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TMI Blog1954 (4) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... d Burnpur near Asansol. The words were executed in June and July, 1942, an sums amounting to ₹ 1,74,000 were paid to S. K. Dutt on account therefore. The case for the prosecution is that this amount was in excess of what was due to him for works actually done, by about ₹ 56,000, and that with a view to avoid the refund of this excess, the appellants entered into a conspiracy, under which S. K. Dutt was to prefer a claim for construction of roads purported to have been carried out in execution of an order which R. W. Mathams was to issue; P. C. Ghose was to measure the road so claimed to have been constructed, and the bill was to be passed for an account exceeding what had actually been paid. In accordance with this scheme, S. K. Dutt wrote Exhibit 19 on 28th January, 1943, claiming payment for additional work within the store dump area ; R. W. Mathams passed an order bearing date 7th July, 1942, Exhibit 10, placing an order with S. K. Dutt for the construction of roads; P. C. Ghose prepared the final bill, Exhibit 6, for ₹ 1,89,458-14-0 on 15th March, 1943, and the same was passed by R. W. Mathams. It is stated for the prosecution that the roads alleged to have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detail. 5. One of the grounds argued by the appellants in the Federal Court was that the requirements of section 257 of the Criminal Procedure Code had not been complied with, and that there was accordingly no fair trial. The facts on which this objection was based are these : The complaint was instituted on 7th June, 1945. The examination of witnesses on the side of the prosecution commenced on 6th September, 1945, and it was concluded after undergone several adjournments on 29th March, 1946. On 27th March, 1946, the appellant, J. K. Bose, filed a list of 15 witnesses to be examined for the defence. Most of them were person who are alleged to have given the receipts, Exhibit 27 series, acknowledging payment of money for construction of works done by them. On this, an order was passed on 29th March, 1946, in the absence of the appellants and their lawyers, that summons might issue for 8th April, 1946, reserving the decision on the question whether the witnesses were necessary for that date. Summons was not sent in the manner prescribed by section 68 and 69 of the Code but by ordinary post. When the case was taken up on 8th April, 1946, it was found that two of the envelopes had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice should take steps to secure the attendance of those witnesses, except one who was in East Pakistan. The list was accordingly filed on 8th May, 1951. Therein, it was stated that out of the 15 person whose names were mentioned in the list, dated 27th March, 1946, it was possible to get the address of only six persons, and that as for the rest, it was not-possible to trace their whereabouts, as they had mostly migrated to Asansol at the time when the works were being executed and has since left that place. Out of the six persons whose addresses were given, B. C. Mukherjee and R. K. Paul, were served and examined in Court. A third witness was given up, as he was a handwriting expert. The fourth witness Liakat Hossain, had migrated to East Pakistan, and no process could be issued against him. Another witness, Sanichar Mistry, had died in the hospital. As regards the sixth witness, Sashinath De, the endorsement on the summons was that he had left the place, and that it was not known to which place he had gone. The learned Judges who heard the appeal on remand held by their judgment, dated 6th September, 1951, that on the evidence both the charges of conspiracy and bribery had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 27th March, 1946, was not all fictitious is borne out by the fact that two of them actually gave evidence at the re-hearing and a third had died in the hospital. When some of the witnesses mentioned in the list are proved to be real persons, there are no materials on which it can be affirmed that the others are fictitious persons. Indeed, the evidence of the two witnesses, Mukherjee and Paul, is that they had seen some of those sub-contractors whose names appears in Exhibit 27 series, actually at work there. The learned Judges have rejected their evidence on the ground that they are not men of status; but on the question whether the appellants had made payments to the sub-contractors under Exhibits 27 series, the best evidence can only be of those persons. It may be that the two witnesses are not speaking the truth when they say that they saw the other persons mentioned in the list working on the roads, and it is possible that those persons are fictitious. But it is equally possible that they are real persons, whose whereabouts could not be traced in the exceptional circumstances which had intervened. As admittedly three of them are real, it would be unsafe to act on the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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