- (1.) THIS is a revision by the accused Mangilal against the judgment of the learned Sessions Judge, Jodhpur, dated the 6th May, 1952. The accused was tried for certain offences under secs. 406, 417 & 471 of the Indian Penal Code by the First Glass City Magistrate, Jodhpur, and found guilty on all the counts, and sentenced to simple imprisonment for six months and a fine of Rs. 1,000/- and in default to further simple imprisonment for two months under sec. 417 I. P. C. , to simple imprisonment for two years and a fine of Rs. 1,000/- and in default to simple imprisonment for four months under sec. 406 I. P. C, and to simple imprisonment for one year and a fine of Rs. 1,000/- and in default further simple imprisonment for four months under sec. 471 I. P. C. All the sentences of imprisonment were ordered to run concurrently. On appeal, the learned Sessions Judge acquitted the accused of the offence under sec. 471 I. P. C. but maintained his conviction and sentences under secs. 406 and 417 I. P. C.
(2.) THE case for the prosecution as laid in the first information report was that the accused Mangilal worked as Kamdar to the estate of the complainant Rao Raja Pirthisingh, that on 10th November, 1947 certain jewellery weighing about 123-1/2 gold Mohars having been put in a box under lock and key, was given to the accused to raise a loan of Rs. 8000/- by pledging the same, and that the accused gave a sum of Rs. 4,000/- only out of the sum of Rs. 8000/- borrowed on security thereof and gave a document of Rs. 4000/-, which was discovered to be a forgery at or about the time of making the complaint. It was further alleged that the accused was asked to take the money and return the ornaments but he flatly declined to do so, and therefore, it was prayed that action be taken against the accused under secs. 406 and 420 of the Penal Code. It was stated in the report that a list of the ornaments was given at the foot of the complaint but no such list was actually given at the time. This report was signed by one Sayar Chand Mehta who described himself as Vakil of Rao Raja Pirthisingh, and is dated 9th February, 1949 about a year and three months after the ornaments were delivered to the accused Mangilal. It appears that Rao Raja Pirthisingh was a minor of about 14 years of age at the time of the raising of the loan and his natural guardian was her grandmother Mst. Purankanwar, widow of Rao Raja Shivdansingh. The case as sought to be proved at the trial on behalf of the complainant may how be briefly stated as follows: It was said that the complainant and his grand-mother were in sore need of funds as they were constructing a house at the time, and that Mangi Lal was entrusted with eleven ornaments including a Sankli to raise a loan of Rs. 8,000/- on security thereof. Mangilal is said to have been accompanied by Rao Raja Pirthisingh himself when the former pledged the ornaments and obtained money from a person named Rao Sobhag Mal whom Mangilal stated to be Thakur Kesri Singh of Khinvsar. The box containing the ornaments was handed over to the creditor but its key was retained by Rao Raja Pirthi Singh and a document Ex. P-6 was executed on behalf of Ratanlal who is said to be Mangilal's brother, in favour of Rao Sobhagmal evidencing of pledge on 10th November, 1947. This document mentioned the rate of interest payable as 6 annas per mensem. It is thus said the representation made by the accused Mangilal that he had obtained the loan by pledging the ornaments with Thakur Kesari Singh of Khinvsar was false, and that a receipt alleged to have been obtained from him on 10th November 1947 (Ex. P-4) giving a list of ornaments pledged and mentioning therein that a sum of Rs. 8000/- had been loaned from the said Thukar Kesri Singh was a forged document. This receipt is also dated 10th November, 1947. The case which has further emerged at the trial was that the accused having thus placed himself in possession of a sum of Rs. 8,000/- gave only half of that amount to Mst. Purankanwar, and that he managed to give the balance of Rs. 4000/- as loan to an alleged debtor Maharaj Kishen Singh of Raoti at the rate of 1% per mensem as the latter needed a loan in connection with the Tika Dastoor of his daughter's betrothal. This transaction of loan is said to have arranged on the hypothesis that out of the interest accruing and earned from Maharaj Kishen Singh, which was at the rate of 1% per mensem, the complainant would be able to defray his own interest on the loan of Rs. 8,000/- which had been arranged at the rate of 6 annas per cent per mensem. The document Ex. P-5 alleged to have been executed by Maharaj Kishen Singh is also dated 10th November, 1947. The case for the prosecution is that there was no such person as Maharaj Kishen Singh