K.C. Chunder, J.
1. This Rule was issued at the instance of a complainant who alleged that he had been cheated out of Rs. 5500/-. He gave evidence but the learned Magistrate acquitted the accused saying that although the evidence showed a different state of things the complainant was not allowed to give such evidence because of Section 92 Evidence Act. What happened was that at the time of this contract an offer was made which is Ex. 1 which, begins with saying: 'We have the pleasure in advising you that the undermentioned goods are available as per details given hereunder' and one of the details of the offer was 'Ex godown of principal as per availability.' It is definitely written there: 'All offers are subject to prior sale etc.' There can be no doubt on the part of any person reading the document that it contained an offer by the firm Valcan & Co. (Agency) to Messrs. B. S. Madhukar.
The evidence that was sought to be given, and the learned Magistrate says himself that the oral evidence is to this effect, that when the contract was accepted and the price of Rs. 5500/- paid there was fresh contract namely that delivery was to beimmediately made. Section 92, Evidence Act does not deal with an offer but with a contract. There is nothing in law to prevent a party from varying the terms of an offer at the time when he actually concludes the contract by accepting the offer and paying the price and that is exactly what the complainant sought to prove. The learned Magistrate says that many witnesses were examined for this purpose, but as all the evidence was hit by Section 92 he would not examine the evidence though he is fair enough to say that there was sufficient evidence for the purpose. The learned Magistrate's view of the law was wholly erroneous because Section 92 has nothing to do with offers made. Section 92 fully allows offers to be varied at the time of acceptance and of being turned into regular contracts.
2. Therefore, the acquittals cannot but be set aside as they are merely based upon an erroneous view of Section 92 without any consideration of the evidence at all as frankly admitted by the learned Magistrate.
3. It is unnecessary for me to examine the preposterous proposition laid down by Mr. Biswas that even if a Magistrate himself says that he has not proceeded upon the evidence but has merely acted upon a view of the law, which view is clearly erroneous, acquittal should not be interfered with. No better case for interference can be made out than this.
4. Under the circumstances, the Rule is made absolute. The order of acquittal is set aside and the case is remanded to be tried by a different Magistrate.