Sailendra Nath Mitra Vs. the State

G.N. Das, J.

1. The Rule was issued by Mitter J. and Guha Ray J. for quashing the commitment of the petitioner on the ground that there is no evidence to go to the jury.

2. At the hearing of the Rule the learned Judges differed in their opinion. In view of such difference of opinion, by an order of the learned Chief Justice dated 21-12-1953 the case was directed to be placed before me. I have now heard learned advocates for the parties.

3. The prosecution case has been fully set out in the judgment of Guha Ray J. Originally seven persons the petitioner Sailendra Nath Mitra, Barin Ghose, Fazlul Karim, Dhiren Dutt, shib Sankar Ghose, Kalipada Sen Gupta and Kamakshya Mohan Maitra were put on their trial on a charge of conspiracy under Sections 120B/467/419/471, Penal Code.

4. By an order dated 10-12-1951 the accused Kamakshya was tendered a pardon under Section 337, Criminal P. C. Pazlul Karim and Kalipada Sen Gupta absconded during the course of the trial Ultimately by an order dated 25-6-1953 Dhiren Dutt was discharged as in the opinion of the court there was not sufficient evidence for committing him to the Court of Sessions. By the same order the Magistrate directed that the petitioner Sailendra Nath Mitra, Barin Ghosh and Shib Sankar Ghose be committed for trial to the Court of Sessions.

5. The charge against the petitioner is that the petitioner between 20-12-1951 and 12-1-1952 at Calcutta with Pazlul Karim, Kalipada Sen Gupta and others agreed to do or cause to be done illegal acts by illegal means to wit, forgery of valuable securities, Exts. 6 and 12, punishable under Section 467, Penal Code, cheating by false personation punishable under Section 419, Penal Code and false personation of Phanindra Mohan Maitra P. W. 2 and Ramendra Narayan Bagchi P. W. 3 punishable under Section 82, Registration Act and that the said acts viz. forgery, cheating by false personation and false personation were done in pursuance of the said agreement and that you thereby committed an offence punishable under Section 120B,Penal Code and within the cognizance of the High Court Sessions, Calcutta.

6. The charge is, therefore, one of conspiracy to commit a forgery or to cheat by false personation, or to procure registration of a false document. The conspirators are said to be the petitioners Sailendra Nath Mitra, Fazlul Karim, Kalipada Sen Gupta and other persons.

7. The substantiate a charge of conspiracy the prosecution must prove the agreement between two or more persons to do an unlawful act or a lawful act by unlawful means. Such agreement may be proved by direct evidence or inferred from other proved facts. But the inference of fact may be drawn only when the circumstances are such as to be incapable of any other reasonable interpretation. The law requires specific proof against each of the conspirators participating in a particular design to do a particular criminal thing. The object of the conspiracy must be proved as laid.

8. I have examined the evidence in the light of the above principles of law. In my opinion there is no direct evidence that the petitioner agreed with Pazlul Karim, Kalipada Sen Gupta and others to forge the promissory note or the mortgage bond or to falsely personate Phanindra or Ramendra.

9. The evidence of the approver Kamakshya is that the petitioner told Kamakshya that the latter would not stand any risk if the proposed forgery was made. This evidence has to be read with what preceded it; so read it appears that there was a previous arrangement to forge the two documents in question. There is no suggestion that the petitioner took any part so far as the previous arrangement is concerned. The approver Kamakshya further says that he took time to think and came away. There is no direct evidence that the petitioner suggested the forgery of the two documents or false personation of the executants of the said documents or committed any of the said offences. There is no evidence that Kalipada Sen Gupta or other persons who are said to have forged or falsely personated the executants of the said documents were known to or had any conversation with the petitioner at any stage.

10. It must be remembered in this connection that the mortgagee has not been produced by the prosecution. It was suggested that he might be produced in the course of the sessions trial. But the question is whether on the evidence, as it is, it is possible to say that there is a 'prima facie' case against the petitioner. It must also be noted that Dhiren Dutt, the alleged broker of the petitioner, has been discharged by the committing Magistrate on the ground that there is no sufficient evidence against him. Kamakshya in his deposition has further admitted that Kalipada Sen Gupta was known to him from before. Information as to the identity of the other person falsely personated who forged the signature of Ramendra, the latter, has not been disclosed. No witness other than Kamakshya has implicated the petitioner. The facts referred to in the judgment of Guha Ray J., as the learned Judge himself points out in his judgment, merely show that it is a case resting mainly on the evidence of the approver Kamakshya which receives confirmation from other sources at certain points of the narrative. It has not been suggested that the confirmation is in regard to any matter directly affecting the petitioner.

11. To bring home the charge to the petitioner the circumstances affecting the petitioner mustbe such as to be incapable of any reasonable interpretation other than the guilt of the petitioner as a conspirator. The evidence on record and the circumstances of the case are, in my opinion, Insufficient to that end. They are not inconsistent with the view that the petitioner is innocent of the charges laid. It is true that the petitioner negotiated the loan on certain terms and that the petitioner was likely to be benefited by the loan transaction. But the above facts do not, in my opinion, involve the necessary inference that he was a party to the forgery or false personation.

12. My conclusion, therefore, is that there is no 'prima facie' case against the petitioner in regard to the offences with which he has been charged. In such circumstances the High Court can quash the criminal proceeding under Section 215, Criminal P. C.

13. It is, therefore, not necessary to decide the question on which the learned Judges differed in their opinion, namely whether a commitment resting on the uncorroborated testimony of an approver raises a question of law justifying an interference by the High Court under Section 215, Criminal P. C.

14. The commitment of the petitioner on the charges as laid against him is, therefore, quashed. The Rule is accordingly made absolute.

15. The petitioner is discharged from his bail bond.

16. Let this order be sent down as early as possible.