John Woodroffe, J.
1. The accused has been convicted under Section 406 of the Indian Penal Code and fined Rs. 200. A Rule was obtained by him, which was beard by Mr. Justice Teunon and Mr. Justice Beachcroft. Mr. JusticeTeunon was of opinion that the conviction of the petitioner should be set aside and the fine, if paid, should be refunded. Mr. Justice Beachcroft was of opinion that the Magistrate bad reason for coming to his findings and on the evidence he held that there was no sufficient ground for supposing that the Magistrate came to anything but a right conclusion, and Mr. Justice Beachcroft was, therefore, of opinion that the Rule should be discharged.
2. The learned Judges composing the Bench which heard this case having differed in opinion, it has been referred to me.
3. The issue is whether or not Rs. 140, the subject of the charge, were paid to the accused for himself an account of his brokerage or were paid to the accused for payment by him to the firm of Messrs. Seo Narain Ram Narain, That the money was received by him is not in dispute. The question which is in dispute is the purpose for which that money was paid. It does not appear to me to be disputed that brokerage was not paid at the time of the contract but afterwards. And the case of the accused is this. That on the date on which this sum of money was made over to him, namely the 18th of April, there was then due and lowing to him money on account of his brokerage. It is true that in the examination-in-chief of Beni Madhab Banerjee, be says that no money was then due from us to the accused. On the other band the accused owed some money to us on another account.' If this evidence refers to the 18th April, it appears to be in conflict with the statement made in the cross-examination. I say it appears to be, because the prosecution have not appeared at the hearing of this matter before me. Therefore, I have not had the advantage of knowing what explanation, if any, they have to make. But in cross-examination there is this statement, 'no brokerage was paid to the accused after Augrahayan last', that is, November 1915. Rupees 31-1-9 was due to the accused for brokerage up to the end of Chait last, that is the middle of April 1916. Rs. 47-15-6 was due for subsequent brokerage; up to 18th April the amount due for brokerage was Rs. 34-1-3. The evidence as it stands is not intelligible, because it does not appear clearly whether the sum of Rs. 47-15 6 is to be taken as additional to the sum of Rs. 31-1-9, nor how the figure of Rs. 34-1-3 is arrived at. From that evidence, however, it would appear that something was at the date in question due and payable by Messrs. Kundu & Co. to the accused. Another partner says that the account has not yet been settled. Now, the accused says that there was some money due and owing to him, in fact the sum of Rs. 53 after giving credit for the sum of Rs. 140, and he has instituted a suit in the Small Cause Court to recover the sum. Something apparently being due to the accused there are circumstances in this case which support the petitioner's story that the money received by him was on this account and not for, payment to Seo Narain-Ram Narain. Notably the fact of the howlat entry as also the circumstance that the entry merely shows an advance without giving particulars, though it is said, that in other instances in the account books the purpose of the account was noted. There are some other circumstances which are fully dealt with in the judgments of the learned Judges and I need not refer to them here. Mr. Justice Beachcroft in his judgment states that it is impossible to say that the Crown could not have been represented had it had clear notice that the findings of fact would be assailed. Whatever may be the state of facts before the case was heard by the learned Judges, it is sufficient here to note that at this hearing before me the Crown has not appeared although it bad the opportunity to be represented. It cannot, I think, be said that the case is one which is free from doubt and I, therefore, think that in accordance with the ordinary rule, the benefit of that doubt should be given to the accused.
4. I accordingly agree with Mr. Justice Teunon and I am of opinion that the conviction of the petitioner should be set aside and the fine, if paid, should be refunded.
5. In this case the petitioner Duli Chand Dalai has been convicted under Section 406, Indian Penal Code, and sentenced to pay a fine of Rs. 200. The present Rule obtained at his instance is directed against this conviction and sentence and is what is known as an 'open' Rule at the bearing of which all questions arising, whether of fact or of law, may be urged.
