Ralph Benson, Kt., J.:— In this case, the National Bank of India complained that one, Abdul Kareem Sahib, who is absconding1, and the two accused, (1) Kothandarama Chetty and (2) Srinivasa Charri, conspired together and succeeded in inducing the Bank to discount a number of forged pro-notes. The complaint against Abdul Kareem was of forgery, using forged documents and cheating, and the complaint against the other accused was of abetment of those offences.

2. The case against the absconding accused, Abdul Kareem, was fully proved, but the Presidency Magistrate did not consider that there was sufficient evidence against the two accused who were before him. He, therefore, discharged them. We are asked by the Bank to direct the Magistrate to commit them to the High Court for trial on the ground that the offeaces of abetment of forgery and of forged documents are triable exclusively by the High Court, and that there ia sufficient evidence to justify a charge being framed against them in respect of those offences. The specific documents in regard to the using of which the Magistrate was asked to frame a charge are Exhibit EE, dated 4th January 1912, Exhibit BB, dated 12 January 1912, and Exhibit FF, dated 22nd January 1912. They are pro-notes purporting to have been executed, the first and third by Tippu Sahib & Co., and the second by Syed Hussain Saib & Co. They are proved beyond all question to be forgeries. There is HO evidence that the accused forged or used the documents, but, in my opinion, there is sufficient circumstantial evidence to justify a charge against them of having abetted the fraudulent use of the documents by Abdul Kareem who knew them to be forgeries.

3. The evidence being circumstantial, it is necessary to see what were the relations of the parties and the course of business that was followed in their dealings with each other. This is set out to some extent in paragraphs Nos. 2 to 7 of the Magistrate's order of discharge. The 2 accused was the chief bill collector of the Bank. There was much discussion before us as to whether the 1st accused was a partner with Abdul Kareem in the firm of T. Abdul Kareem & Co., or whether he was only the manager. I think the evidence shows that he was a partner. He admittedly regarded himself as a partner until the 28 December 1910, and he described himself as a partner in sworn deposition and affidavits (Exhibits JJJ and YY). He says that he then ceased to be a partner and left his money in the firm as a deposit drawing interest. There is nothing but his own plea to support this. Neither he nor Abdul Kareem gave any notice to the National Bank or any one else of the dissolution of partnership. He continued to be regarded by the Bank as a partner. He continued to sign the name of the firm on innumerable cheques and letters right up to the date of the firm's insolvency on the 20 March 1912. There are references in the firm's accounts to the “capital” account of this accused. He sat at the same table with Abdul Kareem in their office, and his name does not appear in the pay-sheets of the firm with other employees. The clerks referred to him or Abdul Kareem indifferently when in doubt. The matter, however, is not of vital importance. It is certain that he acted with all the authority of a partner. He certainly was the regular manager of the firm's business, transacted most of it at all times, and used to be left in sole charge during the frequent absence of Abdul Kareem at Ambur. He, in fact, says that he regarded himself as a partner and expected Abdul Kareem to make him a partner. He had access to all the books of the firm, and was cognizant of all its transactions, and was deeply interested in its stability and financial success. The evidence shows that, in the nine months between July 1911 and March, 1912, some 200 forged pro-notes, purporting to be drawn by four dealers in Grodown street viz., Tippu Sahib & Co., Haji Syed Hussain & Co., and Kizier Mahomed & Co., and Shop Haji Madar Sahib & Co.) in favour of the firm of Abdul Kareem & Co., were endorsed and were presented by that firm to the National Ban and were discounted by it as genuine notes. It is said by the 8 prosecution witness, the cash keeper of the firm, that all the endorsements were written by Abdul Kareem, but, as the pro-notes were returned to the firm and are not now forthcoming, there is no means of verifying this evidence. If the evidence of the 12 prosecution witness is true (and I see no reason to doubt it), this 8 witness was a party to the interception of the letters sent by the Bank to the maker of the forged notes on the 10 February 1912 and may, therefore, reasonably be suspected as a party to the fraud. His whole evidence seems to be directed to throw the whole guilt on Abdul Kareem, and to shield the 1 accused. I do not accept his evidence in this matter, as it is improbable and seems to me to be designedly untruthful. It is, however, not shown by the prosecution that any of the forged notes were endorsed by the 1 accused. But there are no less than 69 letters (Exhibits R to R 68), signed by the 1 accused sending one or more of these forged pro-notes to the Bank to be discounted or requesting the return of the notes after payments. Then we find that precautions were taken to prevent these four firms from learning that their names were being forged. It was the practice of the Bank to send to the makers of pronotes about to beoome due notices of the fact about a week before the due dates. These notices used to be prepared by the discount clerk and handed to the Head Bill Collector and were delivered by him, or by one of the other Bill Collectors to the makers. It is obvious that if the notice regarding even one of the forged notes had reached the makers, the fraud would have been immediately discovered. It is, however, proved that, during all these nine months, not one of the notices regarding a single forged note reached the makers. There is evidence that each Bill Collector had a certain number of streets in which he would serve these notices, and that the 2 accused used to serve the notices on parties in the Godown street where the above four dealers lived, though it seems that other Bill Collectors also at times served them. Immediately after the frauds were discovered, that is, on the 18 March 1912, Mr. Bumpus of the _National Bank asked the 2 accused about the non-delivery of the bill notices and the 2 accused then told him that he had not delivered them to the makers, but had handed them to Abdul Kareem Sahib and Co., “because they asked him to deliver them.” The word they” would seem to refer to the 1 accused as well as to Abdul Kareem, but the point was not further pursued. Then there is further evidence of the utmost importance as regards the 2 accused. On the 10 February 1912, Mr. Munro, the Manager of the Bank, not wishing to rely on the usual bill notices which were on open sheets, sent out special closed letters informing the four Godown street firms of the pro-notes due by them. These letters were given to the Bank messenger (12 prosecution witnes) with other letters, including one to Abdul Kareem & Co., and when he went to the office of this firm to deliver that letter, the 2 accused, who was there, asked him to show the letters and, after reading the addresses, took possession of the four letters addressed to the Godown street firms and said that he would deliver them to the addressees, and that the witness need not be afraid. The witness says that the cash keeper (the 8 prosecution witness) already referred to was then present and took the messenger's book and brought it back signed in token of the delivery of the notices. The cash keeper, no doubt, denies this, but, as already stated, his evidence on this point may well be doubted. The 12 witness adds that he learned from another messenger (Krishniah, the 16 prosecution witness) that the 2 accused had been looking for him (the witness), and that he (the 2 accused) subsequently told him (the witness) that, if any one at the Bank should question him, he was to say that he had delivered the four letters to the addressees in Godown street. This action by the 2 accused is certainly suggestive of a guilty knowledge on his part. If he innocently took the letters, thinking that delivery to Abdul Kareem and Co., was as good for all purposes as to their clients, the dealers in the Godown street, there would have been no occasion for him to caution the witness to conceal the truth from the Bank authorities. It is certain that the letters never reached the addressees. The Magistrate apparently did not disbelieve the 12 witness. His story is supported by Krishniah and the letter book. If true, it seems to me to establish, in conjunction with the other evidence, a prima facie case against the 2 accused. Looking at the evidence as a whole, it is clear that Abdul Kareem must have conceived this plan of using forged pro-notes (purporting to be made by the four Godown street dealers) sometimes before the early part of July 1911. He could not have hoped to succeed in any continued course of fraud unless he could prevent the bill notices issued by the Bank from reaching the ostensible makers of the notes, and also unless he felt assured that the forged notes would not be detected when being endorsed and dealt with by his own firm, that is, by the 1 accused, whether he was a partner, or only the manager, of the firm. The fact that he proceeded to pass some 200 of these forged notes within the next nine months, goes far to lead to the inference that he had secured the necessary assistance both in the Bank and in his own firm. It is suggested that the bill notices might have been suppressed by the discount clerk of the Bank whose duty it was to prepare them. That is true; but there is no evidence that they were so suppressed. On the contrary the admission of the 2 accused, that he handed the bill notices to Abdul Kareem Sahib & Co., because they asked him to do so, negatives the suggestion. This admission coupled with the evidence that the 2 accused took active steps to intercept and did, in fact, intercept the special letters to the makers of the notes seat out by the Bank on the 10 February, 1912, seems to me to be evidence from which a prima, facie inference of the guilt of the 2 accused might properly be drawn. The Presidency Magistrate says:— “It is unlikely that a big firm dealing in lacs would have taken a poor bill collector into its confidence.” But why should it be unlikely, if it would facilitate the intended fraud? This Bill Collector was the Head Bill Collector and Mr. Bumpus' evidence is that it was the practice for the writer of the bill notices to hand them to the Head Bill Collector for delivery. If so, he was the person who could best arrange to prevent their delivery to the makers. That he was no petty official is clear from the fact that his salary was Rs. 48 per mensem, that is, considerably more than that of the cash-keeper of the firm, whose pay was Rs. 40. It is further suggested for the 2 accused that he may have been bribed to suppress the bill notices or to hand over the special letters which the Bank sent to the makers of the notes without knowing that he was hereby aiding Abdul Kareem to use the forged notes as genuine. That, of course, is a possible defence, and if believed, it might justify the acquittal of the 2 accused, but it seems less probable than that he was made an accomplice having regard to the course of systematic fraud that was carried out in regard to some 200 pronotes during the long period of nine months. The existence of a possible ground of defence is not, in my opinion, a sufficient reason for a Magistrate to refuse to commit a person for a trial against whom a prima facie case is made out. Otherwise, the thief found in possession of jewels recently stolen ought never to be committed for trial, since it is always possible that the jewels might have been foisted on him without his knowledge. It is ordinarily for the Court that has power to try the case, not for the Magistrate who makes the preliminary inquiry, to determine whether, having regard to all the facts and probabilities, guilt is brought home to the accused. As observed in the case of Emperor v. Varji-vandas(1), (in which, as in the present case, the Presidency Magistrate had discharged a person accused of abetting the use of a forged document) “the words in section 209 (Criminal Procedure Code), ‘sufficient ground for committing,’ have been explained to mean, not ground for convicting, but where the evidence is sufficient to put the accused on his trial, and such a case arises when credible witnesses make statements, which, if believed, would sustain conviction. The weighing of their testimonies with regard to improbabilities and apparent discrepancies is more properly a function of the Court having jurisdiction to try the case. It is not necessary that the Magistrate should satisfy himself fully of the guilt of the accused before making a commitment. It is his duty to commit when the evidence for the prosecution is sufficient to make out a prima facie case against the accused, and he exercises a wrong discretion if he takes upon himself to discharge an accused in the face of evidence which might justify a conviction.”

