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Paresh Chandra Bhowmick Vs. Usharanjan Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Case NumberCriminal Revn. No. 784 of 1948
Judge
Reported inAIR1950Cal346
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 439 and 439(1)
AppellantParesh Chandra Bhowmick
RespondentUsharanjan Ghosh and ors.
Appellant AdvocateNalin Chandra Banerjee and ; Chintaharan Roy, Advs.
Respondent AdvocateMoni Mukherjee, Adv.
Cases ReferredHarendra Nath v. Bejoy Krishna
Excerpt:
- .....was heard by roxburgh and j.n. mujumdar jj. the complainant who obtained this rule stated that the learned magistrate was wrong is discharging the accused on the charge of cheating and he also complained that the magistrate had not investigated the case with respect to the other allegations made charging the accused with forgery, the forgery consisting in putting in the rubber stamp entry on the receipt. their lordships remanded the case to the trial court for rehearing and in the order of remand certain observations were made which are of great importance for the decision of this rule. i shall therefore quote those observations which were made in the remand order:'the learned magistrate in discharging the accused has taken the main prosecution case to be one of cheating for non-payment.....
Judgment:

Sen, J.

1. This rule came up for hearing before Mookerjee and Das Gupta JJ. As there was a difference of opinion between them the matter has been placed before me for disposal by my Lord the Chief Justice.

2. The facts giving rise to this rule briefly are as follows. The Maharaj Kumari Binodini Devi of Manipur deposited the sum of Rs. 5,000 (rupees five thousand only) as a fixed deposit for six months in the Calcutta Mercantile Bank Limited at the Nabadwip Branch. Six months expired on 5th February 1947. On 6th of that month Maharaj Kumari Binodini Devi send her agent, Paresh Chandra Bhowmik, who is the complainant in this case, to get back the money deposited as the date of maturity had passed. Bhowmik appeared at the Nabadwip Branch of the Bank but he was told that there was no money there and he was asked to come to Calcutta to take money. On 7th February 1947, Bhowmik came to the Calcutta Head Office and he was put off for a week. He went to the bank from time to time and payment was deferred. Finally, on 25th February 1947, he went to the Bank and insisted on payment saying that he would not leave the bank until he was paid. The fixed deposit receipt was taken from him by Prova Ranjan Ghose, one of the accused, who went into a room where the other two accused Usha Ranjan Ghose and Suresh Ghosh were seated Thereafter Bhomik was called into the room and the receipt in a folded condition was returned to him. He was asked to wait for a few days as some Government papers had to be cashed and he was promised payment. On 28th February 1947 a letter was received by Maharaj Kumari Binodini Devi which was dated 10th February 1947, informing her that her Fixed Deposit had been automatically renewed as per rubber stamp on the receipt as she had not applied to receive payment within three days of the date of maturity. The case for the prosecution is that there was no rubber stamp on the receipt at all on 25th February 1947 and that the rubber stamp was put on the receipt on that date when the receipt was taken away from Bhowmik by Probha Ranjan Ghose. It is also the case for the prosecution that the letter was fraudulently ante-dated. When this letter was received criminal proceedings were initiated by Paresh Chandra Bhowmik alleging that the three accused persons were guilty of forgery, of using a forged document, of cheating and of forgery for the purpose of cheating. Upon this complaint being made summonses were issued against the three persona only with respect to the allegation of cheating, that is to say, summonses were issued stating that the accused had been charged with having committed an offence punishable under Section 420, Penal Code. The accused appeared and were tried by Mr. H.K. Bose, Honorary Presidency Magistrate. He discharged the accused with respect to the offence punishable under Section 420, Penal Code. He did not make any investigation regarding the other charges alleged in the petition of complaint in any detail and passed no specific orders with respect to those offences. Against this order of discharge this Court was moved and a rule was issued which was heard by Roxburgh and J.N. Mujumdar JJ. The complainant who obtained this rule stated that the learned Magistrate was wrong is discharging the accused on the charge of cheating and he also complained that the Magistrate had not investigated the case with respect to the other allegations made charging the accused with forgery, the forgery consisting in putting in the rubber stamp entry on the receipt. Their Lordships remanded the case to the trial Court for rehearing and in the order of remand certain observations were made which are of great importance for the decision of this rule. I shall therefore quote those observations which were made in the remand order:

'The learned Magistrate in discharging the accused has taken the main prosecution case to be one of cheating for non-payment of money and he holds that the case is really one of debtor and creditor and not a criminal case. He briefly refers to the rubber stamp question but says that as the prosecution could not say who was responsible for it no prima facie case had been made out.

