Amaresh Roy, J.
1. This Rule was issued by my learned brother K. C. Sen J. upon an application for revision of an order of a learned Presidency Magistrate by which that learned Magistrate has committed the present petitioner Rameswar Daga along with another person named Haridas Mundra for trial in the City Sessions Court on charges framed against them for offences of cheating under Section 120B/420 I. P. C. and also for substantive offences under Sections 467 and 420 I, P. C. It may be mentioned that there were three accused persons named in the chargesheet submitted by the police, but one of them G. M. Robins has remained absconding and during the proceedings before the learned Magistrate under Section 2O7A Cr. P. C. only the present petitioner Rameswar Daga and the other accused Haridas Mundra were being proceeded against. Haridas Mundra was a Director of Jessop and Company. Limited. The absconding accused G. M. Robins was formerly the Secretary of Jessop and Company, Limited. Present petitioner Rameswar paga is a brother-in-law of Haridas Mundra and carries on business in the firm named of Rameswar Daga and Company.
2. Prosecution case is that in November 1955 Jessop and Company Limited purchased 3,00,000 ordinary shares of British India Corporation Limited from Rameswar Daga, Jessop and Company also purchased on 9th October, 1956, 25,000 shares of British India Corporation Limited through a firm named Ramanarayan Kayan and Brothers. These purchases were made at a total cost of Rs. 38,82,250/-. Subsequently, on 30th of October, 1956 and 31st October, 1956, there was a proposed sale of those 3,25,000 shares to Messrs. Sohanlal and Company who are a firm of share brokers. Towards the price of that sale Jessop and Company received a cheque for Rs. 96,153.75 nP. drawn by the said Messrs. Sohanlal and Company and again another cheque by the same firm for RS. 7,6.0,750/- on 8th November, 1956, on 9th November, 1956 a cheque for Rs. 8,95,000/-drawn by Haridas. Mundra himself, on 16th of November, 1956 a cheque for Rs. 8,90,600/- drawn by Tulsidas Mundra who is a brother of Haridas Mundra; on 21st November, 1956 a cheque for Rs. 2,23,750/- drawn by Rameswar Daga was given to Jessop and Company towards the money due as price for the sale of shares above mentioned, Then on 26th November, 1956 a cheque for Rs. 11 lakhs and odd drawn by Haridas Mundra was given to Jessop and Company towards that price. This last cheque drawn by Haridas Mundra was dishonoured, while all the other five cheques, mentioned above, including the cheque drawn by Rameswar Daga on 21st November, 1956, had been duly honoured. By the payments of money by cheques which were honoured Jessop and Company received Rs. 31 lakhs and odd and a sum of Rs. 7,80,817.94 nP. (erroneously stated in the order of the Magistrate as Rs. 7,70,817-15 as. o pies) remained due to Jessop and Company and by a letter dated 27th May, 1957 Sohan-lal and Company had confirmed that balance to be due; that letter; however, has been repudiated by Sohanlal as having been forged. It is the prosecution case that it was the scheme of Haridas Mundrai to acquire those shares of British India Corporation Limited of which he was a Director also and for working out that scheme he had entered into a conspiracy with the present petitioner Rameswar Daga and G. M. Robins and also other person or persons unknown in pursuance of which conspiracy he induced Jessop and Company Limited to purchase those shares of British India Corporation Limited and had those shares sold by Jessop and Company Limited to Messrs. Sohanlal and Company which firm was acting in the matter as 'Benamdar' only of Haridas Mundra without any knowledge of the scheme of conspiracy to cheat by acts of forgery and cheating committed against Jessop and Company Limited.
3. In the proceeding before the learned 'Magistrate under Section 2O7A Cr. P. C. Sohanlal was a prosecution witness. In his deposition before the learned Magistrate it has transpired that Haridas had paid to Sohanlal and Company large sums of money, Rs. 3,96,000/- by a cheque drawn by Haridag Mundra on 2nd November, 1956 and Rs. 7,60,750/-by another cheque drawn by Haridas Mundra on 9th November, 1956. According to the prosecution these payments show that the purchase of the shares from Jessop and Company Limited inthe name of Sohanlal and Company was really purchased, by Haridaa Mundra in benami.
