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HIGH COURT OF CALCUTTA
Harries, S. R. Das Gupta
SUDHINDRA NATH - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Criminal Appeal 184 Of 1951
Decided On : MARCH 26, 1952
CRIMINAL LAW - EVIDENCE - ADMISSIBILITY - EVIDENCE GIVEN IN PREVIOUS JUDICIAL PROCEEDINGS - SECTION 33, EVIDENCE ACT - EVIDENCE GIVEN IN PROCEEDINGS DECLARED TO BE WITHOUT JURISDICTION - NOT ADMISSIBLE.
Fact of the Case:
The appellant was convicted of cheating under Section 420 of the Penal Code. The complainant had died before the trial was completed, and the trial court admitted the complainant's evidence from two previous trials, which had been declared to be without jurisdiction, under Section 33 of the Evidence Act.
Finding of the Court:
The court held that the evidence given by the complainant in the previous trials was not admissible under Section 33 of the Evidence Act because the previous trials had been declared to be without jurisdiction. The court also held that the Magistrate who took the deposition in the previous trials was not a person authorized by law to take it.
Issues: Whether the evidence given by the complainant in the previous trials was admissible under Section 33 of the Evidence Act.
Ratio Decidendi: Section 33 of the Evidence Act permits evidence which had been given in a previous judicial proceeding by a witness to be admitted in evidence in a subsequent judicial proceeding or in a later stage of the same judicial proceeding in order to prove the truth of the facts which it states, when the witness is dead or cannot be found. However, such evidence in order to be admissible under the said section of the Evidence Act must have been given by the said witness in a judicial proceeding or to any person authorized by law to take it.
Final Decision: The court allowed the appeal, set aside the conviction and sentences, and sent the case back to the trial court to decide it after eliminating the evidence of the complainant in the two previous proceedings which had been admitted by the trial court.
( 1 ) THIS is an appeal from an order of a learned Presidency Magistrate, Calcutta, convicting the appellant under Section 420, Penal Code and sentencing him to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 1000/-, in default to suffer rigorous imprisonment for six months more.
( 2 ) THE prosecution case is that on 30-7-1947 Phanindra Nath Mukherjee, a retired Deputy Magistrate, lodged a written complaint charging the accused with cheating him in respect of a total sum of Rs. 49,000/ -. The cheating as alleged took place in the following manner. The accused represented to the said Phahindra Nath Mukherjee and his partner in the firm of Indo Trading Corporation that he had already purchased a certain quantity of joists, angles and tees of the value of Rs. 85,000/- and that he had already obtained a delivery order in respect of the same. The said goods were alleged to have been purchased from M. E. S. and the delivery order issued by the Director General of Disposals in respect of 75 tons of tees, 75 tons of angles and 200 tons of joists. He represented to the said Phanindra Nath Mukherjee that he had already paid the price and in order to do that he had to borrow a sum of Rs. 47,000/- and that sum had to be paid off immediately. He requested the said Phanindra Nath Mukherjee to pay a sum of Rs. 49,000/- including Rs. 2000/- which he required as miscellaneous expenses and take delivery of the goods and from the sale proceeds give him the balance and some profits.
( 3 ) THE complainant agreed to that proposal subject to the goods being inspected and found saleable. On the next day, that is on 20-6-1947, the appellant took one Harey Krishna, the other partner of the complainant, and one Satyen Chatterjee, P. W. 3, to the Garrison Engineer's Depot at Barraekpore for inspection of the goods. The appellant managed to show to those persons some goods which were stocked with the said M. E. S. and they found fee quality of the goods to be in order. Thereafter, the matter was reported to the complainant and the complainant thereupon gave two cheques, one for Rs. 20,000/- and another for Rs. 27,000/- and also a bearer cheque for Rs. 2000/ -. The alleged delivery order was endorsed over to the complainant by the appellant and it was arranged that the delivery would be taken on 25-6-1947 and the complainant would send one of his men to the place wherefrom delivery was to be taken, where the appellant would be present. Although the complainant's man went there to take delivery but the appellant could not be found. Thereafter the other partner of the complainant, namely, Hare Krishna, contacted the appellant on 2-7-1947. As the date for taking delivery was expiring on 3rd July, the appellant represented to the said Hare Krishna that he would get the delivery order extended by seven days and took the delivery order on that representation; thereafter the said Hare Krishna tried to contact the appellant several times but failed. On 10-7-1947 the appellant came to complainant's house and told that he was arranging delivery very soon. The complainant became suspicious and started enquiring about the matter and on enquiry it was found from the Disposals Office that no delivery order in question was at all issued and that the said delivery order was a faked one. The complainant then lodged the complaint upon which the appellant was charged under Section 420, Penal Code.
( 4 ) AFTER the complainant presented his complaint, the then Additional Chief Presidency Magistrate examined the complainant under Section 200, Criminal P. C. and sent the case to the Deputy Commissioner, Detective Department, for enquiry. Thereafter the charge sheet challan was received on 24-7-1948 against the appellant and another person under Section 420, Penal Code and the case was ultimately transferred to the file of a Presidency Magistrate, Mr. K. C. Ghosal for disposal. After hearing the appellant was convicted.
( 5 ) AGA
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