1. Of the two appellants Ali Hussain, appellant 1, has been convicted under Section 420, I.P. C, and sentenced to detention till the rising of the Court and to a fine of Rs. 250. Appellant 2 Saiyed Din has been convicted under Sections 420 and 114, I.P.C., and sentenced to detention till the rising of the Court and to a fine of Rs. 60. The allegations on which the two appellants were charged were briefly these: The complainant Amarendra Nath Dhar is a clerk in the service of a firm styled as D.L. Mitter and Company. He is a respectable young man fond of betting at the races and takes the risk of betting outside the rings with the possible consequence of being charged with gambling. On one Saturday about the middle of August last he attended the races and did some betting outside the enclosure with unlicensed bookmakers. He lost some money and was coming home, and when he was near the Plassey Gate on the Maidan, the accused Ali Hussain met him and saying that he had seen him betting with unlicensed bookmakers threatened to take him to the thana. Ali Hussain had at the time a khaki shirt and a round brush cap on his head. Ali Hussain told him that he would not take the complainant to the thana if the complainant would spend Rs. 100. On the intervention of appellant 2, Saiyed Din who happened to arrive at the place at the time, the amount was subsequently reduced to Rs. 40.
2. The complainant then left the place and when accused 1 came to the house of the complainant the complainant had to pay him Rs. 40 as arranged before. A few days later the two accused came to the house of the complainant again and accused 1 told him that unless he would pay another Rs. 15 to accused 2, accused 2 would report the matter to the uparwalas and that both of them might get into trouble. The complainant thereupon asked them to come and meet him at the Esplanade near the tramway shed. On the following Saturday the complainant however went and reported the whole matter to a Sub-Inspector, Bhakti Bhusan Roy by name, and it was arranged that the complainant when he would meet the two accused at the Esplanade would take them to the Wellington Square and would make some payment to the accused persons when the police could remain somewhere near by hiding. As arranged the two accused came and met the complainant at the Esplanade on the appointed Saturday and according to that arrangement the three persons went to Wellington Square and when a five rupee note which has been previously marked was handed over to accused 1 the appellants were arrested by the police.
3. The case for the defence was that the complainant owed Rs. 26 to Ali Hussain, that Ali Hussain made several demands for payment of the money; that there was an altercation in consequence and that when the complainant after taking the accused to Goltolao (Wellington Square) was giving to Ali Husain a five rupee note the police arrested them. According to the defence of Ali Hussain, Saiyed Din who was to get Rs. 5 from Ali Hussain accompanied him to Goltalao. On behalf of the defence one witness was examined in the case. The learned Magistrate however disbelieved the defence story and believing the case for the prosecution convicted and sentenced the two accused persons in the way as stated before.
4. On behalf of the appellants a number of points were raised before us. In the first place it was said that there had been a misjoinder of charges and that the whole trial has been vitiated thereby. It was said that the first day's transaction, namely, payment of Rs. 40. had no connexion whatsoever with the payment of Rs. 5 at Goltalao and that the two incidents could not be said to be parts of one and the same transaction. This contention does not seem to me to be well founded. To determine whether or not a series of acts would form parts of the same transaction the most important points to be considered are whether there was a common purpose and design and continuity of action. In the present case blackmailing was evidently the common purpose and the second realization was in continuation of the action in the first and both, in my opinion, were in fulfillment of that common design of blackmailing design originating from the discovery of the complainant betting outside the enclosure. It is to be observed moreover in this connexion that by a joint trial on charges relating to the two incidents the accused do not appear to have been prejudiced in any way. The whole case for the prosecution was disclosed from the very beginning and the accused fully understood that case and were given full opportunity to meet it.
5. The second point taken on behalf of the appellants was that the conviction for cheating is unsustainable inasmuch as there was no false representation and therefore no deception. There may not have been any words used to tell the complainant that accused 1 was a police officer. But from the facts that accused 1 wore a khaki shirt and the attend to take the complainant to the thana there could not, in my judgment, be any manner of doubt that the accused gave the complainant to understand that he was a police officer which he was not and that he had the authority to take him to the thana which authority he did not possess and this, in my opinion, did amount to deception.
6. Then it was urged on behalf of the appellants that the conviction was bad inasmuch as it rested entirely on the uncorroborated evidence of the complainant himself. But in this connexion it is to be observed that the complainant was before the trying Magistrate and that the Magistrate had the full opportunity to notice his demeanour and to observe the way in which he deposed. The Magistrate appears to have been impressed by the convincing manner in which the witness gave his deposition. It was said that the story which the complainant gave was not a probable one because the complainant was not an uneducated rustic who might easily be taken in by such representations as the accused are alleged to have done. But persons who are not uneducated rustics do sometimes become victims to swindlers and blackmailers. It was said that it was not very probable that the complainant should submit to the accused when it is remembered that a conviction for gambling could not be visited with any thing more than a few rupees fine. Next it is to be remembered that the complainant was in the employ of a firm and a conviction for gambling might entail losing his job in that firm.
7. Mr. Roy Chowdhury next took exception to the admission of some evidence in the case which according to him was inadmissible. The evidence to which he took exception was a statement of Babu Bhakti Roy, the Sub-Inspector of Police, to the effect that accused I had told him that when he had detected the complainant in committing sodomy in the racecourse the complainant offered to give him baksis if he would let him go and he did let him go. It was said that this evidence amounted to a confessional statement made to a police officer and was therefore inadmissible under Section 25, Evidence Act. Admitting that the statement was a confessional statement made to a police officer the learned Magistrate does not appear to have used it as a confession. What it was used for by him in the case was that the story which the accused gave at the time of the trial had not been given to the police officer. As to this there was no dispute. The first accused in his statement recorded under Section 342, Criminal P.C., stated that he had made no statement before the daroga. This contention must therefore fail.
8. Lastly, it was contended by Mr. Roy Chowdhury that the sentence inflicted on the two accused persons in the present ease has been unduly severe and that in case we should maintain the order of conviction in its entirety we should direct that the fine be paid by instalments. The sentences inflicted do not appear to me to be excessive and I am not aware of any provision except Section 388, Criminal P.C., by which a fine can be ordered to be realised by instalments. But Section 388 has no application to the present case inasmuch as the sentence in the present case was not a sentence of fine only. As stated in the beginning both the accused had been sentenced to rigorous imprisonment for a day besides the sentence of fine.
9. The result is that the appeal is dismissed. The fine will now be realized.
10. I agree.