4. It also appeared from the materials before the learned Magistrate that on or about 10th November, 1959 Jessop and Company Limited instituted a suit for recovery of a sum of Rs. 7,70,617.94 nP. as the balance of the price of the aforesaid shares of the British India Corporation Limited with interest and costs. In that suit not only Messrs. Sohanlal and Company is a defendant but also Haridas Mundra is a party defendant in that suit. A complaint to the police on which F. I. R. was drawn up in the present case, was made while the said suit was remaining pending. The Police upon investigation submitted a chargresheet on 5th April, 1960. The Magistrate has made an order of commitment against Haridas Mundra and Rameswar Daga. The other accused in the case G. M. Robing remaining absconding, no order has been made in respect of that person.
5. Only Rameswar Daga has moved this Court for quashing the order of commitment and the charges framed against him. In this Rule, therefore, we are concerned only with the case against Rameswar Daga.
6. Appearing in support of the Rule the learned Advocate Mr. Ajit Kumar Dutta has recounted the total allegations of the prosecution against Rameswar Daga and has also referred to all the materials before the learned Magistrate on which the learned Magistrate has relied as the basis of the order committing the present petitioner to be tried on the charges framed against him. Mr. Dutt has contended that there is no material at all, far less, any sufficient material as would justify the learned Magistrate to commit the present petitioner to be tried on the charge? framed against him. Mr. Dutt has relied on the findings of the learned Magistrate himself in his order dated 28th of February, 1963, holding that prosecution has not produced any material to prove the agreement constituting the alleged conspiracy. At the moat, the materials before the learned Magistrate show certain circumstances, but those circumstances, according to Mr. Dutt, do neither justify an inference of guilt of the present petitioner for offences alleged, nor they satisfy the test of circumstantial-evidence which law insists, not merely as a rule of prudence but also as a rule of law, that circumstances to provide the basis of inference of guilt must not only be consistent with the hypothesis of guilt of the accused but also must be inconsistent with any reasonable hypothesis of his innocence. Mr. Dutt has drawn support for this contention of his regarding the nature of the circumstances alleged by prosecution on a passage in the order of the learned Magistrate which reads:
'It is urged by the learned Advocate appearing on behalf of accused No. 2 (Rameswar Daga) that from that fact alone it cannot be inferred that he was a conspirator with accused No. 1 (Haridas Mundra) that the accused No. 2 mighthave granted the cheque to the accused by way of accommdation loan and might not have known as to how the accused No. 1, utilised them. It is true that the said inference cannot also be ruled out. But from the above fact proved we find that two inferences can be drawn; one leads to an inference of guilt and another to the interface of innocence'.
Mr. Dutt has squarely attacked the view of the learned Magistrate that in such circumstances it will be for the jury to decide which inference should be accepted and that when one inference leads to the guilt of the accused No. 2 there is therefore, sufficient ground for committing him to the court of session along with accused No. 1 for standing trial for criminal conspiracy.
7. The learned Standing Counsel Mr. Anil Chandra Mitter has, however, contended that the circumstances for which basis has been laid by the materials before the learned Magistrate an sufficient for a prima facie inference of guilt at the stage of Section 207A Cr. P. C. What those circumstances are will be examined presently but it is also to be noticed that the learned Standing. Counsel has contested the proposition of law that at the stage of Section 207A Cr. P. C. even in a case of circumstantial, evidence it is at all necessary that the circumstances should be shown to be such as to pass the well-known test which I have mentioned above. Mr. Mitter contends that the language of Sub-section (7) of Section 207A Cr. P. C. requires only that the Magistrate is to opino that the accused should be committed for trial. That opinion, according to his argument, need not be based on materials which can be translated into evidence proper at the trial, far less that the test of circumstantial evidence requires to be employed at that stage.
8. The two learned counsel appearing for the contending parties before me have crossed words on a fundamental point regarding the interpretation of Section 207A particularly Sub-sections (6) and (7) of that section. There is no gainsaying that by comparison with Sections 209 and 210 Cr. P. C. the language in Sub-section (7) of Section 207A enacts a deliberate chango. While the language in Sub-section (6) has retained the material part of the language in Section 209 Cr. P. C. and requires that
'* * Magistrate shall, if he is of opinion that such evidence' and documents disclose any grounds for committing the accused person for trial, record his reasons and discharge him * * '
The language in Sub-section (7) is
'When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard the Magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence-the accused is charged'.
