John Beaumont, C.J.
1. This matter comes before the Court on a certificate given by the Advocate General under Clause 26 of the Letters Patent. Under Clause 25 there is no appeal from a decision in the Sessions Court, but under clause 26, the Advocate General may certify the matter to the Court if he thinks that there has been some error in law on a matter which requires further consideration. Many people, including myself, think that it is very wrong that, there should be no appeal, at any rate on points of law, from a trial in Sessions in this Court. But, however that may be, in law there is no appeal.
2. The learned Advocate General in deciding whether to give a certificate, and this Court in dealing with any matter which he has certified, is in a difficulty where the case is not one of murder, because owing to the insufficient number of shorthand writers supplied to the Court no shorthand note is taken of the learned Judge's charge to the jury. It is only in murder cases that a note is taken.
3. The ground on which the learned Advocate General has certified that the case should be reconsidered is that he thinks that a question arises whether the learned Judge should not have withdrawn the case from the jury on the ground that there was no evidence to go before them. In determining that question it would assist us to know from the charge to the jury what view the learned Judge took of the evidence. However, fortunately the learned Judge made a full note of the evidence and we can ascertain from that what the real case was.
4. There were three accused, and the general nature of the case was this. The present appellant, if I may so call him, accused No. 1, was one of the two cashiers with Messrs. Sulleman Mitha & Co., Ltd., Bombay. In the month of March 1939 Sulleman Mitha & Co. sent an agent named Ratansi into the Broach District to buy cotton. He bought certain cotton and drew a hundi on the firm by way of payment, cashed that hundi with one Achratlal or Amratlal Hiralal of Broach, and notified his firm of Sulleman Mitha & Co. on the same day by exhibit B that he had drawn such a hundi. The number of the hundi was 1604, and the evidence is that Ratansi took with him a book of forms of hundies, and it was from this book that he withdrew the form 1604 and filled it up in favour of the payee for Rs. 5,000. The evidence of the two directors of Sulleman Mitha & Co., who were called, is that in the normal course a hundi is presented for payment within a day or two after they have been notified that it has been drawn, and, having been presented, it would be the duty of one of the cashiers to check the particulars of the hundi, and if there was nothing suspicious about it, he would pay it, as he would have seen in the ordinary course the notification that the hundi had been drawn, and would probably have no difficulty in deciding whether it was a hundi which should be honoured. But in the case of this hundi, No. 1604, it was not presented for payment within the normal time,; and accordingly the directors instructed accused No. 1 as cashier not to pay it when it was presented without reference to them. The hundi was dated March 8, and these instructions were given, I suppose, about the 10th or 11th. On May 5, hundi No. 1604 was presented for payment to Sulleman Mitha & Co. It was apparently received by some other clerk. Accused No. 1 says he was not in the office, and the particulars were entered in a book by that other clerk. But then accused No. 1 as cashier was informed about the presentation of this hundi, and he at once informed the two directors of the firm who told him not to honour it without further instructions. They then enquired into the matter. The hundi had been presented through a bank, called the New Citizen Bank, and they found that it had been paid into an account with that Bank in the name of Shamji Damji, and it was not found possible to trace Shamji Damji, The directors also thought that the signature on the hundi was not that of Ratansi, their agent. Therefore they placed the matter in the hands of the Police, and I think we must take it for the purposes of this reference that it was definitely proved that accused No. 2 was the man into whose account this hundi had been paid, that Shamji Damji was a fictitious name taken by accused No. 2, and that accused No. 2 had forged the body of the hundi. The endorsements on the hundi, according to the evidence, had been forged by accused No. 3. But there is no suggestion that accused No. 1 had forged any part of the hundi. The actual charges against accused No. 1 were two.