of Raoti at all, as was discovered by the complainant's grandmother later from Rao Raja Udai Singh and from certain inquiries made independently by her. According to Mst. Puran Kanwar, the accused Mangi Lal gave her the receipt Ex. P-4 alleged to have been executed by Thakur Kesri Singh of Khinvsar about 3 or 4 days after the transaction had been entered into, that is, on 13th or 14th November, 1947. Similarly, Mangilal is said to have given the bond executed by the alleged Maharaj Kishen Singh of Raoti to Mst. Purankanwar on or about 13th or 14th November, 1947. Mst. Purankanwar has stated that when she had told Mangilal that Prithi Singh had told her that the person from whom the money had been taken did not appear to be a Thakur but appeared to be a Pancholi or a Bania, Mangilal told her that that person was a Kameti of the Thakur, and that she believed that statement. According to Pirthi Singh, when he went to the place of the creditor to inquire about the ornaments, he was told that Mangilal and taken them away, and all this had happened within about 20 days of the transaction of pledge having taken place. Then Mst. Puran Kanwar contacted Rao Raja Udai Singh who told her that both the documents Ex. P-4 and Ex. P-5 were false and fraudulent, and apparently at his advice a report was made to the police, which has already been set out above. The accused Mangilal pleaded not guilty. His defence was that when on Kartik Vadi 13, Svt. 2004 (which corresponds to 10th November, 1947) Rughnath, a servant of the complainant, came to call the accused and he went there, Mst. Purankanwar told him that she was in urgent need of a sum of Rs. 8,000/- and asked the accused to give here a loan. Thereupon, the accused agreed to give the sum of Rs. 8,000/- at 8 annas per cent per mensem. Ten ornaments were pleaded with him, and he weighed them and entered their weight in the Thikana Bahi. Thereafter the accused and Rao Raja Pirthi Singh took the jewellery and went to Mangilal's shop whence Pirthi Singh, Mangilal, as also the latter's brother Ratanlal went to Rao Sobhagmal. But Sobhagmal was not prepared to give a loan of Rs. 8,000/- on those 10 pieces of jewellery, and so the accused pledged one more item of jewellery, which was a sankli of his own, and executed a khata in his own name. In other words, the accused stated that he stood in the position of a creditor himself as against the complainant, and that the former had pledged one item of his own jewellery weighing about 14 tolas with Rao Sobhagmal, as the value of the complainant's jewellery was not by itself acceptable to Rao Sobhagmal for giving a loan of Rs. 8,000/ -. The accused alleged that he had given the total amount of Rs. 8,000/- to Mst. Purankanwar, and that Gulam Rasool and one maid servant were present at the time he gave the money. The accused also alleged that about four months afterwards Mst. Purankanwar gave him a sum of Rs. 800/- and asked him to redeem whatever portion of the jewellery could be redeemed therewith; whereupon, he, accompanied by Rao Raja Pirthisingh, went to Rao Sobhagmal and redeemed a portion of the jewellery, and that subsequently in four or five instalments Mst. Purankanwar had redeemed the entire jewellery. Finally the accused stated that the entire accounts had been gone into between the complainant and his grand-mother Mst. Purankanwar on the one side and the accused on the other as a result whereof Mst. Puran Kanwar and Pirthisingh had executed a receipt in the accused's favour giving him a complete discharge in respect of all the Thikana affairs in which the accused had participated and further that according to that receipt (Ex. D-l) a sum of Rs. 2000/- only which he bad obtained by way of loan on a bond were due from him and nothing else, and that the entire prosecution had been brought against him by the complainant at the instance of Bhanwarlal a relation of Mst. Purankanwar. This alleged receipt is dated 4th March, 1948. The first thing that strikes one's mind in this case is that the first information report was made after a very long delay. The transaction of pledge took place on 10th November, 1947. Making every allowance for minor discrepancies in the case for the prosecution on this point, there is no escape from the conclusion that Mst. Purankanwar came to know from no less a person than her own grand-son Rao Raja Pirthisingh that the accused Mangilal had obtained the loan of Rs. 8,000/- not from Thakur Kesrisingh (as would appear from Ex. P-4) but from Rao Sobhagmal (see Ex. P-6 ). Her suspicions had certainly been aroused by that time but she says that when she sent for Mangilal and checked up the matter with him, the latter told her that the quarter wherefrom the loan had been obtained was that of Thakur Kesrisingh