Mr. Mitter has emphasised that the language in Section 210 Cr. P. C. saying
'The Magistrate is satisfied that there are sufficient grounds for committing the accused for trial' has not been adhered to in Sub-section (7) of Section 207A Cr. P. C. His argument, therefore, is that it was the deliberate intention of the Parliament that any proceedings governed by the new section 207A for committing an accused person for trail on a particular charge it is not necessary that the Magistrate shall be satisfied that there are sufficient grounds to do so by the prima facie test of evidence adduced in a proceeding under Chapter XVIII of the Code and it will be enough if the materials before the Magistrate, though incapable of being translated into evidence proper at the trial, would induce the Magistrate to form the opinion that the accused should be committed for trial, he must frame a charge and make an order under Sub-section (10) committing the accused for trial. This is very bold argument indeed and even though it came from, the learned Standing Counsel I have no hesitation to reject it as too wide. Despite the particular language employed in Sub-section (7) it is no more and no less than the converse of Sub-section (6). Sub-section (6) requires that the Magistrate shall be of opinion that such evidence and documents disclose no grounds for committing before he may discharge the accused under that Sub-section. The converse is provided in Sub-section (7) that the Magistrate shall frame a charge if the Magistrate is of opinion that the accused should be committed for trial. This by itself clearly shows, in my view, that the opinion of the learned Magistrate must be that the evidence and, documents disclose grounds for committing the accused person for trial as would enable him to frame a charge and then make the order of commitment under Sub-section (10). Sub-section (10) itself requires that the Magistrate shall record briefly the reasons for such commitment. If grounds are not necessary for forming an opinion to frame a charge, it is impossible in my view to contemplate what reasons can the Magistrate record for such commitment for trial on such charge. I am, therefore, clearly of the view that to enable the Magistrate to frame a charge and make an order of commitment for trial he is to be of opinion that evidence and documents before him disclose grounds for committing the accused for trial. Such grounds can only be in a judicial proceeding based on materials and documents which are capable of being translated into evidence at the trial, though at the stage of Section 207A Cr. P. C, they need not come before the learned Magistrate in the form of formally proved evidence. In this view I am fortified by the authority of a Division Bench decision of this Court in the case of Panchanan Ballav v. State reported in : AIR1959Cal207 which was a case under Section 207A Cr. P. C. Their Lordships (J. P. Mitter and Bhattacharya JJ.) held: 'The new procedure is designed to ensure expedition. Nevertheless, the requirement of prima facie case for commitment is inherent in the section. If the evidence recorded under Sub-section (4) and the documents referred to in Section 173 disclose no grounds, that is no prima facie case, the Magistrate's duty is to discharge the accused. If, on the other hand, the documents concerned and/or the evidence taken under Sub-section (4) disclose a prima facie case, it is the Magistrate's duty to make an order of commitment. The right to cross-examine conferred upon an accused and the provision as to his examination for the purpose of enabling him to explain any circumstances appearing in the evidence against him as well as the requirement that the Magsitrate must record his reasons for discharging or 'committing the accused, as the case may be clearly indicate that the Magistrate's opinion that the accused should be committed for trial is conditioned by the existence of a prima facie case against him. In dealing with the documents referred to in Section 173, the Magistrate must consider if the materials furnished can be translated into evidence at the trial. If, for instance, the statement of a witness was mere hearsay or the confession of an accused was made to a policeman, the Magistrate must disregard both in making up his mind whet-her there exists a prima facie case against the accused. What the Magistrate, under the new procedure, must do is to consider not only the evidence adduced before him, oral as well as documentary, but also whether the materials as fur-nished by the documents are capable of being transformed into evidence. If either the evidence or the documents or both make out a prima facie case, he must commit. If the evidence and the documents together do not make out a prima facie case, he must make an order of discharge.'
I respectfully agree with this exposition of law by the Division Bench and hold that the new procedure has not done away with the necessity of Jaw that a prima facie case need be made out before the Magistrate is enabled to make an order of commitment for trial in the court of session.
