1. The petitioner has been convicted of two offences under Section 406, Penal. Code under two separate counts. The 'acts charged against him are that he committed criminal breach of trust in respect of 3 tolas and 5 annas of gold on 5-2-1951 and that similarly he committed the same offence In respect of a further quantity of 26 tolas and 9 annas of gold on 2-3-1951. The learned Magistrate has accepted the prosecution case and sentenced the petitioner to rigorous imprisonment for 4 months and 2 months respectively -- the sentences to run concurrently.
2. The proceedings were commenced on the complaint of one Rashbehari Ray who alleged that he was a goldsmith, carrying on business at Cuttack and that he used to get the articles of his trade manufactured by workmen in Calcutta of whom the petitioner was one. The petitioner is also related to the complainant, being his nephew. The complainant's case further was that he had entrusted 29 tolas 14 annas and 3 pies of gold on 2-3-1951, and that the ornaments manufactured with that gold were due to be delivered in about a fortnight's time. When, however, the complainant demanded delivery of the ornaments he was put off from time to time and ultimately, on 28-3-1951, the petitioner denied having received any gold from the complainant at any time at all. This story was slightly varied in the course of the evidence when the petitioner stated that 29 bharies 14 annas and 3 pies of gold had not been entrusted all at the same time but that out of the total quantity, 3 tolas and 5 annas had been entrusted on an earlier occasion, namely, on 5-2-1951.
3. In support of his case the petitioner (sic) relied upon a receipt alleged to have been granted by the petitioner at the time the gold had been delivered to him. There was some oral evidence as well, particularly, of a brother-in-law of the complainant who carries on the profession of a Dentist. The learned Magistrate relied principally upon the receipt which is Ex. 1 in the case and which was alleged by the prosecution to bear the signature of the petitioner.
4. It was contended on behalf of the petitioner that the learned Magistrate had erred in law in relying upon Ex. 1 at all, inasmuch as it was not admissible in evidence. In order to appreciate this argument of the petitioner, it is necessary to remember that Ex. 1 is merely a carbon copy of the original receipt which is said to have been written out by the complainant himself but signed by the petitioner. It was contended that on the prosecution's own case, Ex. 1 was a copy and it could not be admitted in evidence unless the rules regarding the user of the secondary evidence were strictly complied with. In our opinion this contention is well-founded.
5. As I have already slated, what was sought to be proved out of Ex. 1 was the signature which the petitioner was alleged to have affixed to it. It is, however, not the original signature but a copy appearing on a carbon copy. This carbon copy of the signature may be a piece of secondary evidence within the meaning of Section 63(2), Evidence Act, being a copy made by a mechanical process which ensures its correctness, but simply because it is secondary evidence of a proper form, it does not follow that the prosecution was entitled to adduce it in evidence all at once. According to the prosecution, the original was in the possession of the petitioner and the case, therefore, came under Section 65(8), Evidence Act which speaks of documents in the possession of the party against whom they are sought to be used. But in order that secondary evidence of such documents may be given, it is essential that the procedure laid down in Section 66 of the Act should be strictly complied with.
The procedure there prescribed is that the party desiring to make use of secondary evidence must, in the first instance, serve a notice upon the party in whose possession the original may be, requiring him to produce the original and it is only when such notice is not complied with that the right to give secondary evidence arises. There are certain exceptions to the rule laid down in Section 66, but it is perfectly clear that none of them applies to the present case. It is equally clear from the records that DO notice of any kind was ever served on the petitioner. In those circumstances, it follows that the carbon copy of the signature, appearing on Ex. 1, never became admissible in law and in so far as the learned Magistrate's conclusion is based upon Ex. 1, it is plainly erroneous.
6. It appears to me further that even if the question be regarded as a pure question of fact, the learned Magistrate clearly misdirected himself in arriving at the conclusion that he did. The complainant came to the Court with the somewhat strange story that he entrusted to the petitioner a quantify of gold of the value of about Rs. 3000/- and took care to obtain a receipt from him, but that, at the same time, he allowed the petitioner, who was the grantor of the receipt, to keep the original with him and was himself content to receive only a copy. The manifestly unusual character of a transaction of that kind was commented on by the defence, but the learned Magistrate paid no attention whatever to it. He simply referred to the contention advanced on behalf of the accused that the case put forward by the complainant bore patent marks of artificiality but beyond making a reference to the contention, he did not consider it necessary to deal with it.
It was also contended before the learned Magistrate that if the signature appearing on Ex. 1 was to be foisted upon the petitioner, it could be done only if a proper comparison of that signature with the admitted signature of the petitioner was possible. No such comparison, however, was possible in the present case inasmuch as the disputed signature was only a carbon copy. It was argued that no opinion about pen pressure or pen stroke or alignment could properly be formed upon a carbon copy. The learned Magistrate, dealing with that argument, simply observed that be did not know if there was any authority for that proposition. If he did not know, he might have referred to some authoritative work like Osborn or Brewester and if he did so, he would have found that carbon copies, particularly copies made on carbon paper ordinarily used in this country, could not generally be relied upon for purposes of comparison, because the impression made upon such carbon paper was generally irregular and blotched.
Further, the deposits on the carbon paper were generally wiped off when the paper was folded with the result that all traces of the distinctive characteristics of the writings on it became blurred. A further point which, it seems to us, escaped the notice of the learned Magistrate is that, according to the complainant, the petitioner signed his name on the original of Ex. 1 with a fountain pen. That again, is a feature of the prosecution case which appears to me to be somewhat strange. It is but ordinary experience that if anybody wants a particular document to be duplicated or triplicated with the aid of carbon paper, he writes the original with a pencil in order that a necessary amount of pressure may be put upon the original. It is hardly that anybody ever will be found writing the original with a fountain pen, if the intention is that some copies will have to be made.
The learned Magistrate again did not examine the characteristic features of the disputed signature and those of the admitted signatures of the petitioner, nor had he any expert assistance. He simply proceeded on the visual similarity of the disputed signature with the signature appearing on a bail bond. He overlooked altogether the fact that the disputed signature before him was a carbon copy which afforded a very special opportunity for tracing put some original signature which might be in the possession of the forger. The visual similarity by itself, therefore, established nothing. But it is not necessary to pursue the question as a question of fact any further, as I have already pointed out that the signature appearing on Ex. 1 was rot admissible all.
7. The question, we have next to consider, is whether excluding Ex. 1, there was sufficient other evidence in the case which might by itself support the conviction. In my opinion there is none. There is only the very general and inconclusive evidence given by the Dentist brother-in-law on which no conclusion can be properly based.
8. The result, therefore, is that the finding recorded by the learned Magistrate is based on no legal evidence or at least not legally sufficient evidence.
9. For the reasons given above, this Rule must be and is made absolute. The conviction of and the sentence passed upon the petitioner are set aside and he is acquitted.
10. The petitioner will now be discharged from his bail bond.
11. I agree.