First:-That you, accused No. 1, Thokarsi Narsi between the 8th day of March 1939 and the 5th day of May 1939, at Bombay, being employed as a Mehta and cashier of Sulleman Mitha & Co., Ltd., Bombay, committed theft by stealing page No. 1904 from an hundi Book (Ex. D) in the possession of the said Sulleman Mitha & Co., Ltd., Bombay, and thereby committed, an offence punishable under Section 381 of the Indian Penal Code_______
Secondly: That you, accused No. 1, Thokarsi Narsi, at the time and place aforesaid, abetted the commission by accused No. 2, Khiasi Asaria, of the offence of forging a valuable security, which offence was committed in consequence of your abetment and that you have thereby committed an offence punishable under Sections 109 and 467 of the Indian Penal Code___
5. The suggestion is that the forged hundi, which purports to bear the number 1604, had in fact been written on a blank form, and the number had been altered. It looks as if both numbers '6' and '0' had been altered, but the suggestion is that the original number of the form used was 1904, and the reason for that suggestion is that in the hundi book kept by the firm form No. 1904 is missing. So that the; prosecution case seems to be this, that the hundi No. 1604, which was a genuine hundi, was stolen. The evidence is that it was sent by post from Broach to the payee's agent in Bombay in order to be cashed, and that in fact it never arrived. So, probably it was stolen, and it may be that originally it was intended to present that hundi, perhaps with a forged endorsement, for payment, but that was not done. Whether the hundi met with some accident or not, I do not know. But the suggestion is that, not being able to present the original hundi, the conspirators got another form with a number which could be easily altered to 1604, and they then altered the number and forged the contents of the hundi; so that the charge against accused No. 1 is that he stole the form No. 1904 and thereby enabled the forgery to be committed; and the question is whether there was. any evidence to go to the jury on that charge.
6. Now, the book of forms, from which form No. 1904 was missing, was kept in a cupboard in a part of the office of Sulleman Mitha & Co., which was only occupied by a typist, and the typist was not there all day. It would, I think, have been easy for anybody to come up by the lift and enter this room, and if the typist was out, there would be no difficulty in getting to the cupboard. The door is just next to where the lift comes up. This cupboard was kept locked at night, and each of the two cashiers, including accused No. 1, had a key. The other cashier was away when the forged hundi was presented, though he had only gone away early in May, and his key was kept by the directors in his absence. So that, no doubt, accused No. 1 had access to this cupboard in which the forms were kept. But then the evidence of both the directors is that many other people had access to it as well, because stationery and other things were kept in the cupboard, and the cupboard was kept open during, the day. It was unlocked by one of the cashiers in the morning, and left open during the day, and ate there was only the typist in the room at certain periods, there would be no difficulty in many persons entering this room and taking away forms from the hundi book in the cupboard.
7. However, the first piece of evidence against accused No. 1 is that he had access to the cupboard from which it is suggested that the form was taken. I may say that there is no conclusive evidence to my mind that the forged hundi is on a form which was originally numbered 1904. It looks as if the '6' and the '0' have been altered, but I am quite unable to say from the hundi itself that the original number was 1904. The second figure has been obliterated, and it is no more than a guess that it may have been 9.
8. Then the next piece of evidence against accused No. 1 is that accused No. 2,. who did the major part of the forgery, is his cousin, and they lived in the same building, though not on the same floor. The third piece of evidence is that it is proved that on the first of May, that is seven days before the forged hundi was presented, accused No. 1 drew a cheque on his bank account to self or bearer, and gave that cheque to accused No. 2, who cashed it, endorsing his name on the back of the cheque, because, although it was a bearer cheque, the Bank apparently required anybody cashing it to endorse his name on the back. It is then shown that accused No. 2, very shortly after receiving this money from accused No. 1, opened an account in the name of Shamji Damji at the New Citizen Bank, and for that purpose he had to deposit at least Rs. 100 to open the account, and he did in fact deposit Rs. 150, and it is a justifiable inference that he obtained a part of that Rs. 150 by means of this advance from accused No. 1. But it is not shown that accused No. 1 knew the purposes for which the sum of Rs. 85 was required, or the manner in which it was in fact used. He says that accused No. 2, being his cousin, borrowed the money from him to go upcountry to his native place, and he says, though there is no independent evidence of the fact, that he had advanced him moneys before. That, at any rate, is not improbable, seeing that accused No. 2 was his cousin and had apparently no work. That is the whole of the evidence against accused No. 1.
9. Mr. Beynon, counsel for the prosecution, in addressing the trial Court, said that he did not stress the charge of theft against accused No. 1, but relied on the abetment of forgery. It is, I think, difficult to see what abetment of forgery there was apart from the alleged theft of the form No. 1904, But the jury brought in a verdict of guilty against accused No. 1, on both charges, by a majority of 8 to 1, and the learned Judge accepted that verdict and sentenced accused No. 1 to five years' rigorous imprisonment.
