Sir B.K Mullick, Kt. J.:— The accused was charged before the Sessions Judge of Patna with having committed cheating under s. 420 of the Indian Penal Code on the 5th November, 1921, the 27th November, 1921, and the 5th December, 1921. It is alleged that the accused presented to the Booking Clerks at Barh Station on the East Indian Railway certain forged military warrants and induced the Railway Officers to deliver to him either passes or tickets as follows

2. On the 25th November a pass for five soldiers' tickets from Barh to Bombay. On the 27th November two intermediate and three third class soldiers' tickets from Barh to Bombay and on the 5th December one pass for five third class passenger tickets from Barh to Giridih. The case was tried with the assistance of a Jury who were unanimously of opinion that the accused should be given the benefit of doubt and who returned a verdict of not guilty. The Sessions Judge considers that the verdict is improper and under s. 307 of the Cr. P C. he has referred the case to this Court for orders.

3. It appears that in or about March 1921 the Military Audit Office in Calcutta sus pected that a number of military warrants had been forged and that tickets had been obtained thereupon without any authority from the Military Department. In July 1921 Jatadhari Singh, an Inspector of the Criminal Investigation Department took up the inquiry and on the 4th August he instructed Railway Head Constable, Bambahadur Lal, to arrest the accused Ali Hyder. On the 10th August formal orders to that effect were issued to Bambahadur Lal by Jatadhari Lal and on the 21st August Bambahadur Lal posted himself at Barh Station in order to arrest the accused. It is not disclosed whether he had previously received information that the accused would be arriving at that station by the 3-30 train, but the evidence shows that the accused did arrive at that hour with a man called Ibrahim and that both men left the station in the company of a coolie who carried their roll of bedding and a tin trunk. Bambahadur Lal followed them to the shop of a halwai in the Bazar near the station and then went away to inform Mohammad Asghur Ali, the Sub-Inspector of the District the Police at Barh. He explains that he did this because he had been instructed not to arrest the accused in the precincts of the Railway Station as it was important that the Railway employees should not see him in Police custody before they were called upon to identify him before a Magistrate. When Bambahadur Lal returned with Mohammad Asghur Ali the accused was not in the shop, but he returned about 9 P.M and was arrested in another shop about 5 or 6 doors away. His companion Ibrahim arrived there shortly afterwards with the trunk and the bedding and he was also put under arrest. Both persons were then taken to the Police Station at Barh and with a key which was in Ibrahim's pocket the tin trunk was opened; and among the articles found therein two post-cards, a sheet roll and an account-book, all of which belong to Ali Hyder, play an important part in this case. The accused and Ibrahim were then placed before the Sub-Divisional Magistrate and remanded to custody in the local jail. On the 25th August a formal First Information was laid by Jatadhari Lal charging the accused with the offence of cheating and on the 5th September he was mixed up with other similarly dressed in the Court of the Sub-Divisional Magistrate of Barh and there in the presence of a Sub-Deputy Magistrate the material witnesses in the case identified the accused without difficulty.

4. It is not clear at what stage Ibrahim was discharged but he was certainly not sent up for trial to the Sessions Court and we are no longer concerned with him.

5. In the Committing Magistrate's Court the accused declined to make any statement but in the Sessions Court he filed a written statement pleading that the case against him was the result of a conspiracy on the part of the station staff and the” two Police Officers Jatadhari and Bambahadur, and that if any cheating had been committed by means of military warrants the offender was some other person with whom the Railway Officers had entered into a conspiracy and whom they were now screening. The accused also stated that he had been an active non-co operator and he had for that reason incurred the displeasure of the Police.

6. Now the evidence of the Booking Clerks Abdul Haq and Kishori Lal, if believed, makes it quite clear that there was both deliberate forgery and cheating in respect of Exs. 2, 3 and 4. The accused has not been tried for the offence of forgery hut the evidence is that at or about the time when Exs. 2, 3 and 4 purport to have been signed, the first two by Captain R.H.W Smith and the third by Captain Money, neither of the requisitioning officers was at the issuing office, namely, the Supply Depot at Peshawar.

7. It is clear that there has been gross forgery and the only question is whether the accused is the person who dishonestly used these forged warrants. It is also clear that upon the presentation of these three military warrants tickets were issued as stated above and that loss amounting to the price of the tickets was caused to Government in the Military Branch.

8. The learned Counsel who has represented the accused before us suggests that Abdul Haq and Kishori Lal have perjured themselves in order to pass off the guilt upon the accused and in support of his argument the learned Counsel points to various erasures and alterations of dates in the warrants and also of the names of the stations between which the journeys were to be performed and also of the number of passengers to be carried, his contention is that that the Railway Officers who must have known the rules of the Military Department and the checks prescribed for the examination of military warrants, could not have failed to notice these additions and alterations and that they were parties to the fraud. The explanation given by Abdul Haq and Kishori Lal, on the other hand, is that the alterations did not appear material and also that they were negligent in not noticing them. The question, therefore, is whether this explanation can be accepted. If the oral evidence had stood alone it would perhaps have been possible to hold that the Jury were justified in distrusting the evidence and drawing their own inference as to the credibility of the two witnesses, but there is material corroborating evidence against the accused which appears to me to have been completely ignored by the Jury. The evidence shows that immediately after the arrest the tin box of which Ibrahim had the key was opened at the Police Station and in it were found two post-cards addressed to Ali Hyder and an account-book bearing his name, his service roll-sheet and what is most import-and Ex. 12 a military warrant similar to Exs. 2, 3 and 4.

