K.C. Das Gupta, J.
1. The appellant was convicted by a Presidency Magistrate of an offence under Section 420 of the Indian Penal Code and was sentenced to rigorous Imprisonment for six months and to pay a fine of Rs. 300, in default to suffer rigorous imprisonment for three months more. The appeal waspresented to this Court on the 7th of February, 1955. It came up for hearing before this Bench (Guha Ray and Sen JJ.) on the 22nd February, 1955. The prayer made in the memorandum of appeal was in these words :
'In the circumstances the appellant prays that your Lordships will be pleased to admit the appeal, call for the records of the case and after hearing the parties and perusing the records allow the appeal and set aside the order of conviction & sentence and to pass such other order or orders as to your Lordships may seem fit and proper............'
There was also a prayer for bail and stay of realisation of fine pending the hearing of the appeal. The learned Judges, passed an order, the relevant portion of which, for our present purposes, in these words:
'This appeal will be heard only on the ground of sentence.'
Notice was issued on the State in accordance with this order and the records called for end the State has appeared through the learned Deputy Legal Remembrancer. When the appeal was opened before us by Mr. Eanerji, he drew our attention to the fact that though the appeal was directed against both the conviction and the sentence, the order passed was that the appeal would be heard only on the ground of sentence. He submitted, however, that in law, there could be no partial admission of an appeal and partial dismissal, and that it would be proper for us to read the order of this Court :
'This appeal will be heard only on the ground of sentence', as not amounting to a partial dismissal of the appeal but only an order under Section 422 of the Criminal Procedure Code after the Court had decided not to dismiss the appeal summarily. Mr. Banerji has argued that the scheme of the legislation of the Criminal Procedure Code as embodied in Section 421 and 422 clearly shows that the Court to which the appeal is preferred cannot summarily dismiss the appeal partially nor admit the appeal in part. Section 421 provides that on receiving the petition of appeal. the appellate Court should peruse the same, and, 'if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily.' With the other portions of the section, we are not concerned for our present purposes. Section 422 provides that 'if the Appellate Court does not dismiss ths appeal summarily, it shall cause notice to be given to the appellant or his pleader, and to such officer as the State Government may appoint in this behalf, of the time and place at which such appeal will be heard, .. .. ......'
Section 423 provides for the further procedure in the matter. These provisions do not thus provide for a partial dismissal or a partial admission. That this is the correct position in law can no longer be doubted-in view of the decisions of this Court in a number of cases of which mention may be made of the case of Nafar Sheikh V. Emperor, ILR 41 Cal 406 (A). There was also an observation in the decision of the Privy Council in the case of King-Emperor v Dahu Raut . which, in my opinion, should be considered as binding authority that there can be no partial summary dismissal of an appeal. In discussing the correctness of the procedure followed by this Court in reducing sentences passed on certain accused persons who had preferred appeals against their conviction & sentence, without issue of notice on the Crown, their Lordships pointed out that Chap. 31of the Code was a complete Code relating to appeals and referred to the provisions of Sections 421, 422 and 423 of that Chapter. After setting out the relevant portions of Section 421 of the Criminal Procedure Code, their Lordships observed :
'The terms of the section equally exclude the possibility of partial summary dismissal, e. g., in so far as the conviction is appealed against.''
It is therefore, no longer open to question that while an appellate Court may, acting under Section 421, dismiss an appeal in its entirety summarily, it cannot dismiss it in part either as regards conviction or as regards sentence.
2. Mr. Banerji has submitted that, if possible It would be proper to read the order passed by this Court on the 22nd February, 1955 in a way that makes it an order in accordance with law and that the only way to do it is to read it as not amounting to summary dismissal as regards the order of conviction.
