1. This is an appeal by one Matilal Chakravarti who was convicted by a learned Additional Presidency Magistrate of an offence Under Section 420, Penal Gode and sentenced to undergo one year's rigorous imprisonment and to pay a fine of Rs. 500. In default of payment of the fine he was ordered to undergo a further period of six months' rigorous imprisonment.
2. The complainant in the case carried on business in the firm name of the Indo Trading Company with offices at No. 11, Netaji Subhaa Road. According to the complainant the appellant Matilal Ghakravarty accompanied by one Amarriath Bhattaeharyya, who was known to the complainant, came to him and offered to sell him 100 shares of the Indian Steamship Company. The case was that it was represented to the complainant that the shares had belonged to the appellant and that Amarnath Bhattaoharyya bad obtained them from him and was desirous of disposing of them. The complainant agreed to buy these shares and paid the price of them by cheque and the date of the cheque was 20th June 1947 which, from the evidence, must have been the date on which the transaction was entered into.
3. On 2nd July 1947 the complainant alleges that the appellant and Amarnath Bhattaeharyya again came to him and offered to sell 100 shares of the Indian Iron & Steel Company represent. ing that the shares belonged to Bhattaeharyya and that he had obtained them from the appellant. The shares were bought by the complainant and paid for.
4. When the complainant took steps to have the transfers of these shares registered it was discovered that the share scrip had been stolen. It appears that the complainant had sold the shares which he had purchased to a third party and eventually that third party brought criminal proceedings against the complainant, the present appellant and Bhattacharyya charging them with an offence Under Section 411, Penal Code. This case however was compounded.
5. The complainant then brought these proceedings against the appellant and Amarnatk Bhattacharyya as his co-accused alleging that he Lad been cheated and deceived into buying these shares and consequently the accused persons were guilty of an offence Under Section 420, Penal Code. During the course of the proceedings the complainant compounded the offence with Amarnath Bhattacharyya and the case then proceeded against the appellant alone.
6. A body of evidence was called to show that the scrip of these shares had been stolen and that the appellant had no ownership in them. The complainant himself gave evidence and stated that it was represented to him that the shares had originally belonged to the appellant and that as a result of those representations the complainant purchased the shares from Amar. Nath Bhattaeharyya who, it was said, had obtained them from the appellant. Upon those facts the learned Magistrate convicted the appellant of cheating and sentenced him as I have indicated.
7. I have always suspected that charges of cheating are made in the Presidency Magistrate's Courts when there is really no desire to punish the offender. Such charges are often made with a view to obtaining quick payment and the history of these cases establishes, I think, beyond all doubt that these criminal charges were made not with a view to having the guilty persons punished, but were made with a view to obtain, ing compensation for the loss which the complainants had suffered. As I have said, the first complaint made was against the complainant in the present case, the appellant and Amarnath Bhattaoharyya and when the complainant in that case was offered compensation for his loss the case was promptly compounded. In the present case it is clear that Amarnath Bhattacharyya must have offered the complainant some compensation because the case against him was compounded and it proceeded only against the appellant. However, it matters not what the motive was in bringing these proceedings. If the appellant has been proved to be guilty he must be punished whether the complainant's intention was originally to have him punished or to force him to pay compensation.
8. Before dealing with the case, I should like to refer to another matter. To prove the case for the prosecution ten witnesses were called and the main witness, namely, the complainant B. C. Dutt, was not called until practically the end of the hearing of the evidence in chief, He was in fact the ninth witness called. No one could follow this case intelligently without knowing what the complainant had to say and I cannot understand Magistrates allowing the prosecution to keep book the main witness until the very end of the examination-in-chief of the prosecution witnesses. The prosecution frequently desires to keep the main witness to the end in order that it may fill up all gaps which have been left by earlier witnesses and possibly ex-plain what appear to be contradictions of earlier witnesses. A case can only be appreciated if it is presented properly and the proper way to present facts in most cases is to present the facts chronologically. The whole of this case turns on whether the complainant had been cheated and the other evidence is wholly unintelligible without the evidence of the complainant that he purchased these shares as the reault of certain representations. Magistrates should insist that cases are presented before them intelligently and properly and should not allow the prosecution deliberately to keep witnesses back until practically the last day in the trial.
9. The proseoution in this case had to prove that the appellant had cheated the complainant. The charge was Under Section 420, Penal Code and that section reads as follows:
Whoever cheats and thereby dishonestly induoea the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either desoription, for a term which may extend to seven years, and shall also be liable to fine.
10. It will be seen that in order to constitute an offence Under Section 120, it must be shown that the person who parted with the property was cheated and thereby dishonestly induced to deliver property.
11. 'Cheating' is defined in Section 415, Penal Code in these terms:
Whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, ok to consent that any person shall retain any property, or intentionally Induces the person so deceived to do or omit to do anything which he would not do 01 omit if he were not to deceived, and which act or omission causes or is likely to cause damage of harm to that person in body, mind, reputation or property, is said to 'cheat'.
12. It will be seen from this definition that to cheat a person there must be a dishonest and fraudulent intent. A person may be deceived quite innocently, but such deception can never amount to cheating, Where however a person is deceived knowingly, then the deception might well amount to cheating. A man may be induced to do something on a false representation made to him. If the person making the representation honestly believed the representation to be true, there can be no question of cheating. But if he knew that the representation was false and he made it with a view that the other person should act upon it then that would amount to cheating.
