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TMI Blog1968 (2) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused were acquitted. Accused Nos. 2 and 3 were convicted. They were sentenced in the aggregate to rigorous imprisonment for two years and were imposed fines totaling ₹ 15,000 each. The convicted accused appealed to the High Court. The State Government also appealed against the acquittal of accused No. 4. The High Court maintained the conviction and sentences of accused Nos. 2 and 3 and further set aside the acquittal of accused No. 4 who on conviction was sentenced to rigorous imprisonment for two years but no fine was imposed on him. The convicted accused have now filed these appeals by special leave. 2. The case started on the complaint of one Bansilal who was a partner in a firm Jawarmal Ramkaran of Kalbadevi, Bombay. It had f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m would be handed over as security. For a time things went on quite regularly and honestly. As many as 110 hundies and railway receipts were tendered and the liability was also met. This involved a sum of no less than ₹ 1,20,000. Later, however, the R. R. Firm began to inflate its invoices and to draw hundies for exaggerated amounts. When these hundies and the invoices reached the S. S. Firm they were returned. The hundies and the railway receipts were then returned and the Bank got back the goods from the railway authorities. The parcels were opened and surveyed. It was found that the goods represented by the invoices were not in the parcels and that cloth very much less in value was actually despatched. In other words, it was appare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese happenings. His acquittal was allowed to remain because the State did not appeal against his acquittal. Accused No. 4, who was only a clerk, was also acquitted by the court of trial on the ground that he had made no representation to the J. R. Firm and thus was not guilty of any offence. It may be stated here that no charge of conspiracy was made. If it had been, other considerations might have applied. Since accused No. 4 was directly charged with cheating some representation on his behalf had to be made out. It is on this point that the court of trial and the High Court have differed, the court of trial having held that there was no such representation and the High Court, taking the view, on evidence, which we shall consider presentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the amount was deposited. When the amount was deposited the matter was heard again. The High Court found it difficult to reduce the sentence. It returned the balance of the amount after retaining the gross amount of fine imposed upon accused No. 2 in the case. Mr. Nuruddin Ahmed contends that the High Court should have reduced the sentence and taken over the money which had been deposited for payment to the complainant. He contends also that the High Court was in error in deducting the amount of fine when no question of reduction of sentence was to be considered. We shall say something about the procedure adopted in the High Court presently. 6. We may begin first by considering the case of the fourth accused. Evidence shows that he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by the fourth accused was found to be inflated. The bad invoices were apparently written by someone else and he was only instrumental in taking them to the J. R. Firm as the servant of the R. R. Firm. Even if he wrote some of the bad invoices or the pay-in-slips some more evidence was needed before it could be held that he was instrumental in cheating the J. R. Firm. On these grounds he was entitled to an acquittal and the High Court erred in setting it aside in the appeal of the State Government. We accordingly allow his appeal and order his acquittal. He need not surrender his bail which was granted by this Court. The bail bond is canceled. 7. This brings us to the question of the sentence of the remaining accused, viz., accused Nos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey were in a position to meet the liability because the insolvency which supervened clearly indicates that they were not in possession of funds. It is their insolvency or lack of funds which must have induced them to adopt this method. 8. Having, therefore, held that the offence against them is proved we are now to consider the question of sentence in the case. We pointed out that the High Court adopted an unusual course in the case. In fact a similar course was suggested to us at the hearing by submitting that we should increase the fine and reduce the sentence to the period undergone. In other words, the accused were adopting the same method which they did in the High Court, namely, that they will pay the amount which they have wrongl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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