1. Pandit Narbada Prasad and Jagannath Prasad alias Kunnoo were charged before Mr. S.W. Bobb, First Class Magistrate of Allahabad, under Section 168, I.P.C., and Sections 168, I.P. C, and 168/109,. I.P. C, for contravention of Section 34, District Boards Act of 1922. The Magistrate acquitted both the accused.
2. Section 34, District Boards Act reads as follows:
(1) A member of the Board who otherwise than with the permission in writing of the Commissioner, knowingly acquires or continues to have directly, or indirectly by himself or his partner, any share or interest in any contract or employment with, by or on behalf of the Board, shall be deemed to have committed an offence under Section 168, I.P.C.
3. An 'interest in a contract' we hold to mean a financial interest with profit or hope of profit from the contract as the object of the person interested. This must be inferred from the facts in evidence in each case.
4. In the month of January 1928, the District Board of Banda was suspended by order of the Government. It appears to us, after reading of the activities of this Board in this case, that the Banda District Board might have been suspended earlier with great advantage to the citizens of Banda. The administration of the District Board was placed in the hands of the District Magistrate, who appointed Mr. Chakarvarti as Official Chairman of the Board. Mr. Chakarvarti, on investigation into the affairs of the District Board thought it proper to request Rai Bahadur Thakur Jaswant Singh, a Special Magistrate of Banda, to investigate the connexion of Narbada Prasad, who had been Chairman of the Mau Sub-Committee of the District Board, with a contract for metalling one mile of a road in the Mau Sub-Division which had been given to the second accused, Jagannath Prasad. It is to be noted that the investigation was started officially and not at the instigation of Thakur Jaswant Singh. On 24th March 1928, Thakur Jaswant Singh had finished his investigation and made his report in this matter to Mr. Chakarvarti. The police then took the matter in hand and as a result the Government sanctioned the prosecution of Narbada Prasad on 7th July 1928. In view of the nature of the defence in this case to which we will allude hereafter these dates are important. Mr. Vishnu Sahai, a First Class Magistrate of Allahabad, originally commenced the hearing, but, on an application for transfer being made to the High Court, the case was ordered to be transferred to Mr. S.W. Bobb.
5. The evidence produced by the prosecution consisted of:
(a) The circumstances surrounding the grant of the contract to Jagannath and the treatment accorded to Messrs. Mohammad Sharif and Gulab Chand, who had in January 1927 originally tendered for the contract and had their tender accepted by the Engineer, subject to the sanction of the Board which was never granted.
(b) The evidence of 13 labourers, who were engaged in the construction of the road or in collecting kankar who gave evidence to the effect that they had been engaged by Narbada Prasad and paid by him either on the road or at his house.
(c) The evidence of 5 cart-men, who said that Narbada Prasad had hired their carts and paid them the agreed sums.
(d) The evidence of 3 boatmen, who carried the kankar used on the road, that their boats were engaged by Narbada Prasad aud that they were paid by Narbada Prasad at his house.
(e) The evidence of Ram Kumar, the ferry contractor of Rajpur Ghat, who said that Narbada Prasad's kankar was conveyed by the boatmen, and who gave evidence that Narbada Prasad's servant used to look after the work, and that Narbada Prasad himself used to come as well, and that he used to see the workmen at the house of Narbada Prasad. He also said that Narbada Prasad himself had told him that he had taken the contract.
(f) The evidence of Munni Lal, whose house was on the actual portion of road being remetalled, who said that Narbada had told him that he was going to take the contract for the road, and that Jagannath had told him he had been been given a four anna share in it. He also saw the labourers at Narbada Prasad's house. He deposed that Jagannath was a man who could not possibly undertake the contract, as his financial means were very limited, and that previously to this contract Jagannath had been engaged by his brother-in-law at. Rs. 15 a month.
(g) The evidence of the karpardaz of Mohammad Sharif and Gulab Chand, who had originally tendered for the said contract. He says that, after the obstacles which had been put in the way of Mohammad Sharif and Gulab Chand, and at the time when it appeared fairly obvious that the delay which they were subjected to was deliberate, Narbada Prasad one day told him on the road that:
he wanted to take this theka in the name of Jagannath. How have you butted in? You give up this or I will cause trouble and you will lose.(h) The formal evidence as to the proof of the documents of the District. Board.