So far as the first reason given by the learned Magistrate is concerned, we have nothing to say.

In so far as the matter of the rubber stamp is concerned, we note that on the back of the printed application for fixed deposit account, Ex. 5 which was submitted by the Maharaj Kumari when the amount was deposited, Clause 6 is in very similar terms to those in the rubber stamp and now challenged. The only material difference being that the period is seven days and not three days. In those circumstances, it would be difficult for a charge of forgery to succeed in our opinion.

But there remains the prosecution case that the accused have fraudulently dealt with the Maharaj Kumari in obtaining the receipt from the complainant on the pretext of paying the money and then sending an antedated letter alleging that the receipt had been automatically renewed. Without wishing to express any opinion on this point, we think that this aspect of the case requires further enquiry. With these comments we therefore set aside the order of discharge and remand the case for disposal by the Chief Presidency Magistrate or some other Presidency Magistrate to whom he may transfer it other than Mr. H. K. Bose.'

3. The case sent back on remand was heard by Mr. A. Mukherjee, Additional Presidency Magistrate, Calcutta. He interpreted the order of remand of this Court as limiting the scope of his enquiry to the charge of cheating only. This is what he says:

'By orders passed by the Hon'ble High Court in previous proceedings relating to this case the scope of enquiry was limited to fraud and no other offence. It was seen from the evidence adduced by the prosecution .....'

He thereafter proceeded to try the accused on a charge of cheating punishable under Section 417, Penal Code, and holding that this charge has not been made out, he acquitted the accused. Against this order of acquittal this Court was again moved and the present rule was issued. As I have stated before it was heard by Mookerjee and Das Gupta JJ. They have differed. Mookerjee J. says that as the order passed by Mr. Bose was an order of discharge, this Court in remanding the case had no power to limit the trial. In this view he held that the order of remand must be construed an order remanding the entire case for retrial, that is to say, the order imposed a duty on the learned Magistrate to investigate not only the charge of cheating but also the charge of forgery and the other allied offences. He supports this view by saying that an order of discharge is different from an order of acquittal and that a person discharged could not take the benefit of Section 403, Criminal P. C., which lays down the doctrine of autrefois acquit and that he was liable to be tried again for the same offence on a fresh petition. In support of this view he cites two Full Bench decisions, namely, the cases of Dwarkanath v. Benimadhab, 28 cal. 652: (5 C. W. N 457 F. B.) and Emperor v. Chinna Kaliappa, 29 Mad. 126: (3 Cr. L. J. 274). His view is that these decisions are authority for the proposition that when an order of discharge is set aside by the Court on revision the entire case is open to the Magistrate and he has the jurisdiction to hear the entire matter, and that it was not open to this Court to set aside the order of discharge and remand the case for a re-hearing with respect to any particular charge. In my opinion this view of Mookerjee J. is wrong. It is true that an order of discharge is different from an order of acquittal and such an order does not protect a person discharged from being subject to fresh proceedings in regard to the offence with respect to which he was discharged, but it does not follow from this that where an order of discharge comes up before this Court in revision the jurisdiction of this Court is fettered in the way suggested by Mookerjee J. This Court has ample jurisdiction to send the case back on remand for the retrial of any particular offence while upholding the decision of the Court below with respect to other offences. In my opinion this view is clearly supported by the provisions of Section 439 (1), Criminal P. C. That section says that this Court on revision may exercise in its discretion any of the powers conferred on a Court of appeal by Sections 423, 426, 427 and 428 of the Code. Now, it is quite clear that when there is an appeal the Court may remand the case with respect to one of several offences and accept the lower Court's decision with respect to the other offences. A limited order of remand is clearly allowed to an appellate Court and there are innumerable decisions where this power has been exercised. This Court in its revisional jurisdiction has all these powers and perhaps something more. In this connection I may refer to Section 423, Criminal P. C., which mentions some of the powers of the appellate Court. Section 423 (1) (a) of the Code states what the Court of appeal may do in the case of acquittal. Sub-section (b) of Section 423 (1) states what the Court may do in a case of conviction. Sub-section (c) deals with an appeal from any other order and says that the appellate Court may alter or reverse such order. Sub-section (d) says that the appellate Court may make any amendment or any consequential or incidental order that it may think just and proper. The case falls under Sub-section (d) of Section 423 (1) of the Code. The order here is a consequential or incidental order. If the Court finds that the charge of forgery cannot be established but that there are materials for investigating a charge of cheating, the Court may remand the case for the trial of the charge of cheating only on an application against an order of discharge.