6. The petitioner, it appears, is a broker and for some two years prior to the transactions now in question had been employed in that capacity for the purchase of grain by a firm known as Kundu & Co. He was also, it appears, entrusted by the vendor firms with the realisation of the moneys due to them.
7. Sometime in the beginning of March 1915, acting as a broker on behalf of Kundu & Co., the petitioner bought 400 maunds of grain from a firm, named Seo Narain-Ram Narain. The sum due to that firm was thus Rs. 1,281-13-6, and a sum of Rs. 6-7-0 was due as brokerage to the petitioner.
8. The munib gomasta of the firm of Seo Narain, which had had dealings with the petitioner for some fifteen months, has proved that on the 11th or 12th of March they handed over their bill to the petitioner for realisation and that in the beginning of May he returned the bill saying that he had been unable to collect the money.
9. The case of the complainant firm then is that on the 18th of April on the representation of the petitioner that the 6rm of Seo Narain required money for the purchase of gunny bags, they handed to the petitioner a sum of Rs. 140 for the express purpose of making a part payment to Seo Narain, and that he dishonestly appropriated this sum to himself. Their complaint, based on this case, was lodged on the 21st of June and the petitioner appeared in Court to answer to that complaint on the 30th of the same month.
10. The case of the petitioner is that the sum of Rs. 140 was given to him as a personal advance, that is, a payment on account in respect of brokerage due to him, and that these proceedings have been instituted by reason of disputes over a loss of Rs. 440 odd Sustained by Kundu & Co. over certain transactions in barley, and also by reason of their having lost their contract with the Corporation to Messrs. Hart & Co. by whom petitioner's cousin one Behari is, employed.
11. In a Small Cause Court suit instituted on the 10th of July and apparently still pending petitioner gives credit for the Rs. 140 and claims a sum of Rs. 53 as brokerage still due.
12. Two of the partners in the firm of Kundu & Co., also their cashier and a broker or employee named Satkari Rai have deposed to the payment of Rs. 140 and its purpose. The last named, whose memory was refreshed by the discussion that followed upon the receipt by Kundu & Co. of Seo Narain's Pleader's letter of 23rd May, is obviously, a false witness. Neither of the partners in their depositions suggests that he was present.
13. It is next clear that there is a dispute between Kundu & Co. and the petitioner over transactions in barley which took place in January to March 1915. These transactions have in fact resulted in a loss of over Rs. 400 and while the firm say that the barley was bought by the petitioner on his own account, though with the firm's money, his case is that these were ordinary brokerage transactions, that the loss is theirs and that brokerage is due to him. In respect of these transactions the partners in Kundu & Co. have contradicted one another. Beni Madhab, cross-examined on 17th and 24 h August, says that the accounts have not been adjusted and further in respect of at least one of these transactions speaks of accused as a 'broker'. On the other band, Bistu Narain cross examined in September says that the barley accounts were settled and that, the petitioner agreed to pay, though there is nothing under the petitioner's hand to show this or to fix him with liability for the loss. It is only by excluding these transactions that they can say that they owe nothing to the petitioner.
14. It has then been suggested, as strengthening the case for the prosecution, that on receipt of Seo Narain's letter of 1st June complainant searched for the petitioner and came into Court (2 st June) because they could not find him.
15. But petitioner, it appears, had gone to his country on the 13th of May, and that be had informed both Knndu & Co. and the firm of Seo Narain of his intention. His failure to present himself at Kundu's on his return some fifteen days later is consistent with either the defence or the prosecution. In fact no real search was made for him. Bistu Narain admits that the petitioner had informed him of the English firms for whom the petitioner worked and yet at the place of business of no such firm was inquiry made.
16. Again the complainant admits that this is the first and only instance of a part payment to a seller. In the present instance the goods had been delivered, and the 2nd partner Bistu Narain says that bills are usually presented ten or twelve days after delivery. The bill had in fact, been with the petitioner from the 12th of March, and it seems strange that after such an interval the partners Kundu & Co. should suppose that the firm of Seo Narain would ask for only part payment.
