V.D. Bhargava, J.
1. This is an application by one Goswami Ladli Kishore who has been ordered to be retried. He, along with one Matre Lal. was tried under Sections 467, 468, 471 and 120A, I.P.C. Goswami Ladli Kishore had further been tried for an offence under Section 420. I.P.C.
2. At first the case had started on the complaint of one Kalka Prasad (P.W. 4), on the 25th July, 1949. But that complaint was dismissed in default on the 17th September, 1950. Thereafter a second complaint was filed on the 12th September 1950. This complaint was filed against the aforesaid two accused along with two others, Ram Bharosey and Bhajan Lal. The story of the prosecution, in brief, was that there was a temple of Thakur Khillao Behari at Brindabaii and Diwan Saheb Kharag Singh of Manpura was the owner of the said temple.
Goswami Ladli Kishore, accused No. 1, used to manage this temple on behalf of the aforesaid Diwan Saheb. Matre Lal, accused No. 2 was the pujari of the temple. There was a kunj belonging to the Maharaja of Orcha and that kunj was gifted to the Diwan Saheb by the Maharaja in the year 1945. The Maharaja had certain other properties at Vrindaban and he wanted to dispose of his properties at Vrindaban. He, therefore, executed a power of attorney on 2-2-47 in favour of one Sri T. K. Pande and he authorised Sri T. K. Pande to sell off six properties under that power of attorney. The six properties mentioned therein also consisted the kunj aforesaid which had already been gilted to Diwan Saheb. Mr. Pande put up an advertisement for sale of four properties out of these six properties and the kunj, was not put in that advertisement as a property which was to be sold. On the 19th May, 1947, Goswnmi Ladli Kishore purchased four properties from Mr. Pande.
A supplementary sale-deed purporting to transfer the kunj and purporting to have been signed by Mr. Pande was executed on the 14th June, 1948. There-alter Goswami executed a mortgage of the kunj in favour of one Surajbnan Bhatiiagar on the 29th September, 1948, and subsequently a sale-deed was executed of this very kunj on the 15th October, 1948, for a sum of Rs. 19,000 in favour of Smt. Goji Bibi. Later on when the Diwan Saheb came to know about these transfers, an enquiry was made and it was found that this supplementary sale-deed had been executed. The enquiry further revealed that Mr. Pande had never executed the sale-deed and that this sale-deed was a forgery. Thereupon this complaint was filed. It appears that the sale-deed contained identical signatures on several pages and both the Courts below have found that that was a forgery.
The Assistant Sessions Judge who tried the case acquitted the applicant Goswami Ladli Kishore of other charges including the offence of Section 420, I.P.C. He convicted him under Section 471 read with Section 467, I.P.C., and sentenced him to undergo four years' rigorous imprisonment. Matrc who is not before me was convicted under Section 467, I.P.C., and sentenced to one and a half year's rigorous imprisonment. One of the accused had absconded. The Sessions Judge, who was then appellate Court had sent this case back for retrial. Aggrieved with this order, the applicant has filed this application in revision.
3. It has been contended on behalf of the applicant that since the applicant was acquitted of the charge of Section 420, and since he had already been tried in the Court below for having used this document in order to induce Smt. Gopi Bibi and that charge having failed it was not open to the Sessions Judge to order a retrial. In any event, it was argued that if the Court wanted a retrial it should not have expressed its opinion on the merits of the case, as the trial in that event would simply be a farce.
4. It was argued on behalf of the applicant in the appellate Court that Ladli Kishore was never charged for having used the supplementary sale-deed in connection with effecting a mortgage or sale, on which count alone the trial Court had based the conviction, and therefore, the conviction could not stand and the accused was prejudiced. The Sessions Judge seems to have been impressed by that argument and, therefore, he amended the charge and ordered a retrial. From his judgment it further appears that the learned Sessions Judge was of opinion that the only user for which the accused was made to stand his trial was the user in presenting the deed in the registration office on the 14th June, 1948. It appears that there was a further charge which is on a separate sheet of paper to the following effect:
That you on or about 15th October, 1948, cheated Gopi Bibi of Rs, 19,000 by dishonestly transferring Maharaja Saheb's kunj in consideration for Rs. 19,000 on the representation that you had a valid sale-deed executed on behalf of the Maharaja of Orcha in your favour' which fact you knew to be false.
This charge was under Section 420, I.P.C. The trial Court on this charge has come to a finding of fact that tile applicant was not guilty and acquitted him. The trial Court observed:
In the case before me the only evidence led by the prosecution on this point is that the accused executed a sale-deed in favour of Smt. Gopi Bibi for Rs. 19,000 on the basis of the alleged supplementary sale-deed. The prosecution has not examined Smt. Gopi Bibi or his agent Ballomal who got the sale-deed executed.
The prosecution has examined Govind Prasad who is also an agent of Smt. Gopi Bibi. But Govind Prasad does not state that the accused deceived Gopi Bibi or fraudulently or dishonestly induced Smt. Gopi Bibi. It is very well possible that Smt. Gopi Bibi may be knowing the correct position and may be in league with the accused and with a view to strengthen the transfer in favour of the accused, she may have got this sale-deed executed in her favour. It is possible that this sale-deed in favour of Smt. Gopi Bibi may be a fake transaction as between her and the accused. Hence the accused Ladli Kishore cannot be convicted under Section 420, I.P.C., for having cheated Smt. Gopi Bibi of Rs. 19,000.
5. Thus it is clear that the use of this document for the purpose of inducing Smt. Gopi Bibi was before the Court and there was a charge framed -by the Court.
6. Coming to the second transaction about the mortgage died in favour of Surajbhan Bhatnagar. He was produced on behalf of the prosecution, but he has stated nothing about having been duped in his evidence. It may also be noted that in the complaint no grievance was made about using this supplementary sale-deed for the purpose of the mortgage deed.
From this it appears that the learned Sessions Judge was not correct when he said that the only user for which the accused was made to stand his trial was the user in presenting the deed in the registration office on the 14th June, 1948. He was charged for having used that sale-deed for the purpose of cheating Smt. Gopi Bibi and was acquitted of that charge. Under the circumstances, on the same set of facts on which the accused has been acquitted he has been ordered to be retried again. The trial started on a complaint of the year 1950. Six years have already passed and when neither Gopi Bibi nor Surajbhan Bhatnagar seems to have been cheated, in my opinion this was not a fit case for ordering a retrial.
7. I, therefore, allow the revision and set aside the order of the learned Sessions Judge ordering a retrial. In other respects his order shall stand.