M N MUKHERJEE Vs. MATANGI CHARAN PALIT

JUDGEMENT

(1.) THIS is a Rule calling upon the Chief Presidency Magistrate and also on the opposite party to show cause why the order complained of should not be set aside. The complainant complained before the Chief Presidency Magistrate charging the accused-opposite party with cheating and criminal breach of trust. The case Set up by the accused was that he had already been tried and acquitted in Bardwan on a charge which involved the same set of facts and that, therefore, this case ought not to be permitted to go on. The matter, however, had already been once before this Court and the Rule that had been obtained by the accused was discharged on the ground that the accused ought to have taken the plea of his previous acquittal before the trial Court as a defence. It is quite impossible to give effect to that judgment without hearing the case and ascertaining what the facts in this case are; and if it becomes necessary to frame a charge, then the accused would be able to set up the previous acquittal as stated by the learned Judges in the former judgment as a plea in his defence. I am not satisfied one way or the other as to whether the facts are or are not the same. It is exceedingly difficult, without having any evidence, to ascertain whether these facts are the same facts that were gone into in the Burdwan Court. That is a matter which has got to be ascertained after hearing the evidence and ascertaining what the facts are in this case and what were the facts found in the Burdwan Court. I think we ought to make the Rule absolute and send the case back to the Presidency Magistrate to have the complaint of the petitioner duly enquired into and determined. Walmsley, J.

(2.) I agree.