D.D. Seth, J. - (1.) THIS reference has been made to this Court by the learned Sessions Judge, Lucknow -Kanpur at Kanpur, by his order dated 16 -6 -1967 and arises out of the following circumstances.
(2.) KAILASH Nath Applicant along with opposite parties Nos. 4 to 6, viz. Sarwanlal, Moti Chand and Smt. Shanti Devi, are the Directors of M/s M.K. Bros. (P) Ltd., Kanpur. This firm did cotton business and used to purchase cotton from outstation and used to sell the same to the textile mills at Kanpur. Opposite party No. 2 Sri Kesardeo Budhia was an employee of M/s. M.K. Bros. (P) Ltd. and used to look after the work of taking delivery of cotton bales from the railway station Kanpur. Opposite party No. 3 Sri Devi Prasad Agarwal belonged to J.K. Cotton Mills Kanpur. In 1958 the financial position of M/s. M.K. Bros was not very sound and great delays used to be caused in taking delivery of the consignments of cotton bales with the result that the cotton bales used to remain lying in the goods shed at Kanpur railway station for long periods with the result arrears of demurrage and wharfage chargeable by the railway authorities mounted up. According to the prosecution hi the year 1958 textile industry, as a whole, was facing crisis and in order to help it the Government granted some concession to that industry. The concession was that consignees who had their own railway sidings used to get remittance from the railway authorities in respect of demurrage and wharfage even though they could not take delivery of goods for a long time. According to the prosecution in 1958 M/s. M.K. Bros, were the consignees of a large number of consignments of cotton bales purchased by that firm but which were held up as the firm could not take delivery of those bales on account of financial difficulties. M/s. M.K. Bros., therefore, evolved a scheme in order to avail itself of the benefit granted to the textile industry by the Government. Accordingly they worked up a plan by which they misrepresented that the consignments of cotton bales received at the Kanpur railway station in the name of the firm actually belonged to M/s J.K. Cotton Mills Kanpur. In order to get the benefit of the concession made by the Government and in order to further the scheme evolved by it M/s. M.K. Bros, confided in opposite party No. 3 Sri Devi Prasad Agarwal and in another employee of the J.K. Cotton Mills at Kanpur. The Directors of M/s. M.K. Bros, together with opposite party No. 2 Sri Kesardeo Budhia, Sri Devi Prasad Agarwal and another employee of J.K. Cotton Mills entered into a conspiracy in furtherance of their object and as a result they submitted false applications to the railway authorities on behalf of J.K. Cotton Mills for remitting wharfages by representing that the consignments of cotton had been consigned to J.K. Cotton Mills. They also made false endorsements for transfer of those bales on railway receipts. Thus, according to the prosecution case, as a result of the conspiracy the railway administration was defrauded in the year 1958 -59 to the tune of Rs. 43,355 and odd. The matter was referred to the Central Bureau of Investigation at Lucknow whose Inspector, on 9 -9 -1963, submitted a charge -sheet against the Petitioner and opposite parties Nos. 2 to 6 Under Sections 120B, 467, 468 and 471, IPC.
(3.) ENQUIRY proceedings were started in the court of Sri Gir Raj Kishore, Magistrate first class, Kanpur and the case was friable as a Sessions case. Opposite party No. 2 Sri Kesardeo Budhia made a confession Under Section 164, Code of Criminal Procedure before the learned Magistrate first class on 30 -6 -1962 by which he admitted that he was guilty of conspiracy, forgery and cheating etc. along with the other culprits. According to the learned Magistrate first class, Kanpur Sri Kesardeo Budhia was told by the Magistrate that he was not bound to make a confession and that if he did so the confession made by him may be used as evidence against him. The learned Magistrate further certified that he believed that the confession was made voluntarily and was recorded by his own hand and was read over to Sri Kesardeo Budhia who admitted it to be correct. Similarly on 12 -7 -1963 opposite party No. 3 Devi Prasad Agarwal also made a similar confession as made by Sri Kesardeo Budhia before the learned Magistrate first class Kanpur confessing his liability for the commission of the crime for which charge sheet had been submitted by the Inspector of the Central Bureau of Investigation at Luck -now.;