(i) Police and search witnesses.
(j) And, lastly, the very important documentary evidence which was discovered in the search of the houses of Narbada Prasad and Jagannath. These documents consisted of muster rolls, in which names of the labourers on the contract appear with the amounts which were paid to them, a cash book consisting of entries from 18th February 1927 clown to 17th July 1927, setting out the payments made by Narbada Prasad for the purposes of the contract, and also debiting to the account in favour of Narbada Prasad a sum of Rs. 1,800, to which we will allude later. This cash book is of most vital importance and, in our view, it is impossible for any one having this evidence before him to come to any other conclusion but that Narbada Prasad was interested in the contract with in the meaning of Section 34, District Boards Act. There was also a ledger account, which extracted from the cash book all the payments made by Narbada Prasad from February to July, amounting in all to Rs. 2,960-12-6, on account of this contract. (The contract price to be paid to Jagannath was Rs. 4,995). The cash book, ledger and muster roll were discovered at Jagannath's house. Jagannath admits that the writings in Muris and the cash book and ledger are his. At the house of Narbada Prasad was discovered a diary in the handwriting of Narbada Prasad himself, in which there were entries which showed conclusively that Mahadeo Pandit and Sain who were employed on the contract, were his servants and that he was in the habit of paying small amounts to Jagannath himself. It was admitted that Mahadeo and Sain were the servants of Narbada Prasad, and It was proved that Mahadeo wrote a large part of the accounts. A receipt for the sum of Rs. 100, which was the deposit made on Jagannath Prasad's tender for this contract, was discovered in the pocket of Narbada Prasad.
6. With regard to the proceedings of the District Board previous to the giving of the contract in question to Jagannath in May 1928, it is unnecessary for us to set the evidence out in detail, as this is all given in the record; but there can be no doubt that every difficulty was put in the way of Mohammad Sharif and Gulab Chand, whose tender in January was lower than that of Jagannath. Orders were given to them by the Engineer to start work in expectation of the sanction of the Board in that month. An agreement for the contract was executed by these contractors in which they agreed to finish the road by the end of March 1927. They could not, however, get definite orders from the Board sanctioning the contract. Application after application was made by them to the Board for clear orders: see letter from Wazir Beg, dated 14th April 1927; but no definite reply could be obtained by them. Eventually, through disgust, and because the date by which they had agreed to finish the road had long since expired, these contractors wrote to the Board giving up the contract. With regard to this, an important letter was written by their agent Shahid Husain on 27th June 1927, one year before this prosecution was commenced to the Engineer of the District Board, in which he sets out their complaint and made the definite allegation that:
Pandit Narbada Prasad, Chairman, Sub' Committee, Mau having taken the contract in the name of his man, took possession of the entire material belonging to us.
7. The Engineer sent on this letter to the Chairman of the District Board with a note which dealt only with the amount of kankar in Mohammad Sharif's and Gulab Chand's bill and made no observation upon the very important allegation against Narbada Prasad and Jagannath. It is further to be noted that, although this letter was placed before the Chairman of the Board, no reply was received by these contractors, and no denial was made of the serious allegations contained in the letter. It appears to us that the only explanation of this can be that both the District Engineer and the Chairman knew the position very well and did not trouble to make a reply. On 10th May, Mohammad Sharif retired from the contract, and it is not unimportant to note that, although from January to May the sanction of the Board could not be obtained for Mohammad Sharif and Gulab Chand, in 24 hours the contract for Jagannath was sanctioned. It is also to be noted that, although security for completion of the contract had been taken from Mohammad Sharif, none was taken from Jagannath. We are satisfied that influences behind the scene were being used to prevent Mohammad Sharif and Gulab Chand doing the work, and to obtain the contrast for Jagannath.
