JUDGMENT

Agarwal, J - This is an application in revision under Section 435, Criminal P.C., against an order of a Magistrate acquitting the opposite parties, Imtiaz Ahmad and Mushtaq Ahmad. The applicant was the complainant. He applied in revision against the order of acquittal, which was passed on 23rd December 1940, so the learned Sessions Judge of Lucknow who summarily rejected the application. The facts giving rise to this application are is follows: One Haji Mohammad Ismail was retired jemadar of the Chief Court. He had a sister Mt. Sikandar Begam and first cousin's daughter of Mt. Hydri who was married to the accused Imtiaz Ahmad. This accused is also the grandson of Nawab Begam who was the sister of Lokmanuddin Khara, Mt. Sikandar Begam's husband. The other accused Mushtaq Ahmad is the uncle of Imtiaz Ahmad. Mt. Sikandar Begam went to Mecca in the year 1929 but before going there she made a will on 21st March 1929, under which she gave one kothi No. 21, Clyde Road, to Haji Mohammad Ismail and a house to the son and daughter of the accused Imtiaz Ahmad. She made a waqf of one-half of kothi No. 20, Clyde Road, and appointed Haji Mohammad Ismail its mutawalli. Mt. Sikandar Begam did not return to India from the pilgrimage and died in Mecca. Haji Mohammad Ismail sold kothi No. 21 in 1935 for Rs. 26,000 and out of the proceeds he made a fixed deposit of Rs. 10,000 in the bank and purchased postal cash certificates of the face value of Rs. 10,000. He suffered from some kind of heart disease and he was very ill in October 1936. He had made a complaint on 28th October 1936, against three persons, the present two opposite parties and one Pandit Sheo Narain Bajpai advocate. The prosecution case is that Imtiaz Ahmad told Mohammad Ismail on 13th October 1986 that he had wired to his uncle Mushtaq Ahmad who was a sub-inspector and in service in Sultanpur, to come to Lucknow where Mohammad Ismail and Imtiaz Ahmad lived, that when Mushtaq Ahmad came he and Imtiaz Ahmad told Mohammad Ismail that it was in the interest of his wife Zubaida Begam to withdraw all the money from the bank and the post office and invest it in some property. The next day that is on 14th October 1936, they again impressed on Mohammad Ismail the desirability of investing the money in some property and the latter agreed to follow their advice. On 25th October 1936, all the three accused, persuaded Haji Mohammad Ismail to let them go and bring the money from the bank and they accordingly went to the bank but the bank refused to give the money as it was in fixed deposit. They thereupon induced Mohammad Ismail to have postal certificates cashed and accused 3, Pandit Sheo Narain advocate dictated a letter of authority in favour of Imtiaz Ahmad and it was written by Mushtaq Ahmad. One Nadir Ali an employee of the post office was sent for, and he signed that authority and the three accused and Nadir Ali and one Abdul Jabbar went to the post office but the postmaster of the Chief Court post office told them that he had not sufficient money with him and they should come the next day. Accused 1 cashed the certificates on 16th October for Rs. 8625. Though ah assurance had been given to Mohammad Ismail that the money would be brought to him, accused 1 took it to his house. Abdul Jabbar informed Mohammad Ismail of it and he at once went to the house of Imtiaz Ahmad. The latter was not found but his wife handed over the money through one Dr. Mahmud Ali to Haji Mohammad Ismail but when the notes were being counted, accused 1 turned up and snatched them away.

2. A report was made by Haji Mohammad Ismail on 16th October 1936 at 3-45 P. M. He followed it up with a complaint on 28th October 1936. He was examined on 10th November 1986 but he died on 21st November 1936. After his death his wife's brother Mohammad Yusuf Ali prosecuted the accused, and the City Magistrate, Mr. Charles discharged Pandit Sheo Narain, advocate, and Mushtaq Ahmad but framed charges under Section 406 agains