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Bishnupada Deb Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in97Ind.Cas.651
AppellantBishnupada Deb
RespondentEmperor
Excerpt:
cr.p.c. (act v of 1898), sections 387, 370 - presidency magistrates--judgments, contents of--omission to record particulars in usual printed form, effect of--reference to previous judgment in final order, propriety of. - .....to his referring to a document on the record instead of taking the trouble to re-write those portions of it which should have been included in his final order. we have satisfied ourselves that there is no force in the contention that in deciding the case finally the learned magistrate was influenced by the evidence of the witnesses who could not be re-called for cross-examination after the amended charge.[note.--the rest of the judgment deals with facts and is not material for the purposes of this report. --ed.]
Judgment:

1. The appellant Bishnupada Deb has been convicted on four charges. The first is a charge of having conspired with three other persons to cheat one Horey Kristo Routh. The other three charges relate to three specific acts of cheating committed in pursuance of this conspiracy. On the charge of conspiracy the appellant has been sentenced to one year's rigorous imprisonment and to pay a fine of Rs. 1,000 or in default rigorous imprisonment for six months. On the other three charges he has been sentenced to one year's rigorous imprisonment on each charge, all the substantive sentences of imprisonment to run concurrently.

2. This case was instituted by a complaint which was laid as long ago as the 24th October 1921. At the first trial before the Honorary Presidency Magistrate there was a serious error in the framing of the charges which necessitated the conviction and sentences of the appellant and his co-accused being set aside by this Court and a re-trial on a properly framed charge ordered. At this retrial the two co-accused of the appellant pleaded guilty at a late stage. The hearing of this appeal has lasted more than two days. Having regard to the length of time that has been occupied by the trial we are anxious not to delay the final disposal of this case. To-day being the last day of the term in order that we may sign the judgment before the Court closes, it is impossible for us to deliver such a lengthy judgment as we should have done under other circumstances. But though we shall deal with the case somewhat briefly we have carefully considered the able defence set up on behalf of the appellant by the learned Vakils who appeared on his behalf, and the shortness of our judgment does not mean that these arguments have not received careful consideration. Our task is rendered easier by the great care with which the learned Honorary Magistrate has tried the case and we find ourselves in substantial agreement with all his findings.

2. The main facts of the case are as follows: We are satisfied on the evidence that the firm of William. Anderson and Co of which, the appellant and one of his co-accused Mears and one Dhirendra who turned King's evidence were partners, was a firm which did very little real business but was making money by the unlawful method of ordering goods on credit and selling them at a lower price than the cost price but at a higher price than any sum actually paid in part payment by the firm. The complainant Routh was induced to believe that the firm was a genuine firm doing a large business and his first transaction with them was to agree to supply them with a number of barrels of cement. On entering into this contract he was told that Dhirendra, the informer, would supply part of the cement to the firm on his behalf and that Harendra Ghose, one of the co-accused, would supply the remainder. The understanding waa that he should pay cash to these two persons and recover the amount payable by the firm at a later date. In pursuance of this agreement he paid several thousand rupees to Dhirendra and Harendra but never received any money from the firm. When he pressed for payment he was induced to take up the post of banian of the firm on the understanding that he must pay Rs. 50 thousand into the firm. To gain this agency he paid a sum of nearly Rs. 20 thousand. Subsequently he was induced to substitute the arrangement that he should be a banian for partnership arrangement and the deed of partnership was actually drawn up. Then finding that he was getting nothing from the firm he complained to the Deputy Commissioner of Police.

3. We have not the least doubt that the story told by Routh is substantially true nor have we any doubt that the appellant was a member of the conspiracy to cheat Routh and that he actually took part in the. separate incidents of cheating which are the subject of the other three charges.

4. The main points which were argued on behalf of the appellant were as follows: It was first contended that the judgment of the lower Court was not in accordance with law. Section 370, Cr.P.C., however, does not require that a Presidency Magistrate should write a judgment. All it requires is that instead of recording a judgment he should record certain particulars, and in case of conviction and sentence of imprisonment or fine exceeding Rs. 200, a brief statement of the reasons for the conviction. It is to be regretted that the learned Presidency Magistrate did not strictly comply with Section 370. The various particulars required to be recorded have not been recorded in the usual way on the printed form provided for the purpose. We find on the record that all the important items of these particulars have been recorded and the omissions are of no real importance. So far as there had been any omission to comply with the provisions of this Section it was no more than an irregularity and was not an illegality which vitiated the trial. Objection has been taken more particularly to his reference in his so-called second judgment to his previous judgment. There would be considerable force in this argument had it been necessary that he should write a judgment in accordance with the provisions of Section 367, Cr.P.C. But since he is only required to record brief reasons for the conviction we see no serious objection to his referring to a document on the record instead of taking the trouble to re-write those portions of it which should have been included in his final order. We have satisfied ourselves that there is no force in the contention that in deciding the case finally the learned Magistrate was influenced by the evidence of the witnesses who could not be re-called for cross-examination after the amended charge.

[NOTE.--The rest of the judgment deals with facts and is not material for the purposes of this report. --Ed.]


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