Judgement Key Points

ORDER :- These two revisions Nos. 1335 and 1427 of 1963 are directed against an order dated 31-7-63 passed by the learned Sessions Judge, Etawah, in Criminal Appeal No. 246 of 1963 setting aside the conviction and sentence passed against the applicants by a Magistrate First Class and remanding back the case to the Magistrate for holding an enquiry against the applicants for committing them for trial before the Court of Session.

2. The prosecution story in short is as follows :

A money order for Rs. 67.50 np. in favour of Bal Makund real elder brother of applicant Satish Chandra had arrived at Post Office Ajitmal. On 4-7-1962 Satish Chandra came to the Post Office, enquired about the money order and personating himself as Bal Makund demanded its payment. On the money order form he signed as Bal Makund. Applicant Jagat Narain also put his signature as a witness. On further enquiry, before the payment was made, Satish Chandra disclosed that he was not Bal Makund. Accordingly the payment of the money was withheld and a report was lodged with the police by the post master Ajitmal on which investigation followed. On completion of investigation both the applicants were sent up for trial under Sections 419 and 419 read with Section 109 I. P. C. respectively.

3. Sri B. L. Sachdeva, learned Magistrate Ist Class of Etawah, on assessment of evidence led by the parties held the applicant Satish Chandra guilty under Section 419 I. P. C. but gave him the benefit of Section 3 of the U. P. First Offenders Probation Act and released him after due admonition. He, however, convicted the applicant Jagat Narain under Section 419 read with Section 109 I. P. C, and sentenced him to fine of Rs. 55 and in default of payment of fine to undergo rigorous imprisonment for two months.

4. On an appeal filed by the applicants, the learned Sessions Judge went a step further and observed that "the learned Magistrate had committed an error of law in treating the case as a case of simple cheating by impersonation. In fact he has completely misconceived the case. The forgery part of the prosecution allegation was completely ignored. He had, in deciding this case, usurped a jurisdiction which he did not possess," and therefore, quashed the convictions, and sent back the case to the Magistrate with a direction that he should hold an enquiry for commitment proceedings.

5. Learned counsel for the applicants has argued that the order passed by the learned Sessions Judge directing the Magistrate to hold committal proceedings is wholly unsustainable in law, because, in the circumstances of the case, it was obvious that the applicants had committed no offence. Learned counsel contends that there was neither any wrongful gain to any party nor wrongful loss caused to some one else and there being no dishonest intention on the part of the applicants they could not be held responsible either for the offence alleged to have been proved against them by the learned Magistrate or for the offences under Section 464 or 467 I. P. C. I find force in these contentions.

6. Satish Chandra is admittedly a boy of about 14 years and is real brother of Bal Makund in whose favour the money order had arrived at the Post Office. Bal Makund has stated that he had authorised his brother to receive the money order and registered communications which might come in his favour and that they were personally known to the Post Office staff.

7. Satish Chandra in his statement before the Magistrate has asserted that he had gone to the Post Office for taking a post card and he was informed by the Post Master that a money order had come in favour of his brother Bal Makund. Thereupon he asked for its payment and wrote on the form the name of his brother Bal Mukund and wanted to add further that he was Satish Chandra his brother, but meanwhile the form was snatched away by the Post Master.

8. Applicant Jagat Narain stated that he only signed his name on the form as a witness identifying Satish Chandra but he did not

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