1. In this case the accused has been convicted of an offence punishable under Section 408, I.P.C., and sentenced to undergo rigorous imprisonment for six weeks and to pay a fine of Rs. 1,000 and in default, to undergo further imprisonment for six months. The learned Magistrate further ordered that the whole of the money, if realized should be paid to the complainant as compensation.
2. The case for the prosecution is that the accused was a servant of the complainant and was left in charge of a business belonging to the complainant in Calcutta known as the Punjab Watch Company. The complainant fell ill and went to Amritsar of which place he is a resident. On his return, he found that the accused had removed all the stock in trade of the shop and converted it to his own use. The defence suggested by the accused was that he was not a servant of the complainant but a partner in this business called the Punjab Watch Company. The complainant gave evidence that the accused was his servant and in this he was corroborated by a man named Kissen Chand, P.W. 8. If Kissen Chand is believed it is very difficult to see how the accused can have any answer to the charge. After the complainant had discovered what had happened, he made inquiries and he eventually got the accused arrested by the police at Moradabad. In the possession of the accused when he was arrested were found two books of account. These books were seized by the police but were afterwards returned to the accused on his giving security for their production. The next step taken by the accused was that he filed a suit in the Amritsar Court for dissolution of partnership in which he made the complainant a defendant and asked for taking the accounts of the Punjab Watch Company. I will assume that this ease is defended and that the complainant denies the fact of partnership alleged by the accused. In the course of the proceedings before the learned Chief Presidency Magistrate it appears, from the order sheet that the complainant from time to time called for the production of the two books to which we have referred. The accused did not produce the books and he gave excuses for their non-production which appear to me to be extremely flimsy. It may be that his security has been forfeited by his conduct. But that depends on the terms of the security bond and we express no opinion with regard to that. Among other attempts to get the production of the documents on the part of the complainant is a petition filed by him on 24th June 1931, in which he asked that a notice should be given to the accused for the production of the books in Court for inspection. As I have said the accused never did produce these books for inspection.
3. However his failure to do so, is, it appears to the learned Magistrate, a ground to deprive him of the right to use these documents as material for his defence. The learned Magistrate based this view on the provisions of Section 164, Evidence Act, which provides that when a party refuses to produce a document which he has had notice to produce he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court. Accordingly, when in cross-examination the complainant was shown these books he refused to have anything to do with them or to answer any question with regard to them and in his refusal it is clear that he was supported by the learned Magistrate. In my opinion the learned Magistrate misunderstood the meaning and intention of Section 164. Speaking for myself, I am by no means convinced that Section 164 applies to criminals proceedings. Section 164 does not contemplate the production of documents for inspection. What it contemplates is that one party should call upon another in Court to produce a document of which, the first party has given the other notice to produce. It does not give him any right at any stage of the case to call upon his opponent to produce the document and use it or not as he sees fit. I do not myself see any indication in the section that the complainant can call for a document in this sense. We think that the learned Magistrate was wrong in not permitting the pleader for the defence to put these documents to the complainant and cross-examine him on them. The fact that the accused adopted an unreasonable attitude with regard to their production may be material when the time comes to consider as to what weight to be attached to them. We think that the learned Magistrate-was wrong in not permitting the documents upon which the accused claims to base the main part of his defence to be put to this particular witness for the prosecution. This seems to us to be a sufficient reason for setting aside the conviction. At the same time we consider that a very strong prima facie case has been made out by the evidence of the complainant and the witness Kissen Chand and we do not think that we should be justified in directing that the accused be acquitted.
4. We therefore set aside the order of conviction. But the appeal will remain pending for a period of three months. During that time if the accused so desires he can take reasonable steps to have the question decided in the Amritsar Court. The case will be laid before us again after the interval of three months for considering whether we should order retrial or pass some other order.
M.C. Ghose, J.
5. I agree.