8. As to the evidence of the labourers on the road, their evidence was clear and was not shaken in cross-examination. It is to be noted that in one of two cases, where these witnesses gave particularly strong evidence the Magistrate put a note at the bottom of the evidence of 'unsatisfactory demeanour.' The only suggestion in cross-examination against these witnesses was that they were either the tenants of Thakur Jaswant Singh or of Sheo Kunwar, against whom it was alleged by the defence that the prosecution was entirely due to their enmity. It is important to note as regards this allegation that Thakur Jaswant Singh and Sheo Kunwar are the big zamindars in the neighbourhood and it would be only natural that the majority of the labourers employed should be their tenants. The Magistrate dismisses this class of evidence on the ground that they are men of absolutely no status,' a wholly unsatisfactory and unjudicial reason.
9. As regards the cartmen, their evidence too was unshaken. The learned Magistrate dismisses this evidence on the ground that on the muster roll found in the house of Jagannath their names do not appear, and that they were 'evidently tutored witnesses.' As the muster roll apparently deals solely with the labourers engaged in the contract, one would hardly expect that independent carters would appear on this roll.
10. There is no reason to disbelieve the evidence of the boatmen.
11. As regards the evidence of Ram Kumar, the learned Magistrate rejects it on the ground that in some case, in which this man had given evidence, the Magistrate who heard the case, and whose judgment is exhibited in the record, commented adversely upon him as a man:
who haunts the Court of the Special Magistrate (Thakur Jaswant Singh) and lives by either standing security to or by giving evidence for the parties in that Court.
12. It is to be noted that the Magistrate who made this comment does not give any clue in his judgment to the evidence on which he so found. Mr. Bobb dismissed this witness with the remark:
He is evidently another hanger on in the Court of the Special Magistrate (Thakur Jaswant Singh).
13. We will deal with the allegations against Thakur Jaswant Singh hereafter.
14. The evidence of Munni Lal appears to us to be important and reliable, and yet his evidence is discarded on the ground that 'he is Thakur Jaswant Singh's man.'
15. We are satisfied that the oral evidence alone is sufficient to bring home the charge to the accused.
16. With regard to the documentary evidence a preliminary objection has been taken by Dr. Katju that the account books Exs. G-18 and G-20 are not admissible in evidence for want of formal proof. It cannot be questioned that the Crown is entitled to rely upon any material evidence of an incriminatory character found in the house of an accused person as the result of house search. If Exs. G-18 and G-20 directly or indirectly connect Jagannath Prasad with the offence charged, the fact that those documents were found in the house of Jagannath is itself a circumstance which, if unexplained, may seriously tell against Jagannath Prasad. It has not been suggested in the case that any entries in these documents have been interpolated or fabricated.
17. Section 43, Act 2 of 1855, provided that:
Books proved to have been regularly kept in the course of business shall be admissible as corroborative but not as independent proof of the facts stated therein.
18. Act. 2 of 1855 was repealed and was replaced by the Evidence Act (Act. 1 of 1872). Section 34 of this Act runs as follows:
Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to enquire, but such statements shall not alone be sufficient to charge any person with liability.
19. From a comparison of the two sections referred to above, it is manifest that there is a material difference between the two and the change of expression in the later Act, is not a mere variant but amounts to a substantial alteration in the law. Under the former Act, books to be admissible had to be 'proved to have been regularly kept in the course of business.' In the later Act, the words 'proved to have been' have dropped out. The legislature dispensed with the necessity of any formal proof that the books were kept up in the regular course of business. It was a matter of intrinsic evidence as to whether the books in question were books of account and regularly kept in the course of business. It was held by West, J., In re, Munchershe Bezonji v. New Dhurmsey Spinning & Weaving Co.  4 Bom. 576, that only such books as are entered up as transactions take place that can be considered as books regularly kept in the course of business within the meaning of Section 34, Evidence Act. Their Lordships, of the Privy Council did not approve of this ruling and held that it gave a much too limited meaning to the section: Deputy Commissioner of Bara Banki v. Ram Prasad  27 Cal. 118.