9. Now, it is contended that the box belonged to Ibrahim and that these articles were put into it by the Police on some later date after his house had been searched. The material evidence on this point is that of Mohammad Ashgar and Constable Ram Narain Lal who both depose that the articles were found in the box. I am satisfied that these witnesses are speaking the truth and that it is conclusively proved that the accused was the person who presented the three military warrants to Abdul Haq and Kishori Lal. In particular it is necessary to note that Ex. 12 is a military warrant purporting to have been issued by Captain Money who was commanding the Poonah Horse when the accused served in that regiment and that the accused had opportunities of copying this signature of that officer. The discovery of the post-cards, the account-book and the service roll leaves no doubt that the tin box was his, although the key was with Ibrahim and the discovery of Ex. 12 in the same box clearly connects him with the warrants which were presented to Abdul Haq and Kishori Lal. All these warrants are of a type formerly used in the Supply Depot at Peshawar where the accused was in service between 1919 when he left the Poona Horse and the 22nd February, 1921 when he deserted from Peshawar. During this time it was possible for him to obtain possession of these old forms which though discarded in 1916 had not been destroyed and the fact that one of them purports to bear the signature of Captain Money and the others the signature of Captain Smith who were both accused's Commanding Officers though in different branches of the service also helps to connect the accused with the preparation and the presentation of Exs. 2, 3 and 4.

10. It is contended that the new form is much smaller than the old form and that the Booking Clerks as well and the Station Master, through whose hands the warrants passed, must have known that the person who presented them was not entitled to use them. The answer to this is that although instructions appear to have been regularly issued by the authorities they were honoured more in the breach than in the observance and that so long as there was a signature and the form appeared to have been properly filled up, the Booking Clerk considered the authority sufficient.

11. As regards the question of identification which is the only material question in the case the evidence against the accused is, in my opinion, conclusive and the fact that he declined to give any explanation of his presence at Barh Station on the 21st August and of his possession of Ex. 12 is strong corroborating evidence of his guilt.

12. The learned Counsel endeavoured to make a point out of the fact that Mohammad Asghur Ali had not prepared a list of the articles found in the box and he contended that his statement in Court that a list was given in his diary was false, and for this purpose he read out to us a copy of the station diary said to have been obtained subsequently to the examination of the witness in which there was no mention of the discovery of any sheet roll in the box. It appears, however, from a copy of the diary which is on the record that the learned Counsel's statement is quite inaccurate and that one of the items entered in the list is the sheet roll in question. It is clear that if the prosecution had taken the trouble to put this document in evidence as a contemporaneous record of the search there could have been no room for the allegation that the documents were discovered after the house search and that they were put into the box for the purpose of supplying evidence against the accused.

13. Two other witnesses named Debendra Nath Sircar and Panchanan Banerjee were called to prove that on the 3rd July, 1921, 8th July, 1921 and 16th December, 1921, the accused obtained tickets on similar warrants at Bihar Sharif and Bakhtiarpur. Upon the authority of Emperor v. Panchu Das (1) it is perhaps open to doubt whether this evidence was legally admissible but it is not necessary for the purpose of this case to examine the authorities on the point. Apart from the evidence of Debendra Nath Sircar and Panchanan Banerjee there is sufficient evidence to prove the guilt of the accused and that the verdict of the Jury is one which no reasonable man could have given. If the verdict had turned merely upon the appreciation of oral evidence capable of being viewed either way but as to which we were inclined to take a different view from that of the Jury it is clear that we could not have interfered. But, in my opinion, the evidence here is so coercive that it is impossible to draw any conclusion except one adverse to the accused. In this view of the case it is our duty to interfere and having considered and given due weight to the opinion of the Jury and to the opinion of the Sessions Judge I think that to affirm the verdict would be to assist a gross miscarriage of justice. I accordingly reverse the verdict and find the accused guilty. Our attention was drawn to certain authorities of this Court namely Emperor v. Punit Chain (2) and Emperor v. Bhuiloton Singh (3) and it was contended that it was the duty of the Sessions Judge to question the Jury as to the reasons for their verdict and that in the absence of information as to the exact circumstances which operated on the minds of the Jury, this Eeference should be discharged. We are unable to accept this view of the duties of the Judge and we think the law is correctly stated in Edon Karikar v. Emperor (4), It was not competent to the Sessions Judge after a clear verdict was returned by the Jury to ask them for their reasons.

14. The result is that we find the accused guilty of the three offences charged and we sentence him to rigorous imprisonment for three years.

Sir John Bucknill, Kt., J.:— I agree.

15. Reference accepted.