Full Judgment
1. It seems to us that this case has been tried without a proper appreciation of the elements which are necessary to be established in order that the conviction of the accused can be justified. The entries according to the prosecution were false entries wilfully made by the accused who was the Gomasta of the complainant's firm. The accused's defence was that the entries were merely in the nature of adjustment entries, that the accused's father Benode Behari Bazra was a partner of the complainant's firm and that the entries were made in the books of the complainant's firm under the direction and authority of the partners who constituted that firm. One of the points therefore which the learned Magistrate had to determine was whether the case which the accused set up, namely, that his father was a partner in the complainant's firm was made out or not was not clearly proved, the conviction should be set aside. On that point, there is no finding at all in the judgment of the learned Magistrate. The evidence which is there on the record has been placed before us and on a consideration of that evidence we find it exceedingly difficult to hold that it has been sufficiently proved that the accused's father is not such a partner. One of the witnesses, P.W. 4, no doubt, has attempted to give positive evidence of the fact that the accused's father, although he was a partner in the complainant's firm previously has ceased to be so. But then, he has also in his evidence referred to certain circumstances which make it highly doubtful whether his statement on this point can be accepted at its face value. Another witness, P.W. 7, while making a positive statement to the effect that the accused's father was formerly a partner in the complainant's firm, that is to say, up to 1336 B.S., has stated further that he cannot say definitely whether he has ceased to be such a partner or not. He has also said that the profit accounts after 1336 of the complainant's firm have not yet been adjusted. Upon this state of the evidence, it would not be possible to hold with any degree of certainty that the fact that the accused's father was not a partner in the complainant's firm has been sufficiently proved.
2. The other question which arises in this case is whether the accused's defence to the effect that the entries were made under the direction or authority of the members of the complainant's firm is true or not. So far as this matter is concerned the learned Magistrate has disposed of it in his judgment by saying that it was the accused's defence and therefore it was for the accused to prove it and that he has not given any evidence in support of it. That however is not the true position. That being the defence, which the accused had taken and had suggested in the course of the cross-examination of the prosecution witness it was the duty of the prosecution to call some of the partners or at least some responsible person as a witness and to give a positive denial of the allegation which the accused put forward. We are of opinion therefore that on this state of the evidence it is not possible to uphold the petitioner's conviction. The Rule is made absolute and the conviction and sentence passed on the accused are ordered to be set aside. The accused will be discharged from his bailbond.