of Khinvsar, and the actual person who loaned the money was an employee of the Thakur. This explanation is not convicting. We have it from Rao Raja Pirthisingh (P. W. 1) himself that it had struck him at the very time the transaction of loan was being arranged that they had gone to some one else and not Thakur Kesrisingh of Khinvsar, and in fact, the former mentioned that fact to his grand-mother on the same night. It further appears from the evidence of Rao Raja Pirthisingh that he had gone to Rao Sobhagmal about 10 or 20 days after the transaction of pledge had taken place when the latter told him that Mangilal had taken away all the ornaments from Rao Sobhag Mal. In his cross-examination, Pirthisingh said that he did not know Rao Sobhagmal from Thakur Kesrisingh of Khinvsar, and that he discovered the truth about 10 days after the loan when he had a talk with Rao Sobhagmal's grandson. Pirthi Singh further said that the latter was a student in the Pratap Primary School where Pirthi Singh himself carried on his studies. It is proved to the hilt however on the record that Rao Sobhagmal had no grand-son at all, and that Pirthisingh was obviously lying on this point. It is, therefore, obvious that Mst. Purankanwar is not telling the whole truth when she says that she did not know that the loan had not been obtained from Thakur Kesrisingh, and further that her suspicions were set at rest by the explanation which Mangilal had rendered to her. It may further be stated in this connection that the receipt Ex. P-4 said to have been executed by Thakur Kesri Singh and Ex. P-5 a bond said to have been executed by Maharaja Kishen Singh of Raoti had been handed over to Mst. Purankanwar probably on the same day they were executed or at any rate within 3 or 4 days thereof. It may further be pointed out that Mst. Purankanwar is a literate person and it is too much to suppose that in view of what Pirthisingh had told her and the subsequent made by Pirthisingh within about 10 or 20 days of the loan having been arranged that she did not come to know the whole truth. It is also difficult to believe that Mst. Purankanwar did not know that the alleged Maharaj Kishen Singh of Raoti was a spurious person, within a short time of the bond Ex. P-5 having been handed over to Mst. Puran Kanwar. It is, therefore, not easy to understand why the complainant lodged the first information report after such a great delay. The learned Sessions Judge found himself confronted with this difficulty; but, in my opinion, he did not face it squarely. All he says is, "thus, it is clear that the prosecution has not been able to explain the cause of late prosecution. Let us leave the matter at that and proceed further. " This in my judgment, was not a satisfactory way of dealing with this point. I cannot help stating that the prosecution has failed to explain the delay in this case, and that this factor casts not a little doubt on the whole prosecution case. In the second place, it is remarkable that while the entire story had unfolded itself to Mst. Puran Kanwar long before and certainly by the time the first report came to be made, and the details of the report had been settled by a qualified lawyer namely Mr. Sayarchand Mehta, the case, as laid in the first information report was in certain material particulars different from the case sought to be proved at the trial. The first information report mentioned only one document which was discovered to be forged. The case at the trial was that the accused Mangilal had cheated Mst. Puran Kanwar by palming off two forged documents on her, viz. , Ex. P-4 and Ex. P-5. The further statement made in the first report that the document in respect of the balance of Rs. 4000/- was discovered to be forged just prior to the making of the said report cannot bear any examination. Apart from a careful examination of the evidence of Mst. Purankanwar Rao Raja Pirthisingh, Mst. Manbhar, one of the principal witnesses for the prosecution, stated that within 3 or 4 days of the transaction of pledge, Pirthisingh clearly said that the lender was not the Thakur of Khinvsar but was one Sobhagmal Bania. It is obvious, therefore, that the complainant has not come out with the whole truth while the first information report was made, and I can only attribute this to folly on the part of Mst. Puran Kanwar and her advisers. It must also be mentioned that Rao Raja Udai Singh was a material witness in this connection, but the prosecution has failed to produce him for reasons best known to themselves. What is still more lamentable is that even the author of the first information report, Mr. Sayar Chand Mehta was withheld from the witness-box with the result that the defence has been deprived of the valuable opportunity of cross-examining