's story, but they are also consistent with that of the prosecution. As regards the second point there would have been more force in the contention if there had been some cross-examination of the complainant on the lines of the argument. Not only was he not definitely asked to explain the omission of particulars, but his attention does not seem to have been drawn, even indirectly, to the desirability of giving an explanation. Nothing more seems to have been done than to ask him about particulars of three entries (Exs. B, C and D) so widely separated from each other as pp. Ill, 211 and 302 of the account book. Then the witness Sailaja Kanta Roy says:
“There are some entries in this book in which the purpose for which the money is paid is entered.”
8. I find nothing in the evidence of any of the witnesses to justify the statement of the learned pleader that the purpose of the advance is always noted in other entries. If I misunderstood him and he did not intend to say that it was an invariable practice to enter particulars, the whole point of the argument is gone. There is obviously nothing in the argument that the petitioner might have cheated his employees of more, especially in view of the Magistrate's finding that he probably hoped to repay what he took. The fourth point is really part of the third to show that the petitioner might by presenting the bill have got over Rs. 1,200 into his hands and the force, such as it is of the argument, is considerably discounted by the fact that the suggestion made in cross-examination to Bistu Narain Kundu, one of the partners, is that the petitioner did present the bill several times for payment, but the firm would not may it. An obvious answer to the argument is that had the whole amount due on the bill been handed to the petitioner, the complainant firm would have at once demanded a receipt of the bill from Messrs Seo Narain-Ram Narain.
9. That there is no other instance of part-payment does not strike me as of any importance, when it is alleged to have been made in this case to oblige the firm of Seo Narain-Ram Narain on the petitioner's representation that they wanted to buy gunny bags. That the petitioner had a dispute with the firm, if the suggestion be true about a barley transaction does not to my mind go for much; that he instituted a suit in the Small Cause Court against the firm nearly three weeks after the complaint was lodged goes for nothing at all. These are all the points which were urged and I consider that the petitioner has entirely failed to show that the Magistrate's finding was incorrect. The Magistrate's language does not indicate any doubt he has believed the evidence of the principal witnesses, the two partners, who say that the petitioner got the firm to make the advance on the representation that the firm of Seo Narain-Ram Narain wanted to buy gunny bags. Thera is evidence coming from the latter firm that they did not ask petitioner to get the money from them for gunny bags. There is further evidence that the petitioner told the firm of Seo Narain-Ram Narain the false story that he could not collect the amount of their bill as the Babu was away and there is this fact to support the story of the prosecution, that directly the firm of Seo Narain-Ram Narain wrote to the complainant firm about the bill with a demand for payment, the latter wrote that Rs. 140 had already been paid through the petitioner.
10. Apart from the facts there is a difficulty arising out of the form in which the rule was issued. It was issued “on the grounds set out in the petition.” The first ground was a general one of mistake of law; the second, that dishonesty not having been found the conviction was bad in law; the third, that in view of the Small Cause Court suit the case was of the nature of a civil dispute; the fourth, that the entry in the account bock smashed the prosecution case; the fifth that on the Magistrate's findings the accused should have been acquitted. All except the fourth ground are grounds of law, but not one ground of law was urged at the hearing and the arguments advanced as to facts travelled far beyond the fourth ground. This may seem a technical objection, and it might perhaps rightly have been treated as such had the Crown been represented by anyone prepared to argue on the facts. But the Crown has not been represented at all. The learned Judges issuing the rule intended that the case might be argued on the facts, but unfortunately the terms of the rule did not make that clear. It is impossible to say that the Crown would not have been represented had it had clear notice that the findings of fact would be assailed. I am glad, however, that it is not necessary to base my opinion on a technical objection, for the Magistrate had reason for coming to his findings; and on the evidence, I find no sufficient ground for supposing that he came to anything but a right conclusion. I think the Rule should be discharged.
V.B/R.K
11. Conviction set aside.