9. Once that position is accepted as good law, which I do, it follows that for making but a prima facie case the Magistrate must have material before him which is capable of being translated into evidence and when so done that evidence would prima facie establish the guilt of the accused. This in cases where the evidence is only citcumstantial, must of necessity be governed by 'that well-known test of circumstantial evidence. To be a basis' as evidence, the circumstances in their totality shall be such as would not only, be consistent with the guilt of the accused but also inconsistent with any reasonable hypothesis of his innocence. Short of that, circumstantial evidence would not establish guilt of the accused even prima facie. The evidence establishing each item of circumstance need only pass the prima facie test that, if believed, it would establish the fact indicated by it. But the total bundle of the circumstances to pass a prima facie test need be of the character that would make circumstantial evidence a safe basis for the inference of the guilt of the accused.
10. Now we have to see what are the circumstances that prosecution has brought as materials to establish or even indicate prima facie as-would be capable of being translated into evidence at the trial. (1) There are materials to show that Rameswar Daga is the brother-in-law of Hari-das Mundra. (2) There are materials to show that Haridas Mundra in his capacity of a Director of Jessop and Company and British India Corporation Limited had entered into the transaction of purchase of shares of British India Corporation Limited from Jessop and Company Limited through the share brokers Messrs. Sohanlal and Company. (3) There are materials to show that Rameswar Daga had issued a cheque of a substantial sum towards the payment of the money due as price of those shares. There are all the circumstances which are available tp the prosecution against Rameswar Daga as materials capable of being translated into evidence at the contemplated trial, During his arguments Mr. Mitter sought to bring into the scale also another feature that in many other cases the other accused Haridas Mundra has been accused of similar offences in respect of other transactions and also many other cheques may have been issued by Rameswar Daga in connection with those other transactions. But I had to remind the learned standing counsel that those materials even if true would not be admissible evidence in the contemplated trial in this case and I had to warn myself to keep those out of consideration as utterly inadmissible and prejudicial matters. The totality of the circumstances abovereferred to, therefore, affords full justification forthe learned Magistrate's findings in his own orderthat the prosecution has not produced any material to prove the agreement which is said to be the criminal conspiracy. The learned Magistrate is right in thinking that an agreement which is alleged to be a criminal conspiracy need not and cannot often be proved by direct evidence and it often happens that participation in overt acts inpursuance of the alleged agreement provide good grounds for the inference of participation in the agreement itself. But in the present case theonly overt act is the issue of a cheque towards the payment of the price of the shares sold by Jessopand Company Limited, That such overt act by itself would not be sufficient material for inferring that there was participation by Rameswar Daga in a criminal conspiracy over that transaction isshown by the prosecution case itself that their witness Sohanlal had issued many cheques of similarnature in respect of this transaction of purchase ofshares, but those were innocently done by Sohanlalwithout any knowledge of, far less participation in, any criminal conspiracy. In my view, therefore, the totality of the circumstance available against Rameswar Daga is insufficient even for an inference of guilt of that person. When the test of circumstantial evidence is applied it falls far short of being inconsistent with any reasonable hypothesis of innocence of this particular accused. The prima facie inference, therefore, can only be one of innocence of Rameswar Daga.
11. The learned Magistrate has himself found that the materials are such that an inference of innocence of Rameswar Daga cannot be ruled out but he has made the order of commitment in respect of that accused only because of his view that when two inferences can be drawn, one leading to inference of guilt, another to the inference of innocence, it will be for the jury to decide which inference should be accepted. In my view, the learned Magistrate is clearly wrong there because in a case like present one depending entirely on circumstantial evidence, neither a Court nor the jury can find guilt of the accused when from the evidence an inference of innocence can be made, I have, however, already held that the materials produced did not afford sufficient ground for an inference of guilt of Rameswar Daga and the only prima facie inference warranted by these materials would be one of his innocence.
12. I, therefore, hold that the order of commitment for trial in the Court of Session has been made by the learned Magistrate illegally and improperly. I, therefore, set aside the order of commitment of Rameswar Daga. He is discharged under Sub-section (6) of Section 207, Cri. P, C. This would not affect the order of commitment made against the other accused Haridas Mundra.
The Rule is made absolute.