4. Turning now to the case of the 1 accused it is contended on his behalf that he is not shown to have negotiated or directly used or abetted the use of any of the three forged notes specified in the charge. The case against him depends on the inference that he must have abetted the whole series of frauds by Abdul Kareem because they could not have been executed in so many instances, extending over a period of nine months, without his knowledge and assistance, since he was the manager of the business of Abdul Kareem & Co., which firm endorsed the forged pro-notes and negotiated them with the Bank. Abdul Kareem was not only the chief partner in the firm of that name, but also in the firm of Noordeen & Co. It is the case for the defence that all the forged pro-notes were endorsed by Abdul Kareem, and were negotiated with the Bank for the benefit of Noordeen & Co., and that the 1 accused had no interest in the latter firm and had no knowledge of its transactions and signed the letters, Exhibits R to R63, as, a matter of routine and without any knowledge that these letters dealt with forged pro-notes. It is not easy to believe that the 1 accused was so ignorant. Mr. Manro, the Manager of the Bank, proves that, out of the 54 letters in the NNN” series sent by Noordeen & Co., 44 bear the initials of the 1 accused and that of the 71 corresponding letters (000 series) of Abdul Karaam & Co., all except two are signed by the 1 accused.

5. Again when the 1 accused interviewed Mr. Munro, as he did several times regarding the large outstanding account of his firm for pro-notes, he never made any distinction between those negotiated for Noordeen & Co.'s business and those for Abdul Kareem & Co.'s business.

6. These facts and a great deal of other evidence make it difficult, if not impossible, to believe that he knew little or nothing of Noordeen & Co.'s affairs. The 4 prosecution witness is the bill clerk of the firm, and he says that he used to prepare letters like those in the Exhibit R series under instructions from Abdul Kareem or the 1 accused, and hand over the letters and the pro-notes concerned to Bashyam Naidu, who used to send them to the 1 accused for signature. He adds:— Accused No. 1 was the manager of the firm. He used to look after all these things.” No doubt the evidence is that as the forged pro-notes concerned Noordeen & Co.'s business, i.e, Abdul Kareem, it was the latter who endorsed all the forged pro-notes in the name of the firm. But we find that apparently no precautions were taken to prevent the 1 accused from seeing and handing the forged notes. Exhibit R to R 68 are all letters signed by the first accused, either sending forged notes to the Bank to be paid, or asking for the return of forged notes after payment. It is suggested for the first accused that he signed these letters as a mere matter of routine and without knowing that he was dealing with forged notes. That is, of course, a possible defence, and, if believed by a Court trying the case, it would justify his acquittal, but it is not altogether easy to accept the plea where the transactions are so numerous and spread over so long a period, and where we find that many of the letters, (viz., R 1, R 3, R 16, R 17, R 25, R 30, R 37, R 38, R 44, R 50, R 54, R 62 and R 65), related to notes of the firm of M. Kizier Mahomed and Co., which had dealings in true pro-notes with Abdul Kareem & Co. for five years previously and whose true signatures, therefore, must have been well-known to the 1 accused. Four at least of these letters enclosed forged pro-notes and asked the Bank for payment of them, No doubt the signatures of the maker's firm in those four cases were in Hindustani and the first accused is a Teluguman, but it does not follow that he is unable to identify Hindustani signatures with which he is familiar. The Magistrate is in error in supposing that the first accused did not sign any of the Exhibit R series after the 18 October 1911. He, in fact, signed 36 of the series after the date, asking for the return of one or more of the forged pro-notes. There is no proof or even suggestion that any precautions were taken by Abdul Kareem & Co., to prevent the innumerable forged notes that he was endorsing to the Bank from passing through the hands of the 1 accused, who, as already stated, was all that time managing the business of Abdul Kareem & Co., and was in sole management during the frequent absence of Abdul Kareem at Ambur. The entry of the pro-notes relating to Noordeen & Co.'s, business in a separate part of the pro-note book kept by Abdul Kareem & Co., would seem to have little bearing on the question of the 1 accused's knowledge, since he certainly had access to that part of the book as to other parts of it; and no precautions whatever appear to have been taken to prevent his handling the forged notes and he, in fact, did handle a great number of them as shown by the 69 letters in the Exhibit R series. If the 1 accused was, as I think he was, a partner in the firm of Abdul Kareem & Co., he had a direct pecuniary responsibility for the amounts of every one of these forged notes. The signatures of the forged notes of the other three firms were in English or Tamil and bore no resemblance whatever to their genuine signatures, and it is difficult to believe that an experienced man of business like the 1 accused could have been innocently handling so many forged notes for so long a period. Even if he was not a partner, his position as manager with all his capital deposited in the firm and expecting to be made a partner and his very intimate and confidential relations with Abdul Kareem, render it not improbable that he could be induced to join him in his plans, and his position, as actual manager, conducting the business day by day leads to the inference that his assistance must have been secured by Abdul Kareem before he entered on his long course of systematic fraud. It is significant that the special letters to the makers were intercepted by the 2 accused at the office of Abdul Kareem & Co., of which the 1 accused was the manager.

