N.K. Sen, J.
1. This appeal is under Section 417 (3) of the Code of Criminal Procedure and is directed against an order of acquittal passed by Sri K. D. Banerjee, Assistant Sessions Judge, Howrah in agreement with the unanimous verdict of not guilty by the Jury.
2. The respondent Lalit Kumar Sen Gupta was tried by the Assistant Sessions Judge Howrah and a Jury on charges under Sections 467 and 419 of the Indian Penal Code. The learned Assistant Sessions Judge having agreed with the unanimous verdict of not guilty returned by the Jury accepted the same and acquitted the respondent.
3. The case against the respondent was that a sum of Rs. 102/2/- from the Provident Fund Money was due from Sri Mahadeo Jute Mill, Bally to P.W. 2 Kshetrabashi Panda who was working there and who had resigned from service. The respondent who was stated to be a neighbour offered his services to Kshetrabashi for withdrawal of the said money and for that purpose wrote out several applications to the Mill authorities whereon Kshetrabashi put his thumb impressions. On these applications the address of Kshetrabashi was stated as care of Lalit Kumar Sen Gupta, the respondent. On receipt of these applications the Mill Authorities remitted a sum of Rs. 100/8/- by money order after deducting the money order commission to Kshetrabashi. The Postal peon, P. W. 1 Niranjan Mondal came to deliver the money order at the house of the respondent at 158, Dewangazi Road, Bally. At that time the respondent set up another man for Kshetrabashi, caused his left thumb impression to be affixed on the money order acknowledgement and on the money order paid voucher and himself made an endorsement 'L.T.I, of Kshetrabashi' over the signature 'L. K. Sen Gupta' as witness to the payment on the money order acknowledgement as well as on the money order paid voucher. Kshetrabashi, however, was in the meantime approaching the respondent from time to time enquiring about his provident fund money but the respondent on every occasion gave out that it had not been received. Ultimately Kshetrabashi approached the officers of the said Jute Mill and learnt that the money had been sent long ago. Kshetrabashi then approached the respondent who denied having received any money order remittance. Kshetrabashi filed a petition of complaint before the Sub-Divisional Officer, Howrah against the respondent which was dismissed. A petition of revival of the said complaint was also rejected. Thereafter a fresh petition of complaint was filed which the Sub-Divisional Officer, Howrah sent to the Police for investigation. This investigation resulted in a charge sheet and the present trial before the learned Assistant Sessions Judge and a Jury
4. The charge under Section 467 of the Indian Penal Code was for forging a money order receipt purporting to be an acknowledgement for payment of the money by making another person falsely signing it as Kshetrabashi Panda and the respondent himself certifying the identity of the fictitious person being a witness to the payment. The other charge under Section 419 of the Indian Penal Code was for cheating by personation by dishonestly inducing the peon to deliver the money intended for Kshetrabashi Panda to that fictitious person set up by him.
5. The defence of the respondent was that he did not know Kshetrabashi and that a man named Jadu introduced another man as Kshetrabashi to him and that man wrote out on behalf of Kshetrabashi an application to the Mill authorities for withdrawal of the Provident Fund Money. That man who was not known to the respondent represented himself as Kshetrabashi to the Postal peon and received payment of the money order by putting left thumb impression on the money order acknowledgement and the money order paid voucher whilst the respondent in bona fide belief that he was the payee Kshetrabashi made the endorsement 'L.T.I, of Kshetrabashi' over his signature on the money order acknowledgement and the money order paid voucher. Later however when he discovered this fraud he managed to recover the value of the money order from that man and paid it to Kshetrabashi. Subsequently, on demand by the postal authorities he deposited a sum of Rs. 100/8/- being the value of the said money order with the Post Office at Bally on 21-2-55 even before the original petition of complaint 'Ex. 25' was dismissed on the 5th of September, 1955 and long before the present petition of complaint (Ex. 21) was filed.
6. Mr. Burman, appearing on behalf of the State, has supported the defence in this case and has raised three preliminary points which may be enumerated as follows : --
7. The first point taken is that the appeal is not in order. He points out from the paper book that only one application for special leave under Section 417 (3) of the Code has been filed and in the prayer portion of it he has incorporated a prayer for admission of the appeal instead of filing a separate petition of appeal as required under the Code. It is true that a separate petition of appeal has to be filed which can only be considered after a special leave is granted under Section 417 (3) of the Code. It appears however that there is a separate petition of appeal on record which unfortunately has not been printed in the paper book. This point therefore, fails.
8. The second point raised, is that the respondent was tried on two charges, one being under Section 467 of the Indian Penal Code. It is contended that if this appeal be allowed a substantive sentence of imprisonment is imperative which a Judge sitting singly has no jurisdiction to impose. Having considered the point, I am of the view that the question will arise only at the conclusion of the hearing of the appeal. If the court is of the opinion that the appeal should be dismissed or if there should be a retrial the point would not arise. It will however arise only if the court would finally decide to allow the appeal and to convict the respondent of the charge and in which case this appeal would be laid before a Bench competent to deal with the matter. Bearing this in mind, I proposed to hear the appeal.