20. The only limitation imposed by the statute is that the statement contained in the account books 'shall not alone be sufficient to charge any one with liability.' If the entries stood by alone, without any independent evidence such as has been produced in this case, the entries could not be treated as sufficient evidence to convict either Jagannath Prasad or Narbada Prasad.
21. Whether or not the books have been regularly kept in the course of business is a question of fact and this question may be solved by a reference to the entries in the books. We have examined these books of accounts. There are two columns on each page relating to the debits and credits. The entries are duly dated. The cash book begins on each date with the closing balance of the previous date. The entries on each side are totalled at the close of the day and the debits and the credits tally. There is a reference in the cash book to the corresponding entry in the ledger. The entries in the ledger on the debit and credit side agree with the entries in the cash book.
22. It is clear therefore that these documents are account books regularly kept in the course of business.
23. The value of the entries is corroborative and cannot be used as independent evidence to charge any person with liability. It was so held in Dwarka Das v. Sant Bakhsh  18 All. 92.
24. An account book is not a document which is required by law to be attested and Section 68, Evidence Act, has no application. The prosecution do not allege that the documents have been wholly written or have been written in part by any particular person except as to the entry which has been marked as Ex. G. The prosecution have established that the said entry is in the handwriting of Narbada Prasad. As to the rest of the entries in the account books, Section 67, Evidence Act, does not apply.
25. We hold that the documents in question are admissible in evidence against Jagannath Prasad and Narbada Prasad without any formal proof.
26. It is to be noted that the documentary evidence completely upsets the evidence that the interest of Narbada Prasad in the contract was merely that of a financier in that he had merely lent money to Jagannath and had no interest in the contract itself. Mr. Bobb says that in this matter Narbada Prasad acted as a banker. No one looking at these accounts could honestly come to this conclusion. The cash book shows that not only did Narbada Prasad pay substantial amounts to Jagannath himself for payment of bills, but that he paid small amounts from one rupee upwards to various individuals on account, of this contract, and, when he made these small payments they were credited to him in the cash book. This cannot possibly be taken to be the action of a man who is simply lending money to the real contractor. It is important to note that Narbada Prasad does not produce any promissory note or other document which he would in all probability have if the transaction was one of an ordinary loan. It is alleged that the loans were merely oral, and that no document was required. This might be so if the sums advanced were one or two sums of, say, Rs. 1,000 or Rs. 2,000. It is an impossible suggestion where money was advanced daily in sums of one rupee upwards. Narbada Prasad must at least have kept some account himself to record the amount if he was only lending the money, and the account found was; Jagannath's only. Narbada produces no such record. These accounts corroborate the statement of the workers that they were paid by Narbada Prasad. There is one other curious item in the cash book. On 30th July 1927, the District Council passed a resolution agreeing to pay Rs. 1,800 to Jagannath on account of the contract. This appears, according to the record, to have been paid by cheque on 1st August. There is an exact similarity between the amount paid by the District Board and the amount appearing in the cash book on 17th July. It has been contended by the prosecution, and denied by the defence, that this sum of Rs. 1,800 is the amount which was paid by the Board. It certainly was brought into the contract account, and although the dates, as we have set out above, do not coincide, it is probable, in view of the way in which the District Board carried on business, that this amount was indeed the sum received from the District Board. It may be that this amount was paid earlier than the documents show, and that subsequently the matter was put right. It is curious, as regards this sum, that it appears in two amounts Rs. 1,788 debited to Narbada Prasad as against the amounts that he had paid, and Rs. 12, which appears under the heading Jagannath went to Banda for bringing money.' If this really was merely a repayment to Narbada Prasad of a sum lent by him (he having no other connexion with the contract), it is a peculiar thing that a sum of Rs. 12 should be deducted by Jagannath for his expenses in getting the money.