7. Looking at the case as a whole, I think that there is sufficient evidence to justify the framing of a charge against both the accused of having abetted Abdul Kareem in using as genuine the three forged notes in question knowing them to be forged.

8. At the end of his argument, Mr. Richmond raised the question whether this Court has jurisdiction as a Court of Revision to interfere with a Presidency Magistrate's order of discharge, and he also relied on a dictum in the case reported in Weir's Law of Offences and Criminal Procedure, 4 Edition, Vol. II, page 255, where it is stated that the fact that we might be disposed to take the view that the Magistrate discredited the prosecution evidence for insufficient reasons is in our judgment no ground for interference.” This dictum must, I think, be taken as applicable only to the particular case. No doubt the High Court does ordinarily, when acting in revision, take the facts as found by the Magistrate, but there is nothing in the Code of Criminal Procedure to limit this Court's power of interference to cases where the Magistrate has ignored or contravened an express provision of law. The case of Charoo-bola Dabee v. Barendra Hath, Mozumdar(2) relied on in the case reported in Weir's Law of Offences and Criminal Procedure, 4 Edition, Vol. If, page 255, is opposed to the decision of the Full Bench of the Calcutta High Court in Hari Das Sanyal v. Saritulla(3), as pointed out by Ghose, J., in Dwarka Nath Mondul… v. Beni Madhub Banerji…Opposite Party.(4). Each case must be decided on a view of all the evidence and probabilities in the case. The power of the Court to interfere is clear from a consideration of sections 435 and 439, Criminal Procedure Code, read with section 423 as explained in Emperor v. Varjivandas, Bari Das Sanyal v. Saritulla, Dwar-ka Nath Mondal v. Beni Madhub Banerji and in Malik Protap Singh v. Khan Mahomed(5), where all the cases are referred to. In the present case, it is clear from a perusal of paragraphs 13 and 17 of the Magistrate's order of discharge that he entirely misconceived the effect of the prosecution evidence and the inferences that might properly be drawn from the existence of so long continued and systematic a course of fraud and the steps taken to prevent its discovery. In such a case, I cannot doubt that the High Court has power, in its discretion, to order the Magistrate to commit the accused, and I would do so in this case.

9. As, however, my learned brother takes a different view, the case will be laid before another Judge for his opinion in accordance with section 429 of the Criminal Procedure Code.

Sundara Aiyar, J.:— This is an application requesting this Court to set aside the order of the Second Presidency Magistrate in C.C No. 10,118 of 1912, discharging the accused in the case, against whom complaints were laid of offences under sections 465, 471, 420 and 109 of the Indian Penal Code. The Magistrate held, after holding an elaborate inquiry under Chapter XVIII of the Criminal Procedure Code, that there were not sufficient grounds to commit the accused for trial by the High Court.

10. The petitioner before us is the complainant in the case, the National Bank of India Limited, through its Agent and Manager, Mr. W.R Munro. In the course of the arguments, the learned Counsel for the accused contended that this Court had no power under the Criminal Procedure Code to set aside the order of a Presidency Magistrate discharging an accused person under section 209 of the Criminal Procedure Code, and that, although the Court had power under section 15 of the Charter to quash such an order, it was confined to oases where a question of jurisdiction was raised or where Magistrate disregarded a positive provision of law, and that, as no such ground was urged in this case, the Magistrate's order could not be disturbed. It will be convenient to dispose of this argument before proceeding to deal with the merits of the case.

11. I am of opinion that the High Court has power, under sections 435 and 439. of the Criminal Procedure Code, to set aside the order of discharge under section 209 of the Criminal Procedure Code and to pass such appropriate order as seems fit, either directing the commitment of the accused for trial to the Sessions or directing further inquiry into the case. Section 435 empowers the Court to call for and examine the records of any proceeding before any inferior Criminal Court. The Court of a Presidency Magistrate at Madras is, undoubtedly, within the section. Under section 439, the Court is empowered in the case of any proceeding, the record of which has been called for, to exercise any of the powers conferred on a Court of Appeal, the only limitation being that it should not convert a finding of acquittal into one of conviction. The powers of a Court of Appeal are enumerated in section 423(1), which states separately what an Appellate Court may do (a) in an appeal from an order of acquittal, (b) in an appeal from a conviction and (c) in an appeal from any other order. In oases coming under sub-clause (c), a Court of Appeal may alter or reverse such order. When the High Court has called up, under section 435, the record of proceeding before a Presidency Magistrate by which an accused person is discharged, the nature of the order which it may pass after examining the records of the proceeding must be determined by reference to subclause (c) of section 423(1) as the proceeding in question is one not relating to 6ither an acquittal or a conviction. The Court's power, therefore, is to alter or reverse the order of the Presidency Magistrate. In what manner the alteration may be made is not laid down in section 423. The inference is that the Court may make such alteration as appears fit to it. The fact that the Criminal Procedure Code does not provide for an appeal against the order of discharge is immaterial. The nature of the powers that the Court has in revision is the same as that which a Court of Appeal has in the case of an appeal from any order against which an appeal is provided by the Code, as in the cases coming within sections 405 and 406. I do not think that any restriction should be placed on the comprehensive character of the High Court's powers under section 439 on the ground that section 437 expressly confers on the High Court and the Sessions Court power to set aside a discharge made either by a District Magistrate or by a Magistrate subordinate to him. The result of cutting down the ordinary signification of the language of section 439 would be anomalous; under section 436 a Sessions Judge and a District Magistrate have power in certain cases to direct an accused person who has been discharged to be committed for trial, It is extremely unlikely that it was intended that the High Court should not have similar power where there has been an improper discharge by a District Magistrate or other inferior Magistrate. It could be held to have such power only by construing section 439 without limiting the comprehensiveness of its language. I see no good reason for not giving full effect to the terms of section 439.

12. There has, no doubt, been a certain amount of conflict of opinion in the decisions of the Courts on this point. In Hari Bass Sanyal v. Saritulla, colville v. Kristo Kishore Bose(6) and in Malik Protap Singh v. Khan Mahomed, it was held that the High Court has power under section 439 to set aside an order of discharge passed by a Presidency Magistrate. The contrary view was apparently adopted in Debi Bux Shroff v. Jutmal Dungarwal(7), it was conceded by Counsel that section 439 does not empower a High Court to set aside such an order of discharge and Counsel's view was apparently acquiesced in by the Court. I do not think that the case can be regarded as an authority on the question.