9. The last preliminary point urged by Mr. Burman is that the State having prosecuted this case there is no right of appeal by a complainant. This point however is based on a misapprehension. Sub-section (3) of Section 417 of the Code, empowers a complainant to file an application for special leave to appeal from an order of acquittal in a case 'instituted upon a complaint'. The appellant in the present case filed a petition of complaint on the 27th September, 1955 which is Ex. 21 in the case.Upon this complaint the learned Magistrate, ordered this petition of complaint to be sent to the Officer-in-charge, Bally P. S. for necessary action. The investigation by the police resulted in a charge sheet. It can, therefore, be safely concluded that the case was 'instituted upon a complaint'. This point, therefore, does not impress me and must be negatived.
10. Mr. Sudhangshu Sekhar Mukherjee, appearing on behalf of the appellant has taken me through the summing up of the learned Judge. He argues that although the summing up did not suffer from any positive mis-directions, but nonetheless it was vitiated on account of non-directions on material facts, which according to Mr. Mukherjee, has led to an erroneous verdict. I have carefully gone through the learned Judge's address to the Jury and therein what I find is that he placed the substance of the evidence in a substantially correct manner. If the charge suffered from anything, it has suffered from a slight leaning towards the prosecution. The material misdirections as pointed out by Mr. Mukherjee were omissions to place certain facts before the jury. Non-direction on facts would not ordinarily amount to any misdirection that would lead to a perverse verdict unless the facts are of such a character that if properly directed those facts would have turned the scale. The facts that Mr. Mukherjee complains were not placed before the jury were inter alia that the complainant Kshetra Bashi knew the respondent since he began to work in the mill and that both of them resided in houses close to each other, and that a sum of Rs. 10/- was paid to the respondent for writing out the petition. Mr. Mukherjee then argues that the learned Judge should have pointed out to the Jury that even if the statement of the respondent was believed to the effect that he had refunded the money to the Post Office such a fact would be of little avail to him inasmuch as there would be at least a temporary misappropriation of the money. Lastly, he argues that Ex. A, the statement of the respondent made to the Postal Inspector would not help the accused at all and the true import of this Ext. A was not properly placed before the Jury.
11. So far as the statement of the respondent made in Ex. A to the effect that the endorsement on the signature 'L. T. I. of Kshetra Bashi, Sri L. K. Sen Gupta' (Ex. 2/A) on the money order paid voucher is in his writing, that the left thumb impression of the applicant on the letter dated 27-10-1954, (Ex. 17/B) is that of a false person and that the L. T. I. of the payee (Ex. 1/4) on the said money order paid voucher is that of a false person who is other than the real payee', this finds clear corroboration from the opinion of the expert P. W. 11 to the same effect. If that be so, a major part of the defence case is true. There cannot be any doubt that the respondent had deposited a sum of Rs. 100/8/- in the Bally Post Office on 21-2-1955 and this statement made by the respondent in Ex. A finds ample corroboration' from the testimony of the Postal Inspector Ashutosh Sirkar P. W. 3. After having placed Ex. A to the jury the learned Judge directed them to consider whether the other part of the statement in Ex. A is true or false. So far as non-directions on facts are concerned, I am of the view that those facts even if properly placed could not have affected the verdict of the jury, the facts being in my judgment of extremely minor character. Nonetheless I have been taken through the evidence by Mr. Mukherjee and it is to be noted that the evidence of P.W. 2 and P. W. 16 namely the complainant Kshetrabashi and Jadu Bera is contradicted by the opinion of the expert that the left thumb impression borne on the first application Ex. 17/b dated 27-10-1954 is not the left thumb impression of the appellant Kshetrabashi. The evidence of P. W. 16 as to the paper on which the first application was written is belied by the application itself. This witness Jadu was not examined by the police. So far as the statement of the appellant himself is concerned, it appears from the evidence of the investigating officer P. W. 17 that he made a different statement to him as regards whether Natabar accompanied to the house of the respondent. Natabar is P. W. 7. He also made a statement before the investigating officer which was not what he stated in court. After having pointed out these discrepancies the learned Judge asked the Jury to consider whether or not in view of the discrepancies and omissions they would believe the present testimony in court of P. Ws. 2 and 7, and if so, to what extent. The jury was further directed to consider the discrepancies and contradictions touching the alleged previous meetings between the appellant and the respondent and give such weight, if any, as they considered proper to the said discrepancies and contradictions in coming to a conclusion as to whether the respondent had any opportunity to know the appellant from before the alleged occurrence of the payment of the money order to the wrong person,
12. It was further pointed out that the appellant had stated that he could not say if Jadu got applications written by the respondent and with his own thumb impression got them posted. There is evidence to suggest that the appellant Natabar and Jadu approached the respondent and got the applications written by him on different dates and by this process the appellant came to be known to the respondent.
13. I have given my anxious consideration to the facts of the case and in view of the absence of any mis-directions and any non-directions on material facts, I find it impossible to say that the unanimous verdict of the jury was manifestly perverse or erroneous, so as to justify an interference by this court. The evidence of the appellant and of his witnesses do not inspire much confidence and surely that evidence failed to inspire any confidence in the minds of the jury. In that view I do not find any sufficient materials for upsetting the verdict of the Jury.
14. In the result, the appeal is dismissed.