1. The appellant Gokul Khatik has bean convicted by Mr. J.N. Sen, Honorary Presidency Magistrate under Section 420, I.P.C., and sentenced to pay a fine of Rs. 500, in default to undergo rigorous imprisonment for two months and a further order has been made directing the payment of Rs. 400 out of the fine, If realised, to the complainant as compensation. The facts of the case, shortly stated, are these: that about two years ago the complainant pledged certain gold and silver ornaments with the accused for Rs. 350, that on the 2nd January, 1924 at about 9-50 A.M., she went to the place of the accused accompanied by a number of witnesses and gave him Rs. 350 being the principal with Rs. 120 as interest due on it and wanted the ornaments back, that the accused asked the complainant to wait for sometime and promised to return the ornaments after bringing them from a person who was alleged to have kept them that the complainant waited till about 5 P.M., in the evening but the accused did not return, that she thereafter came away and on the next morning at about 10 A.M., she again went to the house of the accused accompanied by some witnesses but could not find him. The defence of the accused as it appears from the trend of the cross-examination of the prosecution witnesses and also from the statement which he made in Court was to the effect that ha did not receive any money, as alleged on behalf of the complainant. The accused however, after process was issued by the Court, produced the articles before the Court and also stated that the complainant had not paid him any money. Upon the allegations set forth above, the learned Magistrate framed two charges in the alternative against the accused one under Section 406, I.P.C., and other under Section 420, I.P.C. The charge under Section 406 was to the effect that on 2nd January, 1924 the accused committed criminal breach of trust in respect of several gold and silver ornaments pledged with him by the complainant and thereby committed the said offence. The charge under Section 420, I.P.C., was to the effect that on the 2nd January, 1924, the accused dishonestly induced the complainant to part with several gold and silver ornaments on false representation and thereby committed the said offence. It will be clear on an examination of this charge under Section 420, I.P.C., that it does not correctly set out the facts of the case for the prosecution upon which it is founded; for it was not the case of the complainant that she had been induced to part with her ornaments on any false representation. The real charge under Section 420, I.P.C., which could be framed upon the case as presented on behalf of the prosecution was that the accused dishonestly induced the complainant to part with the sum of Rs. 470, dishonestly concealing from the complainant the fact that he never intended to return the ornaments for the return of which the amount was being paid. This defect in the framing of the charge though a material one, does not appear to have prejudiced the accused in any way for it seems from the answer which the accused gave to the Court when examined under the provisions of Section 342, Cr. P.C., that he understood exactly what the case against him was. It also appears from the evidence that was adduced on behalf of the defence that it was clear to the accused what case he had to meet.
2. The judgment of the learned Honorary Magistrate which I have perused which care appears to me to be not very satisfactory in consequence of certain errors into which he seems to have fallen. In the first place, he says that all the witnesses examined on behalf of the prosecution are disinterested and independent persona, forgetting that at least one of the witnesses, namely, P.W. No. 5, is a daughter of the complainant, prosecution witness No. 1. There is also a defect in the consideration of the evidence that was adduced on behalf of the defence to be found in the judgment of the Honorary Magistrate inasmuch as he states that it was the duty of the accused to call the doctor whose coachman has been examined as the D. W. No. 1 and he was not prepared to rely upon the evidence of the coachman because his master was not examined. There are other defects in the judgment of the learned Honorary Magistrate which I need not specifically, refer to. There is also the fact that evidence has been let in with regard to a previous act of fraud which is alleged to have been committed by the accused person. I mean the evidence of P.W. 6, who speaks to the fact that on a particular occasion he was cheated by the accused in respect of a certain sum of money. That evidence to my mind is clearly inadmissible in law and it cannot be brought in with the aid either of Section 14 or Section 15 of the Indian Evidence Act. This was a case in which the question of the guilt or innocence, of the accused depended upon proof of actual facts and not upon the state of the accused's mind. Therefore the evidence as to any previous act of fraud was not admissible under any provision of the law. That evidence therefore has got to be excluded in considering whether the case against the accused has been properly and legally proved.
3. [His Lordship then proceeded to discuss the evidence in the case and in the course of his remarks, observed as follows:]
4. It is true that defence witness No. 4 has been examined for the purpose of proving an entry made in the thana diary at the instance of the complainant which is to the effect that the charge which the complainant made at the thana on the 3rd January at about 6 p. M., was only for detaining her silver ornaments. It is urged that in this entry there is no mention of the fact that money was paid by the complainant to the accused. Regard, however, being had to the way in which these entries are made, I am not prepared to infer from this omission that the story with regard to this payment was a subsequent invention.
5. On a consideration therefore of the whole evidence in the case and the facts, circumstances and the probabilities, I have come to the conclusion that the conviction of the accused is correct and that the sentence passed upon him is not severe; and I accordingly dismiss the appeal.