13. In Emperor v. Varjivan Das, the Bombay High Court upheld the view taken in Colville v. Kristo Rishore Bose and Hart Bass Sanyal v. Saritulla, dissenting from the opinion expressed in Charoobala Dabee v. Barendra Nath Mozumdar. For the reasons, I have already stated, I agree with the opinion in favour of the broader construction of the section in accordance with the apparent meaning of its language and hold that this Court has power in a proper case to set aside an order of discharge by a Presidency Magistrate. The Counsel for the accused referred to Weir's Law of Offences and Criminal Procedure, 4 Edition, Vol. II, page 255. But in that case the rule was issued by the Court under section 15 of the Charter Act. It is true that in the judgment of the Court (White, C.J, and Davies, J.,) there is the observation:— In any case the finding of the Magistrate is a finding of fact, with which we do not think this Court ought to interfere in the exercise of its powers either under the Code or under the High Court's Act, assuming that this Court has jurisdiction under either or both of these enactments. It would have been otherwise if the Magistrate had ignored or contravened an express section of the Code or some other provision of law as in the case reported as Charoobala Dabee v. Barendra Nath Mommdar But the fact that we might be disposed to take the view that the Magistrate discredited the prosecution evidence for insufficient reasons is, in our opinion, no ground for interference.” I do not think that this passage contains any opinion of the learned Judges as to the scope of the jurisdiction of the Court, but merely states ceertain principles which the Court will apply in the exercise of its powers, either under the Code or under the Charter Act. It is unnecessary, in my view of this Court's powers under section 439, to express any opinion on the scope of its jurisdiction to interfere under section 16 of the Charter Act. If it were necessary to do so, I would be strongly inclined to hold that no hard and fast limitation should be placed on the exercise of our powers of superintendence over the proceedings of inferior Courts. I would hold with Woodroffe, J., [see Lekhraj Bam v. Debt Pershad(8)], that there is no species of injustice which this Court would be powerless to correct under the Charter where its interference is called for. Charoobala Dabee v. Barendra Nath Mozumdar, Palaniappa Chetti v. Annamalai Chetti(9), Jogiah v. Emperor(10), Virabadran Chetti v. Nataraja Desikar(11), Nagaraja Pillai v. Vythinatha Iyer(12) support the view that this Court has plenary powers of interference under the Charter, where it is needed to correct injustice. [See also Sukh Lal Sheik v. Tara Chand Ta(13), Chakowri Lall v. Moti Kurmi(14), Lolit Mohan Moitra v. Surja Kanta Acharjee(15)] although a narrower view was adopted in Laldhari Singh v. Sukhdeo Narain Singh(16) and Kedar Nath Sanyal on behalf of Mr. T.M Thaddeus v. Khetra Nath Sikdar(17) and some other cases.

14. Proceeding to deal with the merits of the case, I have, after full consideration of the lengthy arguments adduced to us at the Bar, come to the conclusion that there is no ground for interfering with the order of the Magistrate in the exercise of our powers of revision. The facts of the case stated very briefly are as follows:— One Abdul Kareem was carrying on business in piece-goods as a wholesale merchant, and it ia the case for the prosecution that the 1 accused, Kothandarama Chetti, was his partner in the firm of Abdul Kareem & Co. One Noordeen Sahib was the father of Abdul Kareem and had a firm styled Noordeen Shaib & Co., of which Abdul Kareem was one of the partners. The National Bank of India, the complainant in the case, had dealings with both Noordeen Sahib & Co., and Abdul Kareem & Co. Goods used to be consigned to both the firms through the Bank, which the consignees had to take delivery of, after paying for them. The consignees used to send to the Bank pro-notes for the price of the goods, either their own or pro-notes executed in their favour by others to whom they sold their goods. In the latter case the pro-notes would be endorsed by them in favour of the Bank Noor-deen's credit fell latterly and the Bank refused to discount pro-notes executed or endorsed by his firm. It, however, continued to honour pro-notes executed or endorsed by Abdul Kareem & Co. A Manchester firm of the name of Messrs. Gunnis & Go., in 1908 guaranteed the discounting of pro-notes by Abdul Kareem & Co. with the Bank to the extent of one lakh of rupees. Mr. Munro, prosecution witness No. 1, manager of the Bank, admits that the Bank used to discount pro-notes sent by Abdul Kareem & Go. not only for the goods consigned to that firm butalso for goods consigned to Noordeen & Co., for which the Bank would not accept pro-notes sent by Noordeen himself. It is also admitted by Mr. Munro that sometimes goods consigned to Abdul Kareem & Co., used to be delivered by the Bank to Noordeen & Co., on pro-notes being sent for their value by Abdul Kareem & Co.

15. Now, it is admitted for the prosecution that the 1 accused was not a partner of Noordeen & Go. and had no interest in the business of that firm. It is not disputed on the other hand on behalf of the accused that the 1 accused was the manager of Abdul Kareem & Co., even if he was not in reality a partner, and that the business of Abdul Kareem & Go. was mainly conducted by him, that he signed the firm's name in all kinds of documents including pro-notes, interviewed dealers on behalf of the firm and conducted himself in every way as if he were a partner. The position, therefore, was this: that Abdul Kareem was interested in two businesses, one that of Noordeen & Co., of which he was a partner with others not including the 1 accused, the other, that of Abdul Kareem & Co., of which, he was either the sole proprietor or the major proprietor with the 1 accused as a minor partner. Abdul Kareem, after Gunnis & Co. guaranteed in 1908 payment for pro-notes discounted by him with the Bank, was sending to the Bank pro-notes executed to Abdul Kareem & Co. and endorsed by that firm both for goods consigned to Noor Deen & Go. and for goods consigned to Abdul Kareem & Co. With regard to the latter class of goods, the pro-notes were sent with a view to delivery of the goods being made, sometimes to Abdul Kareem & Co., itself and sometimes to Noordeen & Co. The 1 accused was the manager of Abdul Kareem & Co. whether he was also a partner or not and as such took part in the discounting with the Bank, whether they were for goods consigned to Noordeen & Co., or for goods consigned to Abdul Kareem & Co., and delivered to that firm, or delivered to Noordeen & Co., though consigned to Abdul Kareem & Co. The second accused was the Head Bill Collector employed by the National Bank. It was the duty of the Bill Collectors to serve notices sent by the Bank to those from whom payment was due to it for the pro-notes discounted by it, and it was also their duty to collect the amounts due on those bills to the Bank.