17. Further Seo Narain-Ram Narain are an old and well to-do from. Kundu & Co. had bad dealings with the firm for ten months and though the complainant and his partner say so, they could not have been ignorant of the standing of Seo Narain. It is not likely that, such a firm would ask for a small sum such as Rs. 140 to enable them to take delivery of a few gunny bags and the absurdity of such a statement, if made, would have been patent.
18. Smaller matters such as the witness Bistu Narain's obscure reference to information received from one of the proprietors of Seo Narain apparently about the beginning of May, and tbe complainant's allegation that there was short delivery of about a maund need only be referred to. It is perhaps somewhat significant that the munib gomasta of Seo Narair. will not distinctly deny that this shortage was imentioned to him by the petitioner as one of the reasons why he had failed to realise the money due.
19. Lastly the entry in the imprest account gives no particular of the purpose for which the sum of Rs. 140 was handed to the petitioner while he by writing the words 'howlat lya' distinctly takes it as an advance or part payment, on his own account. This too is the explanation he gave when questioned by, the munib gomasta on his return from, his country. The entry supports the defence and appears to be inconsistent with the prosecution.
20. For these reasons to my mind the probabilities are against the prosecution and in favour of the defence, and it seems to me that, this is a case in which the Honorary Magistrate has overlooked the cardinal maxim that where reasonable doubt exists the benefit of that doubt should be given to the accused.
21. I am, therefore, of opinion that the conviction of the petitioner should be set aside and that the fine, if paid, should be refunded.
22. The petitioner was a broker of the firm of Messrs. Kundu & Co., which carries on a general business as merchants, agents and contractors, and deals amongst other things in grain. In March last the petitioner purchased grain to the value of over Rs. 1,200 on behalf of Messrs. Kundu & Co. from the firm of Seo Narain-Ram Narain. On the 18th April a sum of Rs. 140 was paid to the petitioner by one of the members of the firm of Messrs. Kundu & Co An entry of the payment was made in the suspense account of the firm and against that entry the accused wrote the words 'howlat lya' and signed it. It is alleged on behalf of the prosecution that the payment was made to the petitioner for payment to the firm of Seo Narain-Ram Narain against the price of the grain purchased in March, as the petitioner told his employees that the firm of Seo Narain Ram Narain wanted money to buy gunny bags. The petitioner's case is that the money was advanced to him as part payment of what was due to him for brokerage.
23. The Honorary Presidency Magistrate who tried the case convicted the petitioner under Section 406, Indian Penal Code, and sentenced him to pay a fine of Rs. 200. Though he found that the accused's story was false, which involves the finding that the money had been obtained by false pretences, he was of opinion that the petitioner had no intention of permanently appropriating the money, but intended to pay it back in a few days.
24. The points relied on in argument before us are, (1) the words 'howlat lya' against the entry in the account book, (2) the fact that the entry merely shows an advance, without giving particulars: We were told that in every other instance in the account book the purpose of the advance was noted, (3) that after this date, viz, 18th April, the petitioner acted for the firm of Mesrrs. Kundu & Co. and might have cheated them of more, (4) that the complainant admits that he would have paid the whole bill if it had been presented to him, and the evidence is that the bill had been in the accused's hands for some time before April 18th, (5) that there is no other instance of part payment of a bill, (6) that the petitioner had a dispute with the firm which wanted to saddle him with the loss on a transaction in barley, which petitioner says should fall on the firm, (7) the the petitioner brought a suit in the Small Cause Court for his dues as brokerage, in which suit he gave credit for the advance of this sum of Rs. 140.
25. The case in fact has been argued before us as if it were an appeal and not an application in revision. This Court, no doubt, has the power in revision to enter into questions of fact, but it is a power which, in my opinion, should be sparingly exercised, for there is a danger that the sense of responsibility of the Subordinate Courts as ultimate Judges of facts will be blunted, if our powers are freely exercised, and we ought only to interfere in revision with findings of fact when it is demonstrated very clearly that they are wrong.