3. I find it impossible, however, to read the order passed by this Court in any other way than that while the Judge thought that they were not prepared to dismiss the appeal summarily in accordance with Section 421 and therefore, were directing issue of notice and calling for records under the provisions of Section 422, they were at the same time giving a direction that, at the hearing, the appellant would be restricted to arguments only on the ground of sentence. The question then arises whether, in spite of this, it is open to the Court at a later stage, to allow arguments against the order of conviction passed by a Magistrate. I confess that I have felt some difficulty in the matter partly because perhaps the order of the 22nd February, 1955 was passed by Judges other than ourselves, and was at first inclined to think that after once an order of this nature had been passed, it is not open in this Court, but only to a superior Court to decide that the appeal can be heard as against the order of conviction also.
4. I find, however, that at least on two-occasions this Court, when faced with similar situations, held in favour of the appellant being allowed to argue the question of conviction also. The first of these is the case of ILR 41 Cal 406 : (AIR 1914 Cal 276) (A). What happened there was that the first hearing under Section 421 of the Criminal Procedure Code was by Harrington and Coxe JJ. They passed an order that the appeal was admitted for consideration of the sentence Only. Thereafter the appeal ramp to be heard by the Chief Justice and Sharfuddin J. They being of opinion that, in view of the provisions of Section 422 of the Code of Criminal Procedure, the appeal could not be admitted on a limited ground, directed the scope of the order of admission to be enlarged. Thereafter, the final hearing took place before Mookerjee and Beach-croft JJ., delivering the leading judgment, discussed the legal position arising out of the provisions, of Sections 421 and 422 and said :
'A restrictive order for admission is clearly not contemplated by Section 422 and must be deemed ultra vires....:........''
and. after mentioning that a similar view has been taken by this Court with regard to appeals under the Civil Procedure Code, proceeded to observe :
'Fresh notice of the appeal has been givento the Crown, and the appeal has been arguedbefore us on behalf of the accused and, theCrown.'
The report shows that the appeal was argued notonly on the question of sentence but also on thequestion of conviction, and, in the result, the appeal was allowed and the conviction and sentence set aside and the case was remanded to the lower Court to be retried in accordance with law.
5. The same course was taken by the Court in Causley v. Emperor, ILR 43 Cal 421: (AIR 1916 Cal 341 (1) ) (C). That appeal also was admitted only on the question of sentence, but the defence counsel submitted that he was entitled to be heard on the merits also & this does not appear to have been objected to on behalf of the Crown and in fact, the Court (Chitty and Walmsley JJ.) heard the appeal as against the order of conviction also and thereafter upheld the conviction, but reduced the sentence.
6. A similar course was taken by the Patna High Court in Gaya Singly V King-Emperor, ILR 4 Pat 254 : (AIR 1925 Pat 453) (D), where the appeal having been originally admitted only on the question of sentence, that Court decided to follow the course taken by this Court in Nafar Sheikh's case (A), and directed that fresh notice should be given to the Crown that the appeal was being admitted as regards conviction also. It has to be mentioned that the correctness of this was doubted in a later Patna Case, viz., Kuldip Das v. Emperor, AIR 1933 Pat 38 (E). by Macpherson and Rowland JJ.
7. I am convinced, however, that it will be proper for us, in a matter of this nature, to follow the procedure which found favour in this Court in the cases of ILR 41 Cal 405: (ATR 1914 Cal 276) (A) & ILR 43 Cal 421: (AIR 1916 Cal 341 (1)) (C). We have accordingly decided to hear arguments as regards the order of conviction also. Mr. Roy informed us that he was prepared to argue the appeal on the question of conviction also and did not want further notice to be given to the State.
