J.N. Datta, J.C.
1. The petitioner Abdul Ali Mia, aged about 85, of village Lilong Khunou, who was convicted under Section 420 of the I. P. C. and sentenced to undergo R. I. for a period Order 11/2 months,, has filed this revision petition against his conviction and sentence, his appeal to the court of Sessions having failed.
2. The facts necessary for the appreciation of the point involved briefly stated are, that in 1951, the complainant Abdulla alias Tomba Mia, brought a suit against the petitioner, in which his son Abdul Hakim Mia was also later joined as a defendant, for possession of some land on the ground that the petitioner had sold it to him by a registered sale deed D/-30-5-50 (Ext. P-1) for a consideration of Rs. 700/-.
The defence was that the petitioner had already made a valid gift of the land to his son (the other defendant) in 1944 sometime before he left for Macca, and the son was since then in possession, that is, on the date of the alleged sale to the plaintiff, the petitioner had no right in or title to the land. The sale was further denied, and it was asserted, that the plaintiff had by deceit obtained the thumb mark of the petitioner on a blank paper, and later forged a sale deed on it that is in any case the plaintiff had no title to the land.
3. It appears that the trial court held both the gift and the sale in . favour of the plaintiff proved and dismissed the suit on the date of sale, the petitioner had no title in the land. On appeal my learned predecessor upheld the finding as regards the gift in support of which there was not only oral and documentary evidence on an unregistered deed but also the important fact, that mutation had also been effected in the name of the son, in respect of this land, Order 20-4-50.
It is obvious that the petitioner did not disclose these facts to the complainant and if it is proved that he transferred the land to the complainant for consideration then he would be guilty of the offence of cheating. But here as already stated, the transaction was not admitted by the petitioner in the civil suit. On appeal my learned predecessor observed, and I am in respectful agreement with it that the main question for determination was whether there was a valid gift in favour of the son and in reaching the finding that there was such a gift my learned predecessor observed at one place thus:
It thus becomes clear that- the sale deed Ext. P-A has not been proved by disinterested witnesses and as Abdul Jalil Mia appears to be an ex-convict the evidence of these witnesses does not show that the deed Ex, P-A was really executed by the respondent No. 1 as a sale deed.' and again as follows:
After taking into consideration the entire evidence on this record, I am definitely of opinion that the respondent No.1 actually gifted away the property in question to the respondent No. 2 be fore proceeding to Macca in 1944 A. D. and he had no title left in the year 1950 when the sale deed Ex. P-A was obtained from him by the plaintiff.' and with every respect, I must say that I am unable to interpret these observations or even conclusions as meaning or implying, as was urged on behalf of the petitioner, that there was a clear finding that the deed was brought into existence as alleged by the defendants, and no consideration passed between the parties. Since these questions were not finally settled, I am of the opinion that it was open to the Magistrate before whom this petitioner was prosecuted under Section 420 I. P. C, after the decision of the civil appeal mentioned above, to go into these questions for finding out, whether the alleged offence of cheating was proved or not, and fee ruling reported in Emperor v. Bishen Das, 12 Cr. LJ 50 (Lah) cannot be attracted because the facts in that case were different.
4. But the matter does not end here, as the learned Counsel for the petitioner urged some other points also, and the main contention was that the examination of the petitioner by the learned Magistrate was not proper and the petitioner was prejudiced in his defence.
5. In this connection it has to be noted, that the examination of the petitioner was not very satisfactory. The question of consideration was not pointedly brought to the notice of the petitioner, and it was obviously wrong to have put the question 'after how many days or years of your putting your thumb impression you had given away the field as a gift to the respondent No. 2 of the civil suit concerned' as it was nobody's case.
6. Obviously the learned Magistrate relied on and took into consideration against the petitioner his statement recorded in the appellate court, as regards the sale deed, in the proceedings started when registration was refused, and also his statement in the civil suit, but the attention of the petitioner was not drawn to these statements, and he was given no opportunity to offer an explanation if any, as regards those statements.
He was also not asked if he had anything to say about the gift, or why the witnesses were deposing against him. An accused person must be asked, why the witnesses are deposing against him, and further if he has anything else to offer by way of explanation. Taking everything into consideration, I am of the view that this omission to examine the petitioner properly resulted in prejudice to the defence, and the interests of justice require that the conviction and sentence should not be maintained.
7. I, therefore, set aside the conviction and sentence of the petitioner and remand the case to the trial court, The case shall now go to the same Magistrate or some other Magistrate to be selected by the D. M., Manipur and that Magistrate shall properly examine the petitioner and try and dispose of the case in advertence to the above remarks.