16. Both Noordeen & Co. and Abdul Kareem & Co. were adjudicated insolvents towards the end of March 1912. It was then found that many of the notes sent by Abdul Kareem & Co. to the Bank for discounting and purporting ???I to have been discounted by four firms of dealers in favour of Abdul Kareem & Co. were forgeries. Over and above the amount guaranteed on behalf of Abdul Kareem & Co. by Messrs. Gunnis & Co., there was a sum of Rs. 45,000 or Rs. 50,000 due to the Bank on pro-notes purporting to be executed in favour of Abdul Kareem & Co. by the four firms and endorsed and sent by that firm to the Bank to be discounted. The result was that the Bank lost heavily in consequence of having discounted false pro-notes sent by Abdul Kareem & Co. The complainant Bank's case is that both Abdul Kareem and his partner, as they style him, the 1 accused, conspired together to forge the false pro-notes and to use them as genuine in order to cheat the Bank. The case against the second accused is that he also conspired with Abdul Kareem and the 1 accused to effectuate the fraud. It is said that he helped them in the fraud by delivering notices of pro-notes, about to become due, addressed to the executants of the notes, not to the addressees, but to Abdul Kareem & Co., the result being that Abdul Kareem & Co., were able to make payments for the notes to the Bank without the alleged executants ever being aware of any claim on the part of the Bank against them. Till the 18 of March 1912, all pro-notes sent by Abdul Kareem & Go. and discounted by the National Bank were duly paid by Abdul Kareem & Co. On that day, two bearer cheques drawn by the firm on the Bank of Madras and given to the National Bank as payments towards pronotes were dishonoured by the Madras Bank. Till then the National Bank was not aware that the pro-notes of the four firms already referred to were forgeries. For some time previously, the Bank had been dissatisfied with Abdul Kareem & Co. on account of notes not being paid for promptly and the amount due on them appearing to be in excess of the value of the goods delivered by the Bank. In February 1912, consequently, the Bank sent letters enclosed in covers to the four firms directly. It is the case for the prosecution that these letters were intercepted by the second accused and caused to be delivered to Abdul Kareem & Co. with the result that the four firms were not appraised of them. It is also the prosecution case that the 2 accused systematically with held the delivery of the notices sent by the Bank to the four firms intimating the due dates of the pro-notes purporting to be executed by them and that he did so on account of a conspiracy between him and Abdul Kareem and the first accused to defraud the Bank. The Bank's complaint was laid against Abdul Kareem as well as the present accused, but Abdul Kareem absconded shortly after his insolvency, and the Bank has not been able to proceed against him. The question that the Magistrate has to decide was whether there was ground for committing the accused or either of them for the offences complained of. Against the second accused, the complaint was of abetment of the offences of forgery and dishonestly using forged documents knowing them to be forged. The first accused was charged both as abettor and principal offender. Although many pro-notes executed by the four firms and alleged to be forgeries were put in evidence, the inquiry itself was limited to three pro-notes Exhibits BB, EE and FF. Of these, Exhibit BB purported to be executed by the firm of Haji Syed Hussain Sahib & Co. on the 20 of March 1912 and Exhibits EE and FF by S. Tippu Sahib & Co. on the 4 of January and the 22 of January respectively. The other two firms, whose pro-notes were also sent by Abdul Kareem & Co. for discounting were Haji Madar Sahib & Co. and M. Kizier Mahomed Sahib & Co. No pro-note by either of them, however, formed the subject of direct inquiry by the Magistrate.

17. Now, neither Tippu Sahib & Co. nor Haji Syed Hussain Sahib & Co. ever executed pro-notes in favour of Abdul Kareem & Co., one of them having had no dealings with the firm at all and the other having had only cash dealings. The three pro-notes, Exhibits BB, EE, and FF, were admittedly sent for discounting by Abdul Kareem and not by the 1 accused. It was admitted before us by Mr. Barton, the learned Counsel for the complainant, that the charges of forgery and using forged documents knowing them to be forged could not be maintained against the first accused: but he strongly contended that a good prima facie case of abetment of those offences has been made out, and that the Magistrate ought to have committed him to the Sessions. The main argument in support of that contention is that the 1 accused was a partner with Abdul Kareem in the business of Abdul Kareem & Co., that he took a prominent, if not the most prominent, part in the management of the business of the firm, that it was impossible that the numerous false pro-notes by the four firms could have been discounted by the firm with the Bank without his knowledge and complicity, that as a partner he must have profited by the fraud equally with Abdul Kareem, and that, therefore, he must be taken to have conspired with Abdul Kareem in the commission of offences under sections 465 and 474 of the Indian Penal Code with reference to the three pro-notes in question. There has been a good deal of argument both before the Magistrate and before this Court on the question whether the first accused was in reality a partner or was only a paid manager of Abdul Kareem So Co. I do not think that this question deserves, in the circumstances of the case, the amount of attention that has been paid to it.

18. There can be no doubt that the 1 accused on more than one occasion claimed to be a partner in the firm, as in 1909 (see Exhibit JJJ) and in January 1910 (see Exhibit YY.) His Counsel, on the other hand, contends that in reality he never was a partner, but that he called himself one, because Abdul Kareem had originally promised him a share in the business as partner, and that the relationship between the two was definitely settled in December 1910, when it was decided that he was not to be a partner. The firm's ledger, Exhibit 00, shows that the first accused had deposited a considerable sum of money with the firm about Rs. 7,000 originally. He was treated at the settlement of accounts in December 1910 as entitled only to interest on that amount, besides a salary or allowance of Rs. 200 a month for managing the business. The complainant has not been able to adduce any evidence that the first accused had any specific share in the business or was entitled to any specific share of its profits. There was no written agreement of partnership. If the 1 accused was a partner in law, his beneficial interest was evidently confined to receiving Rs. 200 a month and interest on his money deposited with the firm. There is absolutely no evidence that he had any higher right. At the same time it may be that there is enough evidence to show that he held himself out as a partner of Abdul Kareem and conducted himself in such a manner as to make third parties believe that he was a partner. I do not consider it necessary to pronounce a definite opinion on this point, as the question of big civil liability for the debts of the firm does not arise in these proceedings. But it is clear to my mind that there is not the slightest evidence that, if he was a partner, his beneficial interest extended to more than what I have stated above. His position, therefore, was this: that, as partner or servant he had the right to receive Rs. 200 a month, and he also was entitled to interest on the amount deposited in the firm. At the same time he had absolutely no right in the business of Noordeen & Co., while Abdul Kareem was the proprietor, subject only to the payment already mentioned to the first accused, of the business of Abdul Kareem & Co., and part proprietor of the business of Noordeen & Co. Prosecution witness No. 1 admits that the 1 accused did not transact with him the business relating to the goods consigned to Noordeen & Co., for which pro-notes were sent to the Bank by Abdul Kareem & Co. It is also admitted that Abdul Kareem was carrying on the work of Noordeen & Co., in the premises of that company. The pro-notes relating to Noordeen & Co.'s goods were sent by Abdul Kareem & Co., though the 1 accused, assuming him to have been a partner of Abdul Kareem & Co., had no concern with Noordeen & Co.'s dealings. In the account books of Abdul Kareem & Co, it appears that the pro-notes relating to Noordeen & Co's. goods were treated separately from those relating to Abdul Kareem's goods. In Exhibit CCC, the book of pro-notes, the two are entered separately those relating to Abdul Kareem & Co, being entered in the first part of the book and those relating to Noordeen & Co.'s goods in a later part of the book the two parts being separated by a number of blank pages. The prosecution witness No. 4, the bills clerk of the firm, and the prosecution witness No. 8, the cash-keeper both swore that the pro-notes entered in the 2 part were brought into the firm by Abdul Kareem himself. Having regard to the 1 prosecution witness's admission that the 1 accused did not transact business with the National Bank with respect to the goods consigned to Noordeen & Co., and also to the fact that the 1 accused had no real concern with the business of Noordeen & Co., I see no reason for disbelieving the evidence of these witnesses that the 1 accused had nothing to do with the taking of those pro-notes from the four firms. Mr. Barton laid much stress on the fact that the pro-notes relating to Noordeen & Co., during January to March 1912, amounted only to about Rs. 18,000 while the amount of the false pro-notes of the four firms sent to the Bank by Abdul Kareem amounted to a very much larger sum. The inference he asks the Court to draw is that the remainder of the pro-notes related to Abdul Kareem & Co.'s own goods, in which the 1 accused had a substantial interest as partner and the business relating to which was managed mainly by him. Consequently he says, he must have been a party to the sending of the false pro-notes. But it appears from the evidence of the prosecution witness No. 8, the cash-keeper, that the goods delivered to Noordeen & Co., the pro-notes to which passed through Abdul Kareem & Co., amounted in value to as much as Rs. 71,361 on the 18 March 1912. The false pro-notes of the four firms are not shown to have amounted to a larger sum than this. I have already observed that the Bank delivered to Noordeen not only goods originally consigned to Noordeen & Co, but also other goods consigned to Abdul Kareem & Co., which Abdul Kareem transferred to Noordeen & Co., and asked the Bank to deliver to Noordeen & Co. The first accused, whose interest whether as partner or otherwise in Abdul Kareem & Co., was limited in the manner already mentioned, could hardly have any right to object to Abdul Kareem transferring any portion of the goods of the firm to Noordeen & Co. Whenever he chose to make such transfer, Abdul Kareem alone had to deal with the question of the payment to the Bank for the goods so transferred. The books of Abdul Kareem & Co., openly and plainly, show that, with respect to the goods originally consigned to Noordeen & Co., and those transferred to that firm, the pro-notes sent to the Bank were treated separately from the notes relating to the goods delivered to Abdul Kaream & Co. It is true that the 1 accused, if his conduct amounted to holding himself out as partner in Abdul Kareem & Co., would make himself responsible for the payment of all pro-notes sent by the firm to the National Bank for discounting. With his liability in a Civil Court on this ground, we have no concern in these proceedings; but if, as appears from the evidence for the prosecution, he was not taking part in the actual management of the business relating to goods, delivered to Noordeen & Co., is there any reason for supposing that he was aware that the pro-notes which appear in the second part of Exhibit CCC and which, according to the evidence of the prosecution witnesses Nos. 4 and 8, related to Abdul Kareem's own business connected with Noordeen & Co., were false? In my opinion, there is not. If all that appeared was that he was a partner of Abdul Kareem & Co., and made himself civilly responsible for the payment of the false pro-notes, there might be reason for inferring that he must have known that they were forgeries. We may assume that the prosecution might then be entitled to ask the Court to hold that he must have entered into an understanding with Abdul Kareem in pursuance of which the pro-notes were sent to the Bank for discounting. But the basis for this inference, to my mind, is altogether shaken, when it appears that the false pro-notes were treated separately and that the reason for doing so was that they related to Noordeen's deliveries in which Abdul Kareem was alone concerned. I can see no reason for inferring that the 1 accused must still have been aware that they were forged.

