1. The petitioners, who are father and son, have been convicted by the Joint Magistrate of Sivakasi for the dishonest misappropriation of five bandy loads of cotton, the property of P.W. 1, on 19th June 1934 and sentenced to pay a fine of Rs. 1,000 each. The conviction and sentences have been confirmed on appeal by the learned Sessions Judge of Ramnad. The undisputed facts of the case are that P.W. 1 sent the cotton from a ginning factory at Erichanatham to Virudhunagar on 19th June; that accused 1 was a creditor of P.W. 1 who came to Erichanatham on that day to demand payment of his debt, which according to himself amounted to Rs. 360, that petitioner 1 accompanied the bandies to Virudhunagar, that at Virudhunagar petitioner 1 sold the cotton to an agent of Volkart Bros.; and that on 21st June petitioner 2 was paid Rs.1,200 for the cotton.
2. The points of difference between prosecution and defence are the following: P.W. 1 says he bought the cotton from P. Ws. 13 and 16 and other sellers; petitioner 1 says it was he who sold the cotton to P.W. 1 and that P.W. 1 was unable to pay him for it. P.W. 1 says that when petitioner 1 demanded payment of the debt he (P.W. 1) authorized petitioner 1 to obtain payment of Rs. 150--which alone P.W. 1 admitted--from one Palani Nadar in Virudhanagar. It was to Palani Nadar that the cotton was being despatched. Petitioner 1's case is that P.W. 1 authorized him to sell the cotton and pay his debt from the sale proceeds, less the charges due to P.W. 1 for ginning. The petitioners were first prosecuted on a charge of cheating. They were discharged by Mr. Wood, the then Joint Magistrate of Sivakasi. Further enquiry was ordered by the Sessions Judge. The judgment of Mr. Corleston, who convicted the petitioners Under Section 403 being possibly influenced by the Sessions Judge's order, seems to assume that a case has been made out against the petitioners which necessitates their conviction, if they cannot rebut it. In paras. 1.3 he states the facts and mentions that he has framed a charge. Almost the whole of the rest of the judgment is taken up with the criticism and rejection of the case for the defence. In appeal, the learned Sessions Judge states the issues briefly in para, 5 as follows:
To succeed, the prosecution must establish that the cotton belonged to P.W. 1, and that the appellants had no right to take the sale proceeds.
3. In para. 6 he holds that the cotton undoubtedly belonged to the complainant. In para. 7 he holds that as it is admitted that petitioner 2 received the money for selling the cotton, there is a presumption against the appellants which they must rebut. In para. 8 he refuses to attach any importance to discrepancies on the question whether the petitioners were ' put in charge of' the cotton or not, because of the existence of this presumption; finds that the petitioners were not authorized to sell; and finally holds that even if they were so authorized they had no instructions or right to 'keep the whole of the proceeds'.
4. Now of course the essential issues in this case are issues of fact, and normally a Court of revision will not interfere with concurrent findings of fact, but enough has been said already to make it evident that the Courts below have not really approached this case with either a clear appreciation of the issues involved, or a clear understanding of the principles of criminal law. A conviction should not be based upon the failure of the appellants to make good their defence. Even if a defence is palpably false, the burden still rests upon the prosecution, which must establish beyond reasonable doubt that no other alternative than the truth of the prosecution ease will explain the facts. Then, to come to the judgment of the learned Sessions Judge, para. 5 is clearly an inaccurate statement of what is required to be proved, The learned Sessions Judge seems to have for-gotten that the petitioners were charged, not with misappropriating Rs. 1,200 or any speocfic sum of money, but with misappropriating the cotton itself. The prosecution must therefore prove that the petitioners did misappropriate the cotton and did so dishonestly. The hypothesis referred to in para. 8 that even if the creditor did authorize the petitioners to sell the cotton, they cannot have authorized them to keep the whole of the proceeds, cuts at the very root of the prosecution case, based upon this specific charge, for if the creditor authorized the petitioners to take charge of and to sell the cotton, the act of selling it cannot amount to misappropriation. If after selling the cotton the petitioners then refused to pay money due to the creditor, the creditor's remedy lies in the Civil Courts.
5. In para. 6 the learned Sessions Judge finds that the cotton belonged to the complainant. That is not disputed. Petitioners' case is that they sold the cotton to P.W. 1 who however had not yet paid them for it. The real issue is whether this cotton originally came from the petitioners or from other sellers. On this point neither Ex. D nor the evidence of P. Ws. 13 and 16 is in any way conclusive. Nor has there been any clear direction of the learned Judge's mind to a decision on this point. He assumes (see the end of para. 6 and the beginning of para. 7) that because the cotton belonged to the creditor the story that the creditor had bought it from the petitioners and could not pay for it must be false--a conclusion which by no means follows.
6. Even, however, if it were established beyond reasonable doubt that this cotton never belonged to the petitioners, the prose-nation must still show that their plea that the creditor authorized them to sell it on his behalf is not only not proved but not true. To establish this there is only the evidence of P.W. 1 himself. The evidence of P.W. 1 is lengthy. Neither of the Courts subjects it to any kind of detailed scrutiny. Neither Court refers to his demeanour or says explicitly that it believes him. He has stated in the sworn statement itself that he 'entrusted' the cotton to petitioner 1; he had admitted that he gave no definite instructions to the bandy men as to where they should take it; he raised no protest whatever when he saw his own cotton in Volkart's yard on the 20th with petitioner 1's initials on the bales; and he explains this by saying that he thought petitioner 1 was a trustworthy man and that ho could somehow recover the money even though he had been cheated. It is impossible, I think, to hold on these admissions, that there is not a reasonable doubt as to the authorization to sell, or that one must believe P.W. 1 when he says that all petitioner 1 was authorized to do was to ask Palani Nadar for Rs. 150. I am therefore of opinion that this Court is entitled to interfere in revision and that the petitioners should be acquitted and the fine, if paid, refunded.