him. Mr. Sayar Chand Mehta was a very material witness and the manner in which he has been held back is sufficient to throw a further mist of suspicion round the prosecution case. Now while the finding of the courts below that the ornaments were entrusted to the accused Mangilal by Mst. Puran Kanwar may be accepted, the position that he mis-appropriated the ornaments is not free from serious difficulty. The learned Sessions Judge himself has held that the pawning of the ornaments by Mangilal in his own name and not in the name of Puran Kanwar is by itself not sufficient to charge Mangilal with dishonest conduct. The learned Sessions Judge has further referred to the fact that "the prosecution has not been very clear on this point that what capacity did Mangilal hold when he was asked to pawn the ornaments; whether he was asked to do it as a creditor or as an agent is not well explained". It appears from Ex. P-6 that all the ornaments pledged with Rao Sobhagmal had been redeemed by Ratanlal from time to time. It is indeed mysterious how the ornaments came to be pawned and redeemed by Ratanlal who, it may be stated, is not before this Court, having already been discharged. But more mysterious still, the case of the accused is that he returned all the ornaments to Mst. Puran Kanwar, and he has produced Ex. D-l in support of his version. Mst. Puran Kanwar, said that the ornaments were never returned to her. Then a serious question arises how Mst. Puran Kanwar admitted her signatures on Ex. D-l when it was shown to her along with documents Ex. P-4 and P-5. All that she said was that Ex. P-4 did not contain her signature from which it necessarily followed that Ex. D-l did bear her signatures. Now, Ex. D-l clearly states that all accounts between Mst. Puran Kanwar and the accused had been gone into and adjusted. There is a very clear reference in Ex. D-l to the transaction of pledge for the sum of Rs. 8,000/- in these terms: Vykok esjk caxyk cuokus ds oklrs esaus rqegkjs ls laor~ 2004 ds dkrh on 13 dks esjk tsoj rqegkjs ikl /kj dj :i;k vkb gtkj rqegkjs ls fy;s Fks oks tsoj Hkh esaus rqegkjs gkfk ds :ds ds ekfqd okfil rksy tksd dj pwdrk ys fy;k gs vksj bl fglkc ds :i;s esaus rqegkjs dks pwdrs ns fn;s gsa vc vkt ferh rd rqegkjs esa flqz esjs :i;s nks gtkj ds Vykok vksj dksbz ysu&nsu rqegkjs eas ;k rqegkjs glrs nwljs esa esjk ugha gsa ftldh ;g jlhn rqegkjs dks esjs gksl gokl dh gkyr esa fy[k dj rqegkjs dks ns nh gs lks lgh gsa** This receipt is dated Fagun Vadi 9, Svt. 2004 (which corresponds to 4th March, 1948 ). The learned Sessions Judge appears to have held that although Mst. Puran Kanwar admitted her signatures on Ex. D-l there is nothing to suggest that she read the document or that it was read over to her and that she was not expected to read the document and thereafter give a detailed and elaborate answer. This, in my opinion, was not a correct approach to the case raised by the defence. It was the duty of the prosecution to have obtained a clear statement from Mst. Puran Kanwar as regards Ex. D-l for the simple reason that if Ex. D-l is held not to have been dis-established on the record. , then the prosecution must fail. The burden of proving that the accused Mangilal misappropriated the ornaments lay throughout on the prosecution. The production of Ex. D-l on the part of the accused made that burden still heavier. It was, therefore, the bounded duty of the prosecution to prove that Ex. D-l was not executed by Mst. Purankanwar or by Rao Raja Pirthisingh. So far as Mst. Puran Kanwar is concerned, she has admitted her signatures on Ex. D-l and even Pirthisingh has made a very lukewarm sort of statement on the point and has not disclaimed his signatures on Ex. D-l. It may also be pointed out that Mst. Purankanwar should have made a clear statement as regards Ex. D-l in her examination-in-chief, and the matter should not have been left to the stage of cross-examination as appear to have been done. Reference may also be made in this connection to the evidence of Bhanwarlal P. W. 9 who, on his own showing, knew the hand-writing of Mst. Purankanwar. No statement of this witness was obtained as regards Ex. P-l in his examination-in-chief, and he also made an evasive answer in his cross-examination. It is further significant that this receipt contains an averment that Mst. Purankanwar had obtained a loan from the accused Mangilal, which means that the position occupied by him was that of a creditor and not of an agent. The learned Sessions Judge was quite right when he said that it was the duty of the prosecution to have clearly laid their case on the point. Their failure to do so is a factor which cannot be disregarded in any proof as to the guilt of the accused. Both lower courts seem to have come to the