19. To bring home the knowledge of this fact to the 1 accused, the prosecution has produced Exhibit R series 69 documents signed by the 1 accused, some of which were letters sent along with the pro-notes for discounting, and the others letters asking for the return of the pro-notes after they had been discharged. The covering letters sent along with Exhibits BB, EE and FF were admittedly not signed by the first accused but it is alleged that four other letters of Exhibit R series covering the pro-notes senb to the Bank for discounting were signed by him. From this fact we are asked to infer, first, that he must have known that the pro-notes, to which those four letters related, were forgeries, and from that fact to infer further that he must have been a party to a conspiracy to send those four pro-notes and all the other false pro-notes of the four firms (including Exhibits BB, EE and FF) to the Bank for discounting. Now the four letters which were signed by the first accused are Exhibits R R3, R25 and R30. Of these, Exhibits R, and R3 were written in July 1911, and Exhibits R25 and R30 in October. The pro-notes relating to these purported to be signed by Kizier Mahomed Saib and Co. The signatures were in Hindustani, a Language which it is not alleged the first accused was acquainted with The firm of Kizier. Mahomed consisted of three partners, and each of the partners was entitled to sign the name of the firm. I cannot assume in these circumstances that, because the first accused signed two letters in July and two letters in October 1911, enclosing pro-notes signed by a firm in a language with which he was unacquainted and having three partners, all entitled to put their signatures for the firm, he either was aware that the pro-notes were false or had reasonable ground to believe that they were false. It must be observed that the letters themselves were not written by the 1 accused but by the bills clerk, the prosecution witness No. 4. They related to pro-notes which, according to the evidence of the prosecution witnesses Nos. 4 and 8, were treated separately as notes in which the 1 accused had no concern. There is no evidence that the 1 accused had any reason to suspect Abdul Kareem who, for all that appears to the contrary, had a high position in she mercantile society of the city and, at any rate, was conducting business on a very large scale. I do not think that merely because in consequence of his conduct the first accused might have made himself civilly responsible for all the pro-notes signed by Abdul Kareem & Co., (a matter on which I express no opinion), any inference follows that he had reason to believe that the pro-notes relating to Noordeen's deliveries and treated in the books of Abdul Kareem & Co., as relating to them, were false. In my opinion, many a business man in the circumstances would not feel any necessity for making inquiries about their genuineness. Mr. Barton has argued that the 4 and 8 witnesses for the prosecution were trying to screen the 1 accused. I see nothing in the evidence to support his argument. Their evidence is prima facie supported by the books of Abdul Kareem & Co., and by the evidence of Mr. Munro himself, and it ia also supported by the evidence of the prosecution witness No. 11, the Dnbash of Abdul Kareem & Co., who says that, although all sales made by the firm were carried on through him, he had nothing to do with the sales of the goods to which the pro-notes in the second part of Exhibit CCC, the pro-note book, relates. Apart from this, it is difficult to see how the prosecution could make out its case in the face of the witnesses examined by itself and the books of Abdul Kareem & Co., put in as evidence. It is not easy to accept the argument that an inference of conspiracy should be drawn against the 1 accused from the mere fact that he was intimately connected with the business of Abdul Kareem & Co., in the face of the admitted facts and the evidence adduced. In a case of abetment by conspiracy, the prosecution has to prove an agreement between the alleged conspirators to do the criminal act. See Russel on Crime, VII Edition, Volume I, page 146. The agreement, no doubt, may be proved as a matter of inference, but, in my opinion, the facts in this case are not sufficient to support such an inference. The Presidency Magistrate was, therefore, justified, [think, in discharging the 1 accused on the ground that a prima facie case was not made out against him. There are, in my opinion, no sufficient grounds for setting aside his order, even if, as contended by the prosecution, it was open to him to make an order of committal.

20. Mr. Richmond pressed on us the view adopted in Weir's Law of Offences and Criminal Procedure, IV Edition, Volume II, page 255, that this Court should not interfere with such an order unless the Magistrate acted in breach of some specific provision of law. I am hardly prepared to accept this proposition. We have the power to revise an order of discharge whenever, in our opinion, the order is manifestly wrong. As a rule, the High Courts do not interfere with the orders of Criminal Courts in revision except on the ground of an error of law or a serious irregularity in procedure which is likely to have affected the c inclusion of the lower Court; but this is only a rule of practice based on the undesirability of interference by this Court merely on the ground of misappropriation of evidence; so far as the provisions of the statute are concerned, we have plenary powers of interference, and [do not think we would hesitate to exercise them, wherever the ends of justice require it, whether the error of the inferior Court be on a question of law or not. The present case is one of considerable importance, where fraud on a large scale has been perpetrated to the injury of the complainant Bank. I would consider it a proper case for interference, if I came to the conclusion that the Magistrate's finding on the facts was clearly erroneous, but I do not think that such is the case.