4. Again even if the order passed by Roxburgh and Majumdar JJ. be not an order according to law, this Court cannot sit on appeal on such an order and say that it is a bad order. The order is binding on the lower Court and also binding on this Court until it is set aside in appropriate proceedings. For these reasons I hold that Mookerjee J.'s view in respect of the above matter is not correct.

5. The next point for consideration is whether the order passed by Roxburgh and Majumdar JJ. was an order of the limited nature contended for on behalf of the bank. This question has caused me a certain amount of trouble, but after careful consideration I am of opinion that the order of remand was not a 'limited' order. I have quoted the order in extenso. It was argued that the learned Judges mentioned above came to a definite conclusion that a charge of forgery was not maintainable and that they directed the Court below not to deal with any charge of forgery but to confine the trial to a charge of cheating. In Para. 2 of the order of Roxburgh and Majumdar JJ. as reproduced by me there is no final decision on the question of forgery. What their Lordships said is that it appeared to them having regard to the circumstances that a charge of forgery would be difficult to establish. It was merely an expression of opinion regarding the difficulty in establishing a charge of forgery upon the materials then before their Lordships. Their Lordships no where say that the charge of forgery had failed and that therefore the learned Magistrate should not investigate that charge. When the case was sent back for retrial it was tried de novo and fresh evidence was taken. Upon that fresh evidence the charge of forgery may well have been established. This contingency may have been in the minds of the learned Judges and it is for this reason perhaps they did not express any definite opinion that the charge of forgery had failed and did not expressly limit the retrial to the charge of cheating only. In this connection I would draw attention to the last paragraph of the order of remand. Their Lordships do not use the word 'cheating.' They used the words 'fraudulently dealt with.' Now, a person may be fraudulently dealt with by the commission of forgery or by some other offences. It seems to me therefore that the Court below was directed to rehear the entire matter and to decide whether on the evidence it could be said that the Maharajkumari had been fraudulently dealt with. If that is the correct interpretation, then it was open to the Magistrate to consider the allegations of forgery and of the use of a forged document. He has the power to investigate any other allied offences which the evidence might disclose as showing fraudulent dealing. In my opinion the order of remand did not limit the Magistrate's scope of enquiry to one of cheating but it directed the Magistrate to consider all the evidence and to decide whether the evidence disclosed that the Maharajkumari bad been fraudulently dealt with and whether such fraudulent dealing would amount to an offence punishable under the Penal Code. As I have said before the interpretation of the order of remand has presented some difficulty to me but I think that this is what their Lordships intended. That being so, I hold that the learned Magistrate was quite wrong in limiting the scope of his enquiry to one of cheating only. By reason of this error the whole trial has been vitiated.

6. It was next argued by learned advocate appearing for the bank that this Court in revision should not easily interfere with an order of acquittal, and he has cited a case decided by me which lays down this proposition, Harendra Nath v. Bejoy Krishna, A. I. R. (36) 1949 Cal. 171 : 50 Cr. L. J. 241. I am always averse to interfering with orders of acquittal but in the present case I consider that this order should be set aside. There has been no real trial because the learned Magistrate has erred in interpreting the order of remand. The order of acquittal passed in such circumstances is really no order at all and in my opinion a serious error of law of this description which results is an order of acquittal should be taken notice of and such an order should be set aside. Further, the case is one of public importance. If the case be true, then it shows that a bank which is entrusted with public money has by forgery and cheating deprived its client of her dues. It is of utmost importance that banks should conduct their business in a scrupulously honest manner and when charges like these are brought against a bank there should be a proper investigation. For this reason the order of acquittal which is bad because of an error of law should be interfered with.

7. Mookerjee J. has not expressed any opinion on the question whether the evidence established the charge of cheating or not. Mr. Das Gupta J. has expressed the view that the evidence adduced doss not establish the charge of cheating Having regard to the decision at which I have arrived I do not think that I should give expression to any opinion on the matter as it may impede a free decision of the matter by the learned Magistrate.

8. I accordingly set aside the order of acquittal and remand the whole case for rehearing by the learned Magistrate in accordance with law and in the light of the observations made above. The rule is made absolute.


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