1. This is a reference by the learned Officiating Additional Sessions Judge of Chittagong under the provisions of Section 307, Code of Criminal Procedure. The accused was charged before the learned Officiating Additional Sessions Judge and a Jury with having committed offences under Section 406, Indian Penal Code (two counts), Section 457 read with Section 471 and Section 474, Indian Penal Code, and Section 477A, Indian Penal Code (two counts). The Jury' by an unanimous verdict found the accused not guilty of the first offence charged under Section 406, Indian Penal Code. They were divided in their verdict with regard to the second offence charged under Section 406, Indian Penal Code, and found the accused not guilty by a majority of 3 to 2, and they gave an unanimous verdict of not guilty as regards the charges framed under Section 477A, Indian Penal Code. As regards the divided verdict of the Jury in respect of the second offence charged under Section 406, Indian Penal Code, the learned Judge did not disagree with the majority of the Jury and, therefore, the accused was acquitted on the two charges framed under Section 406 and the charges framed under Section 477A, Indian Penal Code. With regard to the charge framed under Section 467 read with Section 471, Indian Penal Code, the Jury were divided in the proportion of 3 to 2. There was a similar division between them on the charge framed under Section 474, Indian Penal Code. On these charges, the learned Judge disagreed with the verdict of the majority of the Jury and has made the present reference to this Court under the provisions of Section 307, Code of Criminal Procedure.
2. The facts relating to the case, so far as they have been laid before us, appear to be quite simple. The District Board of Ohittagong were contemplating certain repairs being made to a road, named Anderson Road, within the limits of the Board's jurisdiction. In the ordinary course of business, they called for tenders form persons willing to undertake the work. In order that the tenders might emanate form persons who generally undertake the work, the District Board required a deposit of Rs. 200 from every intending tenderer before he lodged his tender with the District Engineer. For the purpose of lodging that money, a document in triplicate called a chalan was made out. The sum of Rs. 200 that was lodged with respect to this possible tender formed the subject of the first charge under Section 406 Indian Penal Code. The person who lodged that money was one Mohsan Ali. The other charge under Section 406, Indian Penal Code, had reference to a sum of Rs. 458, which was also deposited by Mohsan Ali, he having been the person whose tender had been accepted for carrying out the repairs to Anderson Road. The accused has been acquitted in respect of both the charges under Section 406, Indian Penal Code, and if I may say so without disrespect to the learned Sessions Judge the acquittal of the accused on the charges framed under Section 406, Indian Penal Code, probably took place owing to what I consider to be a serious misdirection of law contained in the charge of the learned Judge to the Jury with reference to the criminality of the accused or his accountability with respect to those sums. The learned Judge seems to consider that, unless the actual receipt and misappropriation by the accused is proved, he cannot be convicted of an offence under Section 406, Indian Penal Code, and that the Crown should be called upon to give direct evidence proving who were the conspirators with the accused in the offence and who were the abettors. The proof of abetment does not require to go so far as that. However, the fact remains that the present accused has been acquitted with respect to both the charges framed under Section 406, Indian Penal Code, No Court is entitled to go behind the verdict of not guilty given on that issue, and we are bound to assume in this reference that the accused is not guilty with respect to both these sums of Rs. 200 and Rs. 458 which formed the subjects of the charges under Section 406, Indian Penal Code. The learned Officiating Deputy Legal Remembrancer in opening the letter of reference admitted the serious difficulty that he had been placed in, by reason of the learned Officiating Additional Sessions Judge having accepted the verdict of the Jury with regard to the charges under Section 406, Indian Penal Code. If the learned Officiating Additional Sessions Judge considered that the interests of justice required a reference to this Court, I should say that he would have been better advised if he had referred the whole case, leaving it to this Court to consider the whole of the evidence that was placed before the Jury. As it is, this Court is precluded from considering whether, the accused misappropriated or had a hand in misappropriating any portion of these sums of Rs. 200 and Rs. 458. We have, therefore, to approach to consider the charges framed under Section 467 read with Section 471 and Section 474, Indian Penal Code, with the finding that is conclusive on the Crown that the accused did not misappropriate these two sums nor that he had any hand in misappropriating them.