21. Mr. Barton has argued that the Magistrate did not consider the case from the proper point of view, that he ought to have confined himself to the question whether there was sufficient evidence to go to a Jury and that he ought not to have taken on himself the responsibility of deciding whether a Jury trying the accused would ultimately convict him or not. I cannot agree with this argument. Under section 210 of the Criminal Procedure Code, a Magistrate should commit an accused for trial when he is satisfied that there are sufficient grounds for committing the accused for trial.” In my opinion, this does not mean that he should do so, whenever there is evidence sufficient to put the case to a Jury. An accused person is entitled to adduce evidence before an order of committal is made, either in order to show that the evidence adduced for the prosecution is quite untrustworthy or to show that the facts proved by the prosecution are consistent with his innocence when taken in conjunction with other facts proved by him in his defence. A Magistrate, in my opinion, need not make an order of committal when, in his judgment, the evidence adduced for the prosecution is clearly insufficient to justify the conviction of the accused or the prosecution evidence is clearly untrustworthy. See Harbans Singh v. Fakir Das(18). Emperor v. Varjivandas does not, I think, lay down a different rule. He should, no doubt, realise that it is not his duty to form a final conclusion on the evidence for the prosecution whether the conviction of the accused if committed is reasonably certain; but it is his duty to be satisfied whether there are fair grounds for concluding that the accused is guilty, so far as appears from the evidence put before the Court. It is only then that sufficient grounds can be said to exist for committing the accused for trial. I see no reason to suppose that the Magistrate did not correctly understand his duty under the Code. He, no doubt, does not in his order state, with the emphasis employed by the Counsel for the complainant, the inference that may be drawn from the close association of the lst accused with Abdul Kareem and the important part he played in the business of the firm, but he does refer to this fact in paragraph 11 of his order; and he points out that the inference would not be justified in this case on account of the important facts appearing from the evidence of prosecution witnesses themselves and from the accounts of Abdul Kareem and Co. He was probably under the impression that after the 18 October 1911 the 1 accused signed no letters addressed to the National Bank covering the pro-notes sent to it for discounting; but, as I have already observed, such letters were very few, relating to the pro-notes of Kizier Mahomed and not of either of the firms whose pro-notes were made the direct subject matter of the inquiry, and the circumstances were not such as to justify an inference that the 1 accused must have known or was likely to have known that the pro-notes, to which the covering letters signed by him related, were false. There is nothing in the procedure of the Magistrate or the manner in which he dealt with the case to justify the cancellation of the order in revision, even if his view that there were no grounds for committing the accused for trial, might not altogether commend itself to the Court of Revision.

22. As regards the 2 accused also, I think that the prosecution has not succeeded in showing that the Magistrate's order is open to exception. The prosecution has, in my opinion, not succeeded in adducing evidence to show that the 2 accused with held from the firms in question the notices of the Bank intimating the dates when the notes would fall due. Mr. M.O Par-thasarathi Aiyangar is right in his contention that there is really no evidence that the notices were sent out of the Bank at all. Mr. Bumpus, the prosecution witness No. 15, is not able to say that the notices to the four firms which are alleged to have been suppressed from their knowledge were in fact sent out; he merely speaks to the ordinary procedure of the Bank of sending out such notices to persons who owed money on pro-notes. In cross-examination, he says that the discount clerk used to give out the notices to the Head Bill Collector, but he does not say that he was supervising the duties of the discount clerk or that he is aware that the notices to the firms in question were as a fact given by the discount clerk to the 2 accused for delivery to the firms. There are no records in the Bank which would make it proper to draw the inference that the notices must have been sent out. There is no book showing that particular notices were delivered to Bill Collectors. The practice was to hand them over to Bill Collectors in loose sheets, and they were not required to bring back any acknowledgments from the persons to whom they delivered them. Abdul Kareem, if he wished to utilise the services of the Bank's servants in order to defraud it, might have chosen the discount clerk as easily as the head Bill Collector or any other Bill Collector for the purpose. In the circumstances, there is no substantial basis for the inference that any notices were sent out of the Bank's premises at all. I further think that there is really no evidence of value to prove that the notices addressed to the four firms, if they were sent out, were handed to the Head Bill Collector. The evidence of Mr. Bumpus, in my opinion, does not go bo establish this fact at all. In this view, it is unnecessary to consider whether the evidence that the 2 accused intercepted the letters addressed to the four firms on the 10 February 1912 is sufficiently good to justify a committal; for assuming that he did, that fact by itself would not justify the inference that he was a party to any conspiracy of forged documents or to use forged documents as genuine. It would only show that he was probably corruptly induced to lend his services for the interception of the letters. Even if there were evidence that he had previously been systematically suppressing from the knowledge of the four firms the notices addressed to them regarding the due dates of promissory-notes, I would not consider my self justified in saying that the Magistrate is wrong in not drawing the inference that he must have known that the pro-notes to which the notices related were not genuine. It might equally be the case that he merely lent himself to the suppression of the pro-notes corruptly, but without any knowledge that the notes were false. In my opinion, neither inference can be said to have a higher degree of probability than the other, and, where the Magistrate draws one of them rather than the other, I do not think that there would be any ground for setting aside his order.

23. Much was made, at the hearing of the petition, of the fact that the 2 accused received large presents from Abdul Kareem and Co. At first I was inclined to think that a present of Rs. 75 on the occasion of the Upanayanam of the 2 accused's son, if true, was unduly large; but it appears that the prosecution witness No. 17, a dealer on a comparatively smaller scale, gave the 2 accused a present of Rs. 15 on that occasion and the Dubash, the prosecution witness No. 11, says that he paid Rs. 5 or 10. I cannot say that the payment of Rs. 75 by a firm having dealings for lakhs of rupees with the Bank is so large as to justify any inference against the 2 accused Reference was also made to another present of Rs. 50 to the 2 accused, but according to the entry in the account, Exhibit NN, that sum was paid for all the Bill Collectors together, I agree with the Magistrate that it is prima facie unlikely that a person ia the position of a Bill Collector would have been taken into confidence for the perpetration of a large and continuous fraud on the Bank, and I do not think that the evidence is by any means sufficient to justify a prima facie inference of the 2 accused's complicity in the fraud. There are no grounds for interfering with the Magistrate's order in his case also. I would, therefore, dismiss the revision petition.

24. W. Barton and E.B Osborne, instructed by King and Partridge, for the Petitioner.

25. The Hon'ble Mr. T. Richmond, and Mr. V.B Ponnusawmi Aiyangar, for 1 Respondent.

26. M.O parthasarathi Aiyangir and S. Gurusami Chetti, for 2 Respondent.

27. This is an application by the complainant, the National Bank of India, in a case before the Second Presidency Magistrate for the revision of his order discharging two persons who were accused of abetment of forgery, using forged documents and cheating. The application was heard by Benson, J., and Sundara Aiyar, J., who differed in opinion, and the case has been laid before me for my opinion under section 429 of the Criminal Procedure Code. The facts adduced before the Magistrate have been fully stated by the learned Judges, and 1 do not propose to state them in detail. The principal offences which the two accused are alleged to have abetted are said to have been committed by one Abdul Kareem. This man was the principal partner in two firms, Abdul Kareem Sahib and Co. and T. Noordeen Sahib and Co, dealers in piece-goods, who had business transactions with the Bank. There is evidence that the 1 accused took a considerable part in the management of the business of Abdul Kareem & Go., and there is also, I think, sufficient evidence to place before a Jury that he was a partner in that firm.

28. There is also the evidence of many credible witnesses that for a period of nine months, commencing in July 1911, 200 or more forged promissory-notes were sent by that firm to the Bank to be discounted and that the proceeds were placed to the credit of the firm and were drawn upon by them for the purposes of their business; that some of these notes were sent to the Bank under covering letters signed by the 1 accused and that he was acquainted with these transactions. The three notes which form the subject-matter of the complaint against the accused were endorsed, and the letters forwarding them to the Bank were signed, by Abdul Kareem, but it is argued that the facts disclose a scheme by the firm to defraud the Bank, of which the 1 accused was cognizant that he took an active part in carrying out this scheme, of which the three notes in question formed only a small part, and that he was, therefore, engaged in a conspiracy to foist these three forged notes upon the Bank, intentionally aided Abdul Kareem to use them, and is thus guilty of abetment.