finding that the accused has not been able to establish at the trial the proof of Ex. D-l beyond all doubt, and to have come to the conclusion as to the accused's guilt on that basis. In this connection the evidence of the attesting witness Bhuralal and another witness Mst. Bhuri has criticised and held to be unreliable. Even so, it must be pointed out that in criminal cases, it is for the prosecution to bring the guilt home to the accused. It is not correct to say that when the prosecution has adduced such evidence as the circumstances and nature of the case require, it is for the accused to establish his innocence for the reason that there is no burden laid on the prisoner to prove his innocence, and it is sufficient if he succeeds in raising a doubt as to his guilt. See Ramkala vs. Emperor (1) (A. I. R. 1946 All. 191. ). The true principle of law is that a trial under sec. 406, where the accused admits having received the money alleged to have been misappropriated by him but defends himself by saying that he had made it over to the proper person, the onus does not lie upon the accused to prove the payment but upon the prosecution to prove non-payment and it is only where the latter is proved that the guilt can be held to have been brought home to the prisoner. See Bhik Chand Ganga Ram vs. Emperor (1) (A. I. R. 1934 Sind. 22. ). In any case, it was not the function of the criminal courts to make a searching and elaborate enquiry and come to any positive conclusion as regards the genuineness of Ex. D-l, which can be best gone into in appropriate civil proceeding and it is indeed a question upon which even a civil court may find considerable difficulty in coming to correct conclusion. All that I should like to say is that the production of Ex. D-l and the manner in which the prosecution has tried to meet it, have made the case for the prosecution doubtful and it is not possible to launch into any elaborate inquiry in the criminal courts whether Ex. D-l represents a real transaction between the parties or otherwise.
(3.) IT has next been contended before me that the trial of the accused was illegal on account of the breach of the provisions of sec. 234 of the Code of Criminal Procedure. The accused was tried jointly for three offences under secs. 406, 417 and 471 I. P. C. The offence under sec. 417 was alleged to have been committed on 10. 11. 47. Similarly the offence under sec. 471 was alleged to have been committed on 10. 11. 1947 also. As regards the offence under sec. 406 the charge was in respect of acts done from 10th November, 1947 to 9th February, 1949 which is a period of more than 12 months. Now, sec. 234 imposes two restrictions. The first is as to the number of offences to be tried at one trial and this number should be not exceeding three and such offences must be of the same kind. The other restriction provided under sec. 234 is that a single trial can take place in respect of three such offences limited to have taken place within the space of twelve months. If, therefore, the offences with which the accused is charged extend over a period longer than 12 months, then a single trial would be illegal as contravening the provisions of sec. 234 Cr. P. C. In this case it is clear that the charge under sec. 406 was laid in respect of acts done over a period of fifteen months and, therefore, the trial was held in contravention of the provisions of the section in question. The next question is whether the aforesaid illegality is curable under sec. 537 Cr. P. C. In Kalu Mian vs. Emperor (2) (A. I. R. 1931 Cal. 357.) it was held that: " Where an accused's charged with criminal breach of trust in respect of certain property, and the period during which the offences are said to have been committed is one of 15 months as stated in the charge, a conviction based on such a charge offends against the provisions of sec. 234 under which the charge must be limited to offences committed within a period of 12 months, the trial was illegal and was not curable under sec. 537 Cr. P. C. " The same view was taken in Emperor vs. Jagat Ram (3) (A. I. R. 1912 Lah. 440.), Ramanlal vs. Emperor (4) (A. I. R. 1927 All. 223.) and Subramania Ayyar vs. King Emperor (5) (I. L. R. XXV Mad, 61 (P. C. ). ). In the last mentioned case which went up to their lordships of the Privy Council, the accused was charged with 41 acts which extended over a period of two years. IT was contended that the trial was in contravention of sec. 234 Cr. P. C. Their lordships held that the trial was illegal and that they were unable to regard the disobedience to an express provision as to mode of trial as a mere irregularity. Consequently, the trial was quashed and the conviction set aside. I am of opinion, therefore, that the single trial of the accused