13. It follows therefore that in the present case the prosecution had to prove not only that the shares sold to the complainant were stolen shares and that the representation made that they originally belonged to appellant was false, but the prosecution had also to show that that representation was false to the knowledge of the appellant and was made in order to deceive the complainant and to induce him to buy.
14. There can be no doubt that the prosecution in this case established beyond all doubt that the share scrip, the subject-matter of both these sales, had been stolen. But in my opinion there was no evidence at all which would subsection that the appellant knew that the scrip was stolen and that the representation made that the sorip had originally belonged to him was made falsely to deceive the complainant. Even if the share scrip had been stolen, nevertheless, the appellant might quite honestly have purchased the shares from some third person who might have been the thief or who might have been a receiver or who might in his turn have purchased the shares from a thief or a receiver. The appellant's case was that he had in fact purchased these shares from Suren Das and there was no evidence called on behalf of the prosecution to establish that such was not the case. All that the prosecution proved in this case was that these shares had been sold to the complainant upon a representation that they had originally belonged to the appellant and there was no evidence at all which went to show that the appellant had any knowledge that these shares were stolen or had been originally obtained dishonestly.
15. The learned Magistrate was of opinion that the question as to bow the appellant came into possession of these shares was a matter especially within the appellant's knowledge and therefore it was for him to prove how he acquired these Bhares by reason of Section 106, Evidence Act, wrongly referred to by the Magistrate, I think, as Section 106, Evidence Act.
16. Section 105, Evidence Act, deals with the question of the burden of proving that the case of an accused person comes within one of the exceptions in the Penal Code or within any special exception or proviso contained in any other part of the Code or in any law defining the offence with which he is charged. The section places the burden of proving the existence of such circumstances upon the accused. That section can have no application to the present case as no questions of exceptions arise.
17. Section 106, Evidence Act, is in these terms :
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
18. It has been argued on behalf of the respondent that the prosecution could not possibly give evidence as to how the appellant obtained these shares. How he obtained them was a question especially within his own knowledge. Therefore it was urged that the prosecution were relieved from the obligation of proving such facts and that the onus of proving that the appellant obtained these shares innocently was upon him. Learned Advocate for the Crown concedes that the prosecution had to prove a dishonest or fraudulent representation. Bat the learned Advocate does suggest that the Court could hold that the representation made was dishonest and fraudulent unless the appellant showed that he acquired these shares honestly.
19. If Section 106, Evidence Act, could be applied to the facts of this case then the Court might hold that the representation made to the complainant was dishonest and fraudulent and made to induce him to buy these shares. But Section 106, Evidence Act can never be used to shift the v onus of establishing an essential fact from the prosecution on to the shoulders of an accused person. This I think is abundantly clear from a comparatively recent decision of their Lordships of the Privy Council in the case of Stephen Seneviratne v. The King, 41 C. W. N. 65 : A.I.R. (23) 1936 P.C. 289 37 Cr.L.J. 963. In that case it was expressly held that Section 106 of Ceylon Ordinance no. 14 of 1895, which is the same as Section 106, Evidence Act, does not cast any burden on an accused person to prove that no crime, was committed by proving facts lying specially within his knowledge. The section does not warrant a direction that if anything is unexplained which the jury think the accused could explain they not only may but must find him guilty.
20. What the learned Additional Presidency Magistrate has done in this case is what their Lordships of the Privy Council have laid down cannot be done and that is to convict the accused because he has failed to establish that he obtained these shares honestly. If the onus of proving dishonesty is not shifted by reason of Section 106, Evidence Act, then it appears to me there was no evidence at all in this case to establish that the appellant knew these shares to be stolen and was acting dishonestly and fraudulently when he represented that they had been acquired by him and had been sold by him to Bhattacharyya. He might well have acquired this scrip honestly and it was not for him to prove that fact. It was for the prosecution to prove facts from which the Court could infer that his possession of these shares was not honest possession and that his representation was made dishonestly and with intent to defraud.
21. Learned Advocate for the prosecution has referred us to a recent Bench decision of this Court (Lachman Singh v. The King), in Criminal Revn. no. 453 of 1943 decided on 26th November 1948 : A.I.R. (36) 1949 cal. 235 : 60 Cr.L.J. 456. There are observations in the judgment of the Bench which would suggest that B. 106, Evidence Act, might affect the onus but towards the conclusion of the judgment the law is in my view accurately stated, The learned Judges observed :
The ordinary rule which applies to Criminal trials in this country that the onus lies on the prosecution to prove the guilt of an accused is not in any way modified by the provisions contained in Section 106, Evidence Act. This section on the other hand is to be taken along with the provisions of that general rule.
22. There is therefore nothing in this Bench judgment to support the view of the learned Additional Presidency Magistrate and in any event if there was, we could not follow this Bench case if we found it in conflict with the view of their Lordships of the Privy Council. The statement of the law however in this Bench Case is in accord with the decision of their Lordships of the Privy Council and creates no difficulty.
23. It appears to me in the present case that the prosecution gave no evidence to show that the representation made to the complainant which induced him to purchase these shares was made dishonestly or fraudulently. The evidence is entirely consistent with a false representation made honestly and with a belief in its truth. If the representation was made honestly then no question of cheating can possibly arise. It follows that the prosecution in this case failed to prove 3n essential element of the crime and that being so, the appellant should not have been convicted, and therefore his conviction cannot be bus-tained.
24. I would therefore allow this appeal, set aside the conviction and sentences and acquit the appellant. He need not surrender to his bail and his bail bond is cancelled. If he has paid the fine or any part thereof it must be refunded.
P. Mitter, J.
25. I agree.