29. It is quite possible that the 1 accused was a mere tool in the hands of Abdul Kareem, and took the forged notes from him and dealt with them in pure innocence, and his Counsel has argued very strongly that his actual dealings with the forged notes were comparatively slight and that his knowledge of the signatures of the maker was not sufficient to raise any doubt in his mind of their genuineness, and that it does not appear that he had anything to do with the three notes mentioned in the complaint.

30. It appears to me, however, that this argument invites the Court to weigh the evidence in the case, and to decide whether the 1 accused had or had not a guilty knowledge and that this is eminently the province of a Jury. If the Jury finds that the 1 accused took part in the alleged conspiracy, it will be for them to find whether the three promotes of the complaint formed part of that conspiracy. It has also been very strongly argued that the whole of the forged notes relate to the business of Noordeen & Co, that is, Abdul Kareem's own business, in which the firm of Abdul Kareem & Co., had no interest, and were produced by Abdul Kareem, and that these facts conclusively negative any guilty knowledge on the part of the 1 accused. This argument depends upon statements made in cross-examination by two employees of the firm of Abdul Kareem & Go., who were called by the prosecution, and these witnesses would naturally be anxious to clear themselves and others connected with the firm by throwing all the blame upon Abdul Kareem, who has absconded. I think that the credibility of these witnesses and the weight to be attached to the documents to which they speak are also matters to go to a Jury, but apart from this, the facts alleged by them do not appear to me to compel the inference drawn by the learned Counsel for the 1 accused.

31. The transaction in effect consisted in the financing of Noordeen & Go. by Abdul Kareem & Co., because the latter had greater facilities with the Bank, and was to outward appearance as follows:— Abdul Kareem & Co., took in their own name from constituents of Noordeen & Co. promissory-notes for goods sold by the latter firm, endorsed them and discounted them with the Bank, received credit for and drew upon the proceeds, and retired the notes as they fell due. Noordeen & Co., were debited with the value of goods delivered to them by the Bank upon Abdul Kareem & Co.'s order, and at the date of the insolvency of both firms, Noordeen & Co., were largely indebted to Abdul Kareem & Co.

32. The principal difference between this transaction and the ordinary business of Abdul Kareem & Co., was that in the former case, Abdul Kareem produced and may perhaps be taken to have guaranteed the promissory-notes of the actual purchasers of goods, and in the latter case this was done by the Dubash of the firm; but in both cases, the firm had notes of the actual purchasers as security for payment. If Noordeen & Co. did not pay for goods so secured, Abdul Kareem & Co., might have recourse to the notes held by them, and the genuineness of the notes and the solvency of the makers were accordingly matters to be considered before delivery of goods to Noordeen & Co. The transaction thus formed part of the business of the firm of which the 1 accused was partner or manager, and I think that it is for a Jury to weigh the evidence as to the connection of the 1 accused with the transaction, and to draw any inference as to his knowledge of the alleged fraud.

33. There is evidence that it was the usual course of business in the Bank to give notice that notes were falling due to both the makers and the indorsers, and it follows that, if the alleged conspiracy existed, it was. imperative to employ some person in the Bank to intercept the notices to the makers of the notes; for, if but a single notice had been delivered, the whole fraud would have been immediately disclosed. The 2 accused is the person alleged to have been so employed. He was the Head Bill Collector of the Bank, and there is evidence that he would ordinarily serve notices on the four dealers whose names appear on the forged notes, and that none was served; that the 2 accused admitted that the notices were in fact delivered by him to Abdul Kareem & Co., instead of the dealers, and that he took part in intercepting some special letters to the dealers, which it was not his duty to deliver, at the office of Abdul Kareem & Co., and that he received some presents from the firm. These acts and omissions on the part of the 2 accused would certainly assist the alleged conspiracy, and I think that it is for a Jury to weigh the evidence, and to find whether the alleged course of business of delivering notices existed, whether it was followed ia this particular case, whether notices were in fact delivered to the 2 accused, and intercepted by him, and if so with what intention or knowledge he committed these acts.

34. The learned Judges who heard the application differed in opinion as to the functions of the Magistrate in a case triable exclusively by the High Court, and since the matter has been fully argued before me, I think that I should express my own opinion.

35. Under section 208 of the Code of Criminal Procedure, 1898, the Magistrate has to take the evidence produced by the prosecution and the accused or called for by himself, and the witnesses may be cross-examined and re-examined. Under section 209, he may call upon the accused for an explanation of the evidence. Upon the facts so adduced before him, the Magistrate has to satisfy himself whether there are or are not sufficient grounds for committing the accused for trial (sections 209 and 210). If a charge be framed against the accused, the Magistrate may examine any of the witnesses whom he wishes to be sum moned at the trial, and if the Magistrate is then satisfied that there are not sufficient grounds for committing the accused, he may cancel the charge and discharge him [section 213(2)]. It has been argued that the last provision has largely extended the powers possessed by the Magistrate before 1893, but I am of opinion that this sub-section and the provision for the examination of the accused have merely extended the scope of the inquiry, and have in no way altered the functions of the Magistrate in dealing with the evidences before him. His duty is to determine whether the accused should be put upon his trial, and to commit if he is satisfied that there are credible witnesses to facts which, if believed by a Jury, would justify the conviction of the accused of the offence complained of. If he proceeds to weigh the evidence, to accept some statements and reject others, to deal with probabilities or to draw inferences as to knowledge or intention, he is in reality dealing with the question of the guilt or innocence of the accused and is usurping the functions of the trial Court. [See Queen-Empress v. Namdev Satvaji(19) followed in Emperor v. Varjivandas]. The Magistrate ??? has, undoubtedly, to exercise his discretion in the matter; for instance, he may examine the varying statements of the witnesses for the prosecution and come to the conclusion that they are not credible witnesses or he may find that there is incontestable evidence that conditions which are shown to have existed at one time had passed away prior to the date of the alleged offence. [See Emperor v. Rawji Hart(20)]. Possibly he may say that the facts alleged are not sufficient to warrant any inference as to the knowledge or intention of the accused [see Sheobux Ram… v. Emperor…Opposite Party.(21)]; this, however, is to go very near the line and I am inclined to agree with the observations of Geidt J., at pages 838 and 839 of the report. I do not think that it is possible to fix positively the limits within which the Magistrate should exercise his discretion and prefer to express the rule negatively, by saying that he must not in any way encroach upon the functions of a Jury. In the present case, I think that the Magistrate did exceed his functions with regard to both the accused, in several respects and particularly in drawing inferences from the facts adduced before him as to their knowledge of the alleged fraud. I most respectfully dissent from the view apparently held by Sundara Aiyar, J., that, where there are facts from which several inferences as to knowledge or intention may reasonably be drawn, the Magistrate is entitled to weigh the evidence and draw such inference as he thinks just. With regard to the decision reported in 2 Weir's Criminal Rulings, 4 Edition page 255, I agree with Benson, J., that it must be taken as applicable only to the particular case; and I may also point out that an application of this kind differs from other applications for revision, in that there are, strictly speaking, no findings of fact, because it is not the duty of the Magistrate to find any facts. There are merely statements by certain witnesses which the Magistrate has to consider with reference to the effect which they might have upon the minds of a Jury.

36. For these reasons, I agree with the opinion of Benson, J., that the order of discharge should be set aside and that the Magistrate should be ordered to commit both the accused (G.V Kothandarama Cheityand A. Srinivasa Charri) for trial upon charges framed under sections 471, 420 and 109 of the Indian Penal Code.

37. Order set aside.