1. This Rule was issued on the Chief Presidency Magistrate and upon the opposite patty to show cause why an order of acquittal should not be set aside. The material facts are as follows: The present petitioner filed a petition of complaint against the two opposite parties on 5-12-1945, alleging that they had committed offences punishable Under Section 406, 420 and 420/114, Penal Code.
2. The case for the prosecution briefly was that the complainant is the manager of the firm known as the Commercial Bureau of No. 28, Strand Road, Calcutta, and that that firm carried on business of manufacturing and supplying black-tape and micanite goods to the Government for war purposes, and that in the year 1945 they obtained a certain quantity of silk yarn by means of Government requisition, which silk yarn was required to be made up into silk materials. He was approached by the accused persons who represented themselves to be the managing directors of the firm known as Shree Ram Silk Mills Ltd., and the accused persons persuaded the complainant to make over the silk yarn to the accused for manufacture, and subsequently the accused persons persuaded the complainant to advance them certain sums in order to facilitate the manufacture of the silk goods. Between the 30th July and 13th NOV. 1945, the accused persons supplied 384 yards only of woven silk and about 860 yards of woven silk remained outstanding. The case for the prosecution further was that in spite of demands made by the complainant the accused did not supply the balance of the silk material, nor did they return the unused silk yarn. On the other hand, they removed their machineries and all goods from their Mills without giving any intimation that they were doing so, or without giving the complainant any intimation of their subsequent office address.
3. The two accused persons ware summoned and placed on their trial. After evidence had been recorded, the Magistrate framed a charge Under Section 406 of the Penal Code against both the accused persons to the effect that they had committed breach o trust in respect of the balance of the silk yarn entrusted to them and also in respect of the sum of money advanced to them.
4. The accused pleaded not guilty. Witnesses were examined for the prosecution and cross-examined. On 20-7-1946, the following order was recorded in the order sheet:
Two P.Ws. cross-examined. The accused persons cross-examined Under Section 342, Or. P.C. No. defence. To 25-7-46 for arguments. Accused as before.
5. On 25-7-1946, an application was put in by the complainant for adjournment, the ground being that during investigation there had been a search of the premises of the accused and a certain quantity of silk yarn had been seized in that search and that it was necessary to prove the search list. But the search list was misled. Apparently, attempt was made to obtain the search list from the police and an explanation from the police officer in connection therewith had been called for and was to be considered on 3-8-1946. Moreover, the complainant had also called upon the Registrar of Joint Stock Companies for production of certain documents in order to show that both the accused persons were managing directors of Sree Bam Silk Mills Ltd., that their office was at No. 18, Rai Mathuranath Choudhury Street, Baranagore, and that they had not given any notice to the said Registrar of the removal of their office. The Registrar, Joint Stock Companies, had not, by 25-7-1946 produced those documents which, according to the prosecution, were necessary to establish the case against the accused. The learned Magistrate refused to grant adjournment and then heard arguments of both sides. After hearing the arguments of both sides, the learned Magistrate recorded the following order:
In this cage the ingredients of Section 406, I.P.C. have not been fulfilled; I find the accused persons not guilty o the charge Under Section 406, I.P.C. and order their acquittal Under Section 258, Cr. P.C.
6. Obviously, the learned Magistrate was justified in acquitting the accused persons in so far as the charge of criminal breach of trust of the money advanced to them was concerned. A reasonable interpretation of that transaction was that this was merely a loan and that failure to repay this loan did not constitute a criminal breach of trust.
7. Difficulty arises in respect of the silk said to have keen entrusted to the accused. The case for the prosecution was that silk was obtained with difficulty at that time and that it was necessary to get Government assistance in order to enable the complainant to get his silk yarn, that a certain quantity of silk was made over to the accused persons, in order that it should be made into silk material and returned to them. The case further was that the quantity of the silk yarn, which was made over to the accused, had not been returned and had, therefore, been misappropriated.
8. The defence was, according to the statement of accused filed under the provisions of Section 342, that the accused persons were unable to manufacture the whole of the silk material with the yarn, but that the balance of the yarn had not been misappropriated and was still ins their hands and it was further their case that they were ready at all times to return the balance to the complainant on adjustment of account.
9. The only question for consideration was whether this quantity of silk yarn had, or had not been misappropriated. The other questions were incidental to this one. The learned Magistrate seems to have believed that the accused persons did send a letter Ex. A to the complainant before the case was instituted, although strictly speaking there was no evidence to show that that letter had been sent. There was cross-examination of the complainant's witnesses directed to show that the complainant and his partner were aware, before the institution of the proceedings, of the change of address of the accused persons; and the learned Magistrate, according to his explanation, seems to have been impressed with that evidence. The only reason for which I should be justified in interfering with this order of acquittal would be that the main issues had not been properly tried by the learned Magistrate. If the learned Magistrate had considered the proper issues and had disbelieved the evidence, obviously I should not be justified in interfering with an order of acquittal, even though I were not of the same opinion as the Magistrate in the matter. The question is whether in view of the very brief statement of reasons given by the learned Magistrate, I can hold that he has not applied his mind to the real issues in the case.
10. The difficulty in all these cases is that at Presidency Magistrate is not required under the law to write any judgment at all in certain cases; and where he passes an order of acquittal, he need not give the reasons which induced, him to come to the conclusion at which he arrived. Such being the case, the mere fact that the statement of reasons is extremely brief, is not itself sufficient to justify interfering with the acquittal and is not sufficient in itself to indicate that the learned Magistrate has not considered all the issues. I have been through the evidence in the case for the purpose of seeing what kind of evidence was adduced and not for the purpose of seeing whether I believed it myself, and after doing so I am not con lanced that the learned Magistrate failed to consider what were the issues to be tried and failed to apply his mind to those issues and to the evidence regarding the issues. It may easily be that the Magistrate disbelieved the evidence on which the prosecution relied and if so, he was entitled to do so and to acquit the accused and he was acting quite within his jurisdiction in doing so without assigning any, reason. In the circumstances, I do not feel justified in interfering with the order of acquittal. I, therefore, order that this rule be discharged.