10. The question which we have to determine is whether there was any evidence to go to the jury that accused No. 1 was guilty. Under Section 289 of the Criminal Procedure Code, if the Court considers that there is no evidence that the accused committed the offence, it may, in a case tried by a jury, direct the jury to return a verdict of not guilty. No doubt, the word used is 'may' and not 'must', but it is well settled that if the Judge comes to the conclusion that there is no evidence to go to the jury, it is the duty of the Judge to direct the jury that in law they must acquit. In applying any rule, there; are always cases on the border line, and it may be difficult some times to say on which side the particular case falls. But the general principle which governs the present matter is to my mind perfectly clear. It is the function of the jury, in a trial by jury, to determine whether the evidence is true, and if the Judge thinks that the prosecution evidence, if true, will lead to a conviction, then he is bound to leave the case to the jury. He may think that the prosecution story is inherently improbable, that the evidence is discrepant, and that it is of a class which is generally unreliable, for example, the evidence of discharged servants; but if he thinks that though weak the evidence if true will justify a conviction, he must leave the case to the jury, cautioning them, of course, about the weak points in the evidence. But if the Judge, after the prosecution case is closed, comes to the conclusion that, assuming that the jury believe every word of the prosecution evidence, nevertheless they will not be justified in convicting, then he is bound in law to say so and to direct the jury that in law they must bring in a verdict of not guilty, and he ought not in such a case to leave the matter to the jury.
11. Now, the question here is whether there was any evidence on which the jury could convict, assuming they believed the whole story against accused No. 1 to be true. To my mind there was not. It is perfectly clear that the particular items of evidence against accused No. 1 come to nothing. Any one may have a dishonest cousin, any one may lend money to that cousin, and it is shown that many people besides accused No, 1 had access to the cupboard in which the document alleged to have been stolen was kept. Therefore none of those particular items of evidence can lead to a conviction. But, no doubt, one has to consider their cumulative effect, and it seems to me that the cumulative effect comes at the very most to a case of suspicion. The learned Judge seems to have been most impressed, judging from the memorandum which he has been good enough to supply to the Court, with the fact that very shortly before the forged hundi was presented, accused No. 1 had lent money, or given money, to accused No. 2, without which it might have been difficult or impossible for accused No. 2 to open the account through which the forged hundi, was to be presented. But that, at the most, raises mere suspicion. If it had been shown that accused No. 1 knew the purpose for which the money was to be used, that would have been a different matter. But there is no evidence whatever that he knew the purpose for which it was intended, or the manner in which in fact it was used, and it is not by any means unlikely that he lent the money to his cousin because the cousin was in financial difficulties and wanted to go upcountry to his native place. But, at most, the evidence raises a case of suspicion, and I must confess that to my mind, when one looks at the whole of the prosecution evidence, the suspicion is extremely faint. It is proved that accused No. 1 as cashier knew that this hundi No. 1604 was suspect. He had been warned by the directors that if it was presented for payment, he was not to pay it without reference to them; he was to take instructions; and in fact he reported to them the presentation of the hundi. Surely, therefore, if he was in a conspiracy to try and cash a forged hundi on form No. 1604, he would have told his fellow conspirators that it was perfectly useless to go on with the matter, He knew for a fact that the presentation of hundi No. 1604 was not going to lead to payment of Rs. 5,000, but was likely; to lead to an enquiry by the Police, and he would halve warned his fellow conspirators that they had better take no further steps in the matter. That would have been the course he would probably have adopted, if he had really been in the conspiracy. These observations relating, as they do, rather to the weight of the evidence go beyond the reference, but I have made them because it is only fair to the accused, who will have to take up again the threads of his life, to say that in my view on the materials before the Court there is no case against him even of serious suspicion.
12. So far as the question of law is concerned, I am clearly of opinion that the learned Judge erred in not ruling that there was no case to go to the jury, and that he ought to have directed the jury that in law they must bring in a verdict of not guilty. That being so, we must set aside the conviction, acquit the accused, and direct that he be released..
13. I agree and have nothing to add.
14. I agree.