1. The appellant Bishnupada Deb has been convicted on four charges. The first is a charge of having conspired with three persons to cheat one Harey Krista 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 re-trial 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. Today 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 those 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.
3. The main facts of the case are as follows: We are satisfied on the evidence that the firm of William Anderson & 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 was 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. 50,000 into the firm. To gain this agency he paid a sum of nearly Rs. 20,000. Subsequently he was induced to substitute the arrangement that be should be a banian for a partnership arrangement and the deed of a partnership was Actually drawn up Then, finding that he was getting nothing from the firm, he complained to the Deputy Commissioner of Police.
4. 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.
5. 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, Criminal 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 the 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, Criminal. 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 rewrite those portions of it which should have bean 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 recalled for cross-examination after the amended charge.
6. The case depends largely on the weight to be attached to the evidence of the complainant Routh. We have carefully considered the case from this point of view and the bearing of the other evidence oral and documentary, on his veracity. There can be no doubt that Routh was a man of no great intelligence and was more easily deceived because he was desirous of making money easily. But the probabilities are in favour of his story and against the appellant. On the case for the appellant their firm was one with a very small capital. According to them the original capital was Rs. 4 000/. This we may say we do not believe to be true. But even accepting it as a fact it is impossible to believe that Routh would have agreed to put Rs. 50, 000 into the firm and have actually paid nearly Rs. 20,000 if he had known the true nature of the firm. In order that he should have done this he must have been deceived into believing that the firm was doing a far larger business than the documentary and other evidence show. If he was deceived in believing this there seems little reason for doubting that he was deceived in the manner he has described. That the present appellant was taking a leading part in the conspiracy and in the actual deception of Routh is also clear from the evidence. As one out of other incidents we may refer to his visit to Bhadrak to induce the complainant to provide further money. No reasonable explanation other than that suggested by the prosecution has been given why he should have gone to this place.
7. As regards the individual charges it is urged that it is not proved that there was any conspiracy prior to the 15th July when the complainant was first brought into negotiations with the appellants' firm. The date of the conspiracy is given in the first charge as between the 4th July 1921 and the 3rd day of September 1921. It was not necessary for the prosecution in support of this charge to give evidence that there was conspiracy during the whole of the period. It is sufficient that they were able to establish that the appellant and his co-conspirators were parties to a criminal conspiracy at some period between these two dates.
8. As regards the other three charges it is urged that the evidence is insufficient to prove that the appellant himself was actually concerned with these three transactions. But once his partnership in the conspiracy is established there is very little more to be proved to establish his connexion with these definite acts and there is in our opinion sufficient evidence to establish that he was an active party in all these three acts of cheating.
9. We are asked to reduce the sentence passed on the appellant mainly on the ground of the long period of his anxiety owing to the protraction of these proceedings. We find from the order sheet that the appellant himself was to some extent to blame for the delay. On several occasions the case had to be adjourned owing to his failure to appear. The matter too has already been taken into consideration by the trying Magistrate who had passed a sentence of two years rigorous imprisonment at the original trial. We can see no ground for further reduction of sentence.
10. The judgment does not deal fully with all the points that have been argued or all the points that have been considered, but we have, as already stated, given the most careful consideration to the evidence on the record and the arguments of the learned vakils for the appellant who did the best that could be done for their client in a most difficult case.
11. The appeal is dismissed. The appellant must surrender to his bail and undergo the unexpired portion of his sentence.