1. In our opinion this case must go back for retrial and for the following reasons:
It being admitted that the appellant had received Rs. 479-4-0 on behalf of the complainant, the main question for the jury was whether the appellant had or had not paid this amount over to the complainant. The appellant received the amount by money order on 8th November 1925, and his case is that he paid it over to the complainant on 14th November 1925. The complainant filed a petition before the Deputy Commissioner of Police on 1st August 1928, alleging that the appellant had misappropriated the amount in conspiracy with the postal peon, and on 18th August 1928 the appellant filed a petition before the police in which he repudiated the allegations made by the complainant. The appellant followed this up by another petition dated 19th December 1928, and in para. 6 of that petition he stated that the complainant, after receipt of the money, had written to the railway company in connexion with other sums said to have been due to him, and that in doing so he had admitted having received the money in question. Now there are on the record three letters addressed respectively to the Secretary of the Railway Board, the Agent of the E.B. Railway and the Traffic Manager, and purporting to have been signed by the complainant. These three letters are dated 1st February 1926, and are couched in identical terms. Their language is somewhat obscure, but they mention some letter in which the railway authorities had intimated the amount payable to the complainant as gratuity, and they refer to this amount in terms which might be taken to mean that it had already been received by the complainant. It is clear that these letters are of considerable importance for the proper decision of the question as to whether the complainant had or had not received the amount referred to, but it would appear that their importance in this connexion was entirely overlooked at the trial. The letters have been marked as Exs. 22, 23 and 24, and appear to have been put in on behalf of the prosecution, but it is not known for what purpose they were put in. The complainant was not cross-examined with regard to them, and no reference was made to them in the charge to the jury. The prosecution case with regard to these letters appears to have been that they were forgeries., for the complainant in his deposition before the committing Magistrate, denied that they bore his signature, while the handwriting expert, who was examined in the case, was of opinion that the signatures were in the handwriting of the appellant, though he was not quite positive on the point. What the defence case is, or may be, with regard to these letters, cannot be ascertained, but it would certainly be open to the defence to contend that the letters had been issued under the instructions of the complainant, and that they had been signed either by him, or by the accused acting on his behalf, and that, in any case, they tended to support the contentions set forth in para. 6 of the appellants' petition of 19th December 1928.
2. These . are, in our opinion, matters which ought to have been placed before the jury for their consideration, and the failure to refer to them in the charge must be held to have been a misdirection.
3. The charge to the jury is also, in our opinion, defective in that it does not deal adequately with the question of the conduct of the complainant on the one hand and of the accused on the other hand. In particular the fact that the complainant waited for about three years before taking any serious steps for the recovery of his money, is a matter that ought, in our opinion, to have been brought prominently to the notice of the jury.
4. In view of the above omissions in the charge to the jury, the convictions and sentences are set aside and the case is ordered to be retried.
5. The appellant will remain on the same bail pending retrial.