for three offences of different character and which were spread over a period of more than 12 months cannot be maintained. The question that next arises is whether the case should be sent back for re-trial, but I propose to deal with this point later. I must next refer to another feature of the prosecution case which is that the accused retained the sum of Rs. 4,000/- under the pretence of arranging a loan of one Maharaj Kishen Singh of Raoti, who was a fictitious person. I am certain that, as already stated above, it had come to the notice of Mst. Purankanwar soon after the execution of Ex. P-5 by the alleged Maharaj Kishen Singh that there was no such person as Maharaj Kishen Singh of Raoti at all. No attempt has been made to show who scribed Ex. P-5. What is still more significant is that no question was put to the accused whether the prosecution case that he had arranged a loan for the alleged Maharaj Kishen Singh of Raoti was correct, and that whether he knew whether there was any person like Maharaj Kishen Singh or not. The learned Sessions Judge has himself stated that the non-existence of Kishen Singh is not clear and definite. The prosecution can only succeed against the accused on this part of their case by proving that Kishen Singh was a fictitious person. According to Mst. Purankanwar it was from Rao Raja Udai Singh that she came to know the truth in that respect; but Rao Raja Udaisingh has not been produced, and, therefore, the statement of Mst. Purankanwar in this respect suffers from a vital weakness because she does not speak from any personal knowledge, and the person from whom she derived her knowledge has not been produced. In this connection I must draw attention to the provisions of sec. 342 Cr. P. C. That section clearly lays down that the court shall question the accused generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. The object of this provision is to allow the accused an opportunity to explain any circumstances appearing against him in the evidence to enable the court to decide the question of his guilt. As already stated above, the learned Magistrate in this case entirely failed to put to the accused whether the case of the prosecution, that he got executed and handed over the document Ex. P-5 to Mst. Purankanwar was correct, and whether he knew Maharaj Kishen Singh of Raoti. The examination of the accused was, in my opinion, a most superficial and perfunctory one and amounts, in the circumstances of the case, to a gross irregularity which has vitally affected the trial of the case. In this connection I cannot do better than to cite, with respect, the observations of their lordships of the Supreme Court in Tara Singh vs. The State (1) (A. I. R. 1951 S. C. 441. ). " The importance of observing faithfully and fairly the provisions of sec. 342 cannot be too strongly stressed. It is not a proper compliance to read out a long string of questions and answers made in the committal court and ask whether the statement is correct. A question of that kind is misleading. In the next place, it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material circumstance which is intended to be used against him. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning must, therefore, be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. . . . . . Fairness, therefore requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. " Their lordships further observed that: " Every error or omission in this behalf does not necessarily vitiate a trial because the errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned. Having given my very careful consideration to the facts and circumstances of the case, I have come to conclusion that the failure on the part of the learned Magistrate to comply with the provisions of sec. 342 Cr. P. C. was so gross that it could not have caused prejudice to the accused in his trial. In this connection, the next question that naturally arises is whether I should order a retrial of the accused on accused of the breach of the provisions of sec. 342 Cr. P. G. and also because the trial offends against the provisions of sec. 234 Cr. P. C. as already pointed out above. I have given this question my most anxious consideration and have formed the opinion that a retrial of the accused in the circumstances of the case will not serve any useful purpose. I have already set out above some very glaring infirmities of the case for the prosecution, viz. , the delay in the first report, the variance between the case laid therein and the case sought to be proved at the trial, and last but not the least, the failure of the prosecution to disestablish the case raised by the receipt Ex. D-l, a matter which is in my judgment too complicated for the criminal courts to decide. ;