1. This Rule was issued at the instance of the complainant against an appellate order of acquittal by the Additional Sessions Judge 24 Parganas, reversing the conviction under Section 420, Penal Code and sentence of three months rigorous imprisonment and a fine of Rs. 1,000/-of the accused opposite party passed by a Magistrate, first class, Sealdah.
2. It is said by the complainant that on the basis of what he alleges to be a bogus order, the accused obtained a large sum of money from the complainant and gave him a false cheque which was dishonoured. The Magistrate convicted the accused. On appeal the Sessions Judge proceeded to exclude a large part of the oral evidence of prosecution witnesses believed by the trial Court, under Section 92, Evidence Act. It is regrettable that sessions Judges are for-getting even the Indian Evidence Act. The complainant and his witness said that the accused held out that the complainant was going to make the supplies as the sub-contractor of the accused. In the document Ex. 2 the word 'sub-contractor' does not appear.
The learned Sessions Judge is not clear whether the document is a finally concluded agreement or some provisional terms during the course of negotiation. If the learned Sessions Judge knew his Evidence Act, he should have known that he was first required to decide whether it was a concluded contract. Section 92 has no application to negotiations. Even if we take it that it was a finally concluded contract, provisos 2 and 6 would be enough to show that the learned Sessions Judge was entirely in error. It is always open to show how the term of a document are related to existing state of things and it is therefore always open to prove that the terms are those given to a sub-contractor; oral evidence is in such rases not excluded. It is on the basis of the oral evidence of the witnesses the Magistrate convicted and on the basis of Ex. 2, the learned Judge proceeded wrongly to exclude such oral evidence on the side of the complainant and acquitted the accused. This may be a very summary and shortcut method of deciding appeals but is not in accordance with the law.
3. In view of the order I am going to pass. T refrain from making any comment on the facts of this case. As the learned Judge's judgment is absolutely insupportable in law, the acquittal is set aside and the appeal is remanded for re-hearing.
4. The Rule is disposed of accordingly.