27. As regards the ledger account, it was contended by Dr. Katju on behalf of Narbada Prasad that as a large proportion of the amount was paid or expended by Narbada Prasad from February to May, and that Jagannath did not obtain the contract until 13th May, therefore, the payments previous to May could not possibly have been on account of Jagannath's contract. It is to be noted that Jagannath had previously held one or two contracts from the Board. There are two observations which we have to make upon this contention of Dr. Katju. Firstly, that if, as we think, appears to be clear from the account, the payments from February to May were made on behalf of this contract, it conclusively proves that Narbada Prasad knew months before Jagannath obtained the contract that he was going to get it. Alternatively, if the earlier payments were not made on behalf of this contract, they were made on behalf of other contracts which Jagannath had from the Board, and therefore would show that Jagannath's previous contracts were also really the contracts of Narbada Prasad. There must have been later accounts kept by Jagannath relating to this contract showing how the final payments by the Board were dealt with. Such accounts would have been of great assistance to the defence if there was only a loan by Narbada. No later accounts were produced. The inference is obvious.
28. The receipt for the deposit on the tender of Jagannath was, as already stated, found upon Narbada Prasad, and it is important to note that when Jagannath made his statement before the Magistrate on 15th September 1928, he was asked this question:
Had you deposited Rs. 100, the earnest money, along with tender, Ex. A-5?
29. The reply was:
As regards this, at this time I do not want to say anything.
30. Narbada Prasad admitted, in answer to a question before the Magistrate, that this receipt was found on his person; and, when asked if he wanted to state anything more, said, 'No. I shall file a, written statement.' The answer of Jagannath to this question makes us; think that he did not, in fact, pay the money and that it was paid by Narbada Prasad and that, therefore, he kept the receipt himself. We have no confidence in the defence evidence as regards this receipt. As regards the financial position of Jagannath, we are satisfied that he was not a man who could undertake a contract of this character. He himself, in a letter to the District Board, calls himself a poor man. There is the evidence of Muni Lal which describes his financial position and to which there was no cross-examination. Neither was Jagannath's brother-in-law called by the defence to deny Muni Lal's statement as to the pay given by him to Jagannath. There is not only the evidence of Narbada's diary of very small payments of one rupee and two rupees being made to Jagannath, but also that of a defence, witness who says that he lent Jagannath money in small amounts.
31. The defence in this case consisted of the evidence of several servants of the District Board and one or two others, the gist of which was that, as far as they knew, there was no connexion between Narbada Prasad and Jagannath in the matter of this contract. It is clear that negative evidence of this sort cannot displace the positive evidence of the mass of witnesses who gave affirmative evidence conclusively proving the connexion between the two accused with regard to this contract.
32. The main defence was an allegation of enmity against R.B. Thakur Jaswant Singh, a Special and Honorary Magistrate in Banda and a large zamindar, the ground of enmity being that some 13 years ago Narbada Prasad joined in a memorial to the Local Government praying that Thakur Jaswant Singh should not be appointed an Honorary Magistrate. As to this, we have the evidence of a defence witness, Mr. Pearey Lal, in which he says that shortly before the contract in this case Thakur Jaswant Singh told him that Narbada Prasad was a 'good man.' There is no evidence that Thakur Jaswant Singh took the slightest notice of this memorial, so long ago, to the Local Government, or had the slightest enmity against Narbada. The reason of the memorial is clear from the evidence of another defence witness, who says that Thakur Jaswant Singh was a strict Magistrate. In a district like Banda, which produced such a District Board, it is not to be wondered that a Magistrate who did his duty would be unpopular with certain persons. It is admitted by Dr. Katju on behalf of Narbada Prasad that there is no evidence on the record of enmity or conspiracy on the part of Thakur Jaswant Singh on which he can rely. We agree entirely with Dr. Katju.
33. The other branch of the defence was that Thakur Jaswant Singh, together with one Sheo Kunwar, conspired to bring the charge in this case out of enmity. The reason of the enmity as regards Sheo Kunwar was alleged to be that Narbada Prasad was the reversioner of Sheo Kunwar, that Sheo Kunwar adopted the son of one Sheo Balak in order to defeat the claim of Narbada Prasad, and that from that date these conspirators were determined to do something to put Narbada Prasad out of the way. That this is an unfounded accusation is clear from the record itself. The defence evidence shows clearly that the adoption took place in June or July 1928, and that the investigation by 'Thakur Jaswant Singh ended in March 1928, and the Government sanctioned the prosecution of Narbada Prasad in July 1928. It is clear that the prosecution of Narbada Prasad was well on the way before the alleged cause of enmity ever arose. Further the reason of enmity alleged might cause Narbada to dislike Sheo Kunwar, but could hardly cause Shoo Kunwar to have enmity against Narbada.