8. The offence said to have been committed in this case is in connection with the purchase of Dunlop Pillo mattress by the accused. On the 30th April, 1954, the accused first came to the shop of G. P. Gupta & Co.. 41, Dhurrumtolla Street. Calcutta and enquired about five or six Dunlop Pillo mattresses. It is said that he selected five and told the Manager that he would pay the price in cash on delivery of the mattresses on the next day at 12, Park Lane. An order form was written out and signed and the mattresses were sent to 12, Park Lane on the 1st May through the durwan Surai Mahto. When Surai arrived at 12. Park Lane, he asked for cash but the accused offered instead a cheque; When Surai, refused to accept the cheque, the accused had a telephone conversation with the Manager and. on his representation to Surai that the Manager had agreed to accept a cheque, Surai accepted the cheque. The cheque was on the Hindusthan Mercantile Bank, Ltd., and was signed by the accused as R. P. Khanna. The cheque was paid in to G. P. Gupta and Co.'s account in the United Bank of India but when it reached Hindusthan Mercantile Bank for clearing, they refused to honour it and returned the same with an objection slip, the objection being. 'Name of the account required.' The prosecution case is that thereafter attempts were made by the Manager to contact the accused but was unsuccessful and after waiting for two days, the Manager lodged a petition of complaint.
9. The accused pleaded not guilty, his defence being that he made no false representation and did not act dishonestly or fraudulently.
10. That the accused went to the complainant's shop to purchase Dunlop Pillo Mattresses and agreed to. pay in cash on delivery, is clearly proved by the evidence of the complainant himself and is not seriously disputed. It is also not disputed, as stated by Surai Mahto, that when Surai went with the mattresses and asked for cash, the accused offered a cheque and when Surai refused to accept it the accused, after a telephone conversation with the complainant, handed over the cheque which is marked Ex, I to Surai. The evidence of the officer of the Hindusthan Mercantile Bank proves that, when this cheque reached his Bank, payment was refused. The ground for such refusal, as far as one can make out from the evidence, is the absence of a rubber stamp 'Mahabir Agencies' as the account was in the name of Mahabir Agencies.
11. The learned Magistrate appears to have thought that the defence was that the transaction was one of credit. In this, he was clearly mistaken. The learned Deputy Legal Remembrancer was unable to draw our attention to any portion of the record which would show that the accused took a defence that it was a credit transaction. In the charge that was drawn up, nothing was said as to the exact representation which is said to have been false. It appears, however, from the learned Magistrate's judgment that in, his view, the giving of the cheque in payment of the goods to Surai Mahto amounted to a representation by him that he had authority to issue the cheque, that the cheque was a good and valid order for payment of the amount and that the cheque would be paid. The learned Magistrate apparently thinks that when the accused signed the cheque in his own name, without affixing the rubber stamp in the name of 'Mahabir Agencies' he knew that the cheque was not valid and that what he was doing was without authority. The decision really turns on the conclusion from that one single circumstance, namely, the omission of the accused to put the rubber stamp of Mahabir Agencies on the cheque. Admittedly, he is the sole proprietor of Mahabir Agencies. It is not said that Mahabir Agencies had not sufficient money in their account on that date. If the accused deliberately omitted to put the stamp, there would be good reason to think that he was acting dishonestly and that while he was representing that he had authority to issue the cheque, he knew that he had no such authority. It may be mentioned here that it is not said that the accused was not the proper person to operate on Mahabir Agencies account. If the omission to put the sent was accidental, there would be no basis for thinking that he was making really a representation which was false or that he was acting dishonestly; The only circumstance on which reliance is placed by Mr. Roy, on behalf of the State, to show that this was not an accidental omission hut deliberate is the fact that when thereafter the complainant wanted to contact the accused, he could not find him present. That was however, only for two days and it is, in my opinion, unreasonable to draw an inference of guilty knowledge on the part of the accused merely because he could not be contacted for two days. I am unable to agree with the learned Magistrate that the circumstance of the absence of a rubber stamp 'Mahabir Asencies' below the accused's signature in the cheque. Ex. 1, is Inconsistent with the innocence of the accused.
12. I would, therefore, allow the appeal, set aside the order of conviction and sentence andorder that the accused be acquitted. The fine, if paid will be refunded.
Debabrata Mookerjee, J.