3. Now, what is the evidence with reference to the charge framed under Section 467 read with Section 471, Indian Penal Code? The charge is, it must be remembered, that the accused dishonestly used this document--the chalan on the 26th January of the present year as genuine. We are not concerned with any prior user, although the case of prior user which, so far as we can gather from the facts, was a stronger case falling within Section 471, might have been placed before the Jury. But the Crown elected to make a case of the user on the 26th January and, unless they can prove that case, the accused is entitled to be acquitted. Now, what was the evidence that the Jury had before them? The evidence of the user on that date lies in a very narrow compa Sections The witnesses for the prosecution who speak to that point are, first, prosecution witness No. 1, Mohendra Lal Chowdhury, who is a clerk in the same office as the accused. The second witness is Rai Bahadhur Satish Chunder Sen, who is a gentleman of considerable position in the District, because he is not only the Vice-Chairman of the District Board but also holds the highly responsible office of being the Senior Government' Pleader in that district. The other witnesses are subordinate officers in the District Engineer's office proving more or less the same facts as prosecution witness No. 1. As regards the prosecution witness No. 1, so far as we can see, his evidence agrees with the evidence of prosecution witness No. 2, Rai Bahadur Satish Chunder Sen. But in the course of the cross-examination, the Rai Bahadur made a very-important statement. He stated that, on the 26th January when the document which is the subject of the charge under Section 471, Indian Penal Code, was produced before him, the accused stated that he suspected that it might not be a genuine document. The time that the accused had taken from being first asked about this document until the time when it was produced before the Rai Bahadur may suggest that it was not entirely owing to the ill-health or overwork of the accused that he failed to produce the document earlier, but that there were other persons who were consulted in the matter and who advised him as to the statement he should make. However, according to the Rai Bahadur's statement, the accused stated to him, when the document was produced before him, that it might not be a genuine document. Whether deliberately or not - it does not appear--the Rai Bahadur was not asked in re-examination at. what period the accused made that statement, nor were any of the subsequent witnesses who were called to support the case for the prosecution asked anything with reference to this statement at all. So, I take it that the Jury might not have unreasonably assumed that it was the case for the prosecution that the accused, when he produced this document on the 26th January before the Rai Bahadur, stated that he suspected that the document might not be a true and genuine document. If that be so, it is quite clear that the Jury were entitled to come to the conclusion that there had been no user on the 26th January so as to bring the case under Section 471, Indian Penal Code. Whether we should arrive at the same conclusion after hearing the case, it is not material or necessary for us to decide. All that we have got to decide in this reference, is whether the verdict of the Jury on this charge was a reasonable verdict which a body of reasonable men could arrive at, having regard to that portion of the evidence, It seems to me that we cannot say that the verdict of the Jury arrived at on the charge under Section 467 read with Section 471, Indian Penal Code, was one that a body of reasonable men could not come to on that evidence.
4. The other charge was a charge framed against the accused for an offence of having in possession on the 26th January of the present year a forged document, knowing it to be forged, with the intention of using it as genuine. It has been said that, on some earlier date, the accused must have known that this document was not genuine, and that knowing it, he either used it or intended to use it. But the Jury had before them the evidence which they accepted on the charge framed under Section 471, Indian Penal Code, as to what the intention of the accused was on the 26th January, namely, that, so far as the accused evidenced his intention by his outward acts, he had, in fact, stated that the document, in his opinion, was not a genuine document. That seems to me, on the charge framed under Section 474, Indian Penal Code, conclusive that the Jury were entitled to come to the conclusion they arrived at on the evidence. The real truth of the matter is that, if the learned Judge considered that this was a case that ought to be referred to under Section 307, Code of Criminal Procedure, he never ought to have sent up the case in this way by tying the hands of the Crown or of the Court or even the defence by agreeing with the verdict of the Jury on the charges framed under Sections 406 and 477A of the Indian Penal Code. As it is, he has precluded the Court from questioning or going behind that verdict and thus from considering the large body of evidence that was placed before the Jury. In the result, we find it impossible in this case to accept the reference made by the learned Officiating Additional Sessions Judge and we think, having regard to the fact that the accused have been acquitted on the charges framed under Sections 406 and 477A, Indian Penal Code, we ought to accept the verdict of not gulity on the charges framed under section 467 read with Section 471 and Section 474, Indian Penal Code, and direct that the accused be acquitted. Let the accused's bail bond be discharged.
5. I agree.