Musammat Nanhi Bahu v. Dhunde

Alston, J.:— This case was referred by the learned Sessions Judge of Jhansi with a view to having the acquittal of one Dhunde set aside. The learned Judge of this Court before whom the reference came, considered that on the face of the referring order a good case for interference was shown. He accordingly issued notice to Dhunde to show cause why his acquittal should not be set aside. Dhunde has been represented to-day by Mr. Girdhari Lal Agarwala who has shown cause. Dhunde was tried by a Deputy Magistrate on a charge under section 406, Indian Penal Code, and was acquitted, not because the Magistrate believed that there had been no misappropriation but because he considered that the evidence showed that the complainant had agreed to give the accused time to repay the money. The Magistrate held, upon the authority of a ruling of the Nizamat Adalat, that “it is an accepted principle of law that a person cannot in a case such as this agree to accept the money, and at the same time reserve the right to prosecute if the money was not paid.” In my opinion there is no such principle of law. Moreover, in the present case all that the Deputy Magistrate found was that the accused “stated before the punchayat that he would pay the money, such as he had, in three days.” If the law were as stated by the Deputy Magistrate, I see no reason why any one should be convicted of criminal breach of trust, for in probably every such case an attempt is made to recover the money before criminal proceedings are taken in court. Where the trust is denied, proof that an agreement was entered into for the repayment of the money alleged to have been misappropriated, might under certain circumstances be accepted as evidence that the original transaction was a loan and not a trust. No such question however arises in the present case. It has been contended that as the Local Government has not appealed from the acquittal, this Court ought not to interfere in revision. I can not agree with this view. It is quite true that ordinarily, and particularly when the acquittal has gone on a question of fact, this Court does not interefere in revision with acquittals. In the case however the acquittal proceeded solely on a mistaken view of the law. In such a case interference in revision in order to prevent a miscarriage of justice is not only justified but demanded. I accordingly set aside the acquittal of Dhunde and direct his retrial.

2. Acquittal set aside.

3. Retrial ordered.