1. This is a revision filed at the instance of the complainant asking this Court to set aside an order of acquittal passed by the learned Additional Sessions Judge of Cawnpore and to restore the order of the learned Magistrate convicting the opposite parties.
2. It appears that the complainant's masters were wholesale merchants of cloth and the opposite parties were retail traders. The opposite parties owed money to the complainant's firm. The complainant's masters gave the opposite parties 24 hours' time to pay up. This time was grantee by means of a telegram, although the parties were residing at the same place, viz., Cawnpore. The object of sending a telegram was evidently to show the urgency of the matter. The prosecution case is that the opposite parties approached the creditor firm and induced thorn to grant 15 days' time to pay up. It is further said that the object was that within the time granted, the opposite parties would remove their goods from their shop and would thereby escape the payment of just dues of the creditors. This object was carried out. The telegram was sent on the 19th of May, 1924, and the Civil Courts closed for the usual vacation on the 1st of June, 1924. It is clear that on the closing of the Civil Courts it was not open to the creditors to seek any remedy in the Civil Court. The creditors went to the Criminal Court and brought a charge of cheating against the opposite parties. The learned Magistrate who heard the ease, was of opinion that cheating had been committed and he, convicting the opposite parties, sentenced them. An appeal was taken to the learned Additional Sessions Judge. He found that, to quote his own words.
All that the prosecution evidence shows is that the appellants fraudulently induced the complainants to give them some time, but the fraud, it seems, was inchoate and inconsequential.
3. The learned Sessions Judge remarks that there was no guarantee that the Civil Court, at the instance of the creditors, would have granted an order for attachment before judgment. But the question is not what the Civil Court would have granted or not granted. The main question is whether the creditors could have moved the Court to grant their prayer or not, if the time of 15 days had not been obtained. On the finding of the learned Sessions Judge that the time was obtained fraudulently, a conviction ought to have followed.
4. Mr. Dillon, who has appeared for the opposite parties, has argued that the learned Sessions Judge did not really mean to hold that there was any fraudulent intention when 15 days time was asked for. He argued that it was not expected that a Sessions Judge of Mr. Banerji's standing would make a mistake like that.
5. I do not think I should express any opinion of my own on the facts. It would be the duty of the learned Sessions Judge to find on the facts and to apply the law. On the judgment, as expressed by the learned Additional Sessions Judge, there would be a clear case of cheating. In my opinion the appeal has not been adequately dealt with and it should be reheard.
6. I may point out that this Court was really asked to do what it was not authorised to do, viz, to convert a finding of acquittal into a finding of conviction. In the view which I take of the matter and in the course which I propose to take, the law would be respected.
7. I accept the petition in revision, set aside the judgment of the learned Additional Sessions Judge and remand the appeal to him with the direction that it will be re-heard with proper notice to the opposite parties and disposed of according to law. If there be no Additional Sessions Judge exercising jurisdiction at Cawnpore, the appeal will be heard by the learned Sessions Judge himself.