34. It is clear from the above that the evidence for the prosecution in this case was overwhelming and that there was really no defence to the charge.
35. We have already made some comments upon the judgment of the learned Magistrate, but in addition he accepted as proved the enmity of Thakur Jaswant Singh and the conspiracy of Thakur Jaswant Singh with Sheo Kunwar on no real evidence. He, therefore, held that no evidence by any tenant of these two persons could be taken into consideration, although he omits to note that at least five of the prosecution witnesses were not tenants of either of them. He says that Munni Lal and Ram Kumar, ferry contractor, were hangers on in the Court of Thakur Jaswant Singh and therefore, could not be believed, and further that the evidence of the mass of the prosecution witnesses was that of men of 'absolutely no status'. He mentions the evidence of Shahid Husain who gave evidence that Narbada told him that he wanted to take the theka in the name of Jagannath etc. This important evidence (which is not alleged to be tainted with enmity) is dismissed with the observation that Shahid did not mention this to any one. The Magistrate omits to mention the important letter of 27th June 1927, when the allegation that Narbada Prasad was the real contractor was made by this witness to the Engineer and forwarded by him to the Chairman himself long before this case was even contemplated.
36. On the other hand, the defence evidence, negative as it is, he takes to prove absolutely that there was no connexion between Narbada Prasad and Jagannath in respect of this contract. He hardly mentions the very important accounts exhibited in this case. He certainly never deals with the obvious inference to be drawn from them. He comes to the conclusion that the account found in Jagannath's house show:
that Jagannath was really the thekadar and Narbada Prasad was only helping him with money.
37. A perverse finding. He further says:
This fact (that Narbada Prasad was lending money) evidently gave rise to the rumours that he was the thekadar and gave a chance to his enemies to trump up a case against him.
38. From what we have said, and from the record, it is obvious that there was no evidence to establish the defence of enmity or conspiracy, and therefore the whole basis of the Magistrate's judgment is swept away. The Magistrate says that there was no reason why the sanction of the Commissioner could not have been obtained if Narbada wanted the contract. We feel sure the Board knew well there was no likelihood that the Commissioner at that time would sanction the grant of a contract to a member of this Board. The Magistrate further says that Narbada knowing the law would never tell any one he was interested in the contract. He certainly did so, however, and the reason may well be that both he and others in Banda did not consider the breaking of this law as a serious matter. In some circles a man in the position of Narbada is considered foolish if he does not take advantage of his opportunities. We hope the result of this case will show that such conduct involves serious risk.
39. We find it impossible to believe that any Judge dealing honestly with the evidence before him, and being uninfluenced by considerations other than the evidence, could have come to the conclusion at which Mr. Bobb arrived. We consider that this aspect of the case is extremely serious, and we consider it to be our duty in the interest of the purity of the judicial service to direct that a copy of this judgment be sent to the District Magistrate of Allahabad for enquiry into the conduct of the Magistrate.
40. We allow the appeal of the Local Government, set aside the order of acquittal of the learned Magistrate, direct that Narbada Prasad and Jagannath Prasad be arrested and that, as regards Narbada Prasad, he serve three months' simple imprisonment and further pay a fine of Rs. 1,000. As regards Jagannath, we consider that he was merely a servant of Narbada Prasad in this matter and under his influence. We, therefore, sentence him to one month's simple imprisonment. With regard to the sentence on Narbada Prasad, we have given him a longer sentence and a larger fine than otherwise we would have done, had it not been for the nature of the defence. False allegations against innocent and respectable persons of criminal conspiracy to bring false charges, when used as a defence, aggravate greatly the original offence. This type of defence is much too common in India and it ought to be recognized that where a defence of this character is obviously false, that fact ought to be taken into consideration in awarding punishment.