Patna High Court
P.K. Sen vs Emperor on 25 November, 1927
Equivalent citations: 107IND. CAS.529, AIR 1928 PATNA 293
JUDGMENT Ross, J.
1. The petitioner was convicted by the Magistrate of Patna City on a charge under Section 406 of the Indian Penal Code. He appealed to the learned Sessions Judge who set aside the conviction, but ordered a re-trial, and the present application is directed against that order of retrial.
2. The charge was in respect of a cheque for Rs. 200 issued by one Masud Ahmad in favour of a firm Bhanamal-Gulzarimal in January, 1927. It appears that the petitioner had entered into a contract with Masud Ahmad to build an overbridge for a consideration of Rs. 600, and in connection with that contract this cheque was issued to him. The case for the prosecution is that he was to supply iron girders for the overbridge from Bhanamal-Gulzarimal and did not supply them.
3. According to the evidence of the Munshi of Masud Ahmad the amount of the cheque given to the accused was part of the sum of Rs. 600. That was the sum for which he entered into the contract. If that is so, then the money was at the disposal of the petitioner to be used by him, at his discretion, in the work that he had to do, within a reasonable time. The other view is that as the cheque, although it was a bearer cheque, was drawn in favour of Bhanamal-Gulzarimal, Masud Ahmad had to look to that firm for the supply of his materials. He says in his evidence that it was agreed between the accused and himself that he should pay the price of the iron girders and the tee irons to Bhanamal-Gulzarimal who would supply the materials. The supply of the materials, therefore, lay with Bhanamal-Gulzarimal as soon as they were paid the money. Now, it was admitted by their manager in his examination that the accused paid Rs. 200 to them. It appears that they would not take the cheque itself, because there had been difficulty over an earlier cheque and consequently the petitioner had to cash the cheque and then pay them the money. The same witness says that the petitioner took delivery of certain goods from the firm either iron or cement. He could not say positively which without referring to his books.
4. Masud Ahmad in his evidence admitted that in January some sheet iron was delivered at his Kadam Kuan house but he did not know where the Munshi purchased it from.
5. These two points of uncertainty are the ground of the order of re-trial. The prosecution had. notice from the fact that the cheque had been issued in favour of this firm, that the firm's manager would be an important witness and they ought to have made a thorough investigation of the firm's books before the trial began and Masud Ahmad's books ought also to have been investigated. If they came into Court with an incomplete case which, so far as it went, confirmed the defence of the petitioner, then it can hardly be said that they are entitled to a re-trial.
6. In the evidence as it stood there were good grounds for an acquittal, and this does not seem to me a proper case in which an opportunity should be given to the prosecution to fill up gaps in the evidence by a re-trial.
7. I would, therefore, allow this application, set aside the order of re-trial and direct that the petitioner be released from bail.
Jwala Prasad, J.
8. I agree.