NIRMAL PRASAD BARUA Vs. STATE
LAWS(GAU)-1951-6-10
HIGH COURT OF GAUHATI
Decided on June 25,1951

NIRMAL PRASAD BARUA Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) This is a revision petition filed by one Nirmal Prasad Barua under the provisions of Section 439, Cr.P.C. in a case in which he was convicted Under Section 409, I.P.C. and sentenced to R.I. for 12 months and to pay a fine of Rs. 600 or in default to undergo further R.I. for 6 months by Mvi. A. Rahman, Magistrate of the First Class, Gauhati. On appeal, his conviction, and sentence were confirmed by the learned Additional Sessions Judge, L.A.D. Apparently the learned Additional Sessions Judge was informed that the petitioner was undergoing a sentence of imprisonment passed in another case, and he, therefore, directed that the sentence of imprisonment passed in this case was to run concurrently with any sentence of imprisonment that the applicant may be already undergoing in another case.
(2.) The case for the prosecution was that the petitioner, as the Agent of the Gauhati Bank Limited at Gauhati, obtained a sum of Rs. 13,000 from the Gauhati branch of the Calcutta National Bank Limited by negotiating a cheque, dated 16.7.1947, drawn by the petitioner on the Calcutta Branch of the Central Bank of India Limited. The petitioner personally received the sum of Rs. 13,000/- from the Gauhati branch of the Calcutta National Bank Limited but failed to account for the same and has, therefore, committed criminal breach of trust.
(3.) The point taken by Mr. Ghose for the petitioner before us is that the examination of the petitioner by the Trying Magistrate was not an examination in accordance with the provisions of Section 342 of the Code of Criminal Procedure. The learned Additional Sessions Judge, in the course of nig judgment, criticized the learned Magistrate's examination of the petitioner in these terms: The examination of the accused under the provisions of Section 342 of the Code of Criminal Procedure by the learned Magistrate was of a most perfunctory nature and the matters appearing in evidence against the accused were not brought to his notice to obtain his explanation thereon. So, it is very difficult to gather from the records of the case as to what actually the defence of the accused was at the time of the trial, and it is not possible to say if the submission now made by the learned Advocate for the appellant is not the result of an afterthought on the part of the accused appellant himself. Whatever that might be, I have got to consider whether or not it is expedient to remand the case to the Court below for retrial on the ground of non-observance of the mandatory provisions of Section 342, Criminal Procedure Code by the learned Trial Court. To do so I must be satisfied that for non-observance of the mandatory provisions of Section 342 of the Code of Criminal Procedure, the accused was prejudiced at the trial. The learned Advocate for the appellant does not seem to want a retrial of the case, and all that he wants is that the appeal should be decided on the basis of the evidence already on record.;


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