26. Obviously the two first points urged for the petitioner are the strorgest. The words 'houlat lya' are, no doubt, consistent with the petitioner's story, but they are also consistent with that of the prosecution.
27. As regards the second point there would have been more force in the contention if there had been some cross-examination of the complainant on the lines of the argument. Not only WAS he not definitely asked to explain the omission of particulars, but his attention does not seem to have beendrawn, even indirectly, to the desirability of giving an explanation. Nothing more seems to have been done than to ask him about particulars of three entries (Exhibits B.C. and D) so widely separated from each other as pages 111, 211, and 302 of the account book. Then the witness Sailaja Kanta Roy says, 'there are some entries in this book in which the purpose for which the money is paid is entered.' I find nothing in the evidence of any of the witnesses to justify the statement of the learned Pleader that the purpose of the advance is always noted in other entries. If I misunderstood him and be did not (sic) to say that it was an invariable practice to enter particulars, the whole point of the argument is gone.
28. There is obviously nothing in the argument that the petitioner might have cheated his employees of more, especially in view of the Magistrate's finding that he probably hoped to repay what he took.
29. The, fourth point is really part of the third to show that the petitioner might by presenting the bill have got over Rs. 1.00 into his hands. And the force, such as it is, of the argument is considerably discounted by the fact that the suggestion made in cross-examination to Bistu Narain Kundu, one of the partners, is that the petitioner did present the bill several times for payment, but the firm would not pay it. An obvious answer to the argument is that had the whole amount due on the bill been handed to the petitioner, the complainant firm would have at once demanded a receipt of the bill from Messrs. Seo Narain-Ram Narain.
30. That these is no other instance of part payment does not strike me as of any importance, when it is alleged to have been made in this case to oblige the firm of Seo Narain-Ram Narain on the petitioner's representation that they wanted to buy gunny bags.
31. That the petitioner had a dispute with the firm, if the suggestion be true, about a barley transaction does not to my mind go for much; that he instituted a suit in the Small Cause Court against the firm nearly three weeks after the complaint was lodged, goes for nothing at all.
32. These are all the points which were urged and I consider that the petitioner has entirely failed to show that the Magistrate's finding was incorrect. The Magistrate's language does not indicate any doubt; he has believed the evidence of the principal witnesses, the two partners, who say that the petitioner got the firm to make the advance on the representation that the firm of Seo Narain-Ram Narain wanted to buy gunny bags. There is evidence coming from the latter firm that they did not ask petitioner to get the money from them for gunny bags. There is further evidence that the petitioner told the firm of Seo Narain-Ram Narain the false story that he could not collect the amount of their bill as the Babu was away. And there is this fact to support the story of the prosecution that directly the firm of Seo Narain-Ram Narain wrote to the complainant firm about the bill with a demand for payment, the latter wrote that Rs. 140 had already been paid through the petitioner.
33. Apart from the facts there is a difficulty arising out of the form in which the Rule was issued. It was issued on the grounds set out in the petition.' The first ground was a general one of mistake of law, the second that dishonesty not having been found the conviction was bad in law, the third that in view of the Small Cause Court suit the case was of the nature of a Civil dispute, the fourth that the entry in the account book smashed the prosecution case, the fifth that on the Magistrate's findings the accused should have been acquitted. All except the fourth ground are grounds of law, but not one ground of law was urged at the hearing and the arguments advanced as to facts travelled far beyond the fourth ground. This may seem a technical objection, and it might perhaps rightly have been treated as such had the Crown been represented by any one prepared to argue on the facts. But the Crown has not been represented at all. The learned Judges issuing the Rule intended that the case might be argued on the facts, but unfortunately the terms of the Rule did not make that clear. It is impossible to say that the Crown would not have been represented had it had clear notice that the findings of fact would be assailed. I am glad, however, that it is not necessary to base my opinion on a technical objection for the Magistrate had reason for coming to his findings and on the evidence, I find no sufficient ground for supposing that he came to anything but a right conclusion.
34. I think the Rule should be discharged.