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Judgment
Umamaheswaram, J.
Apeal No. 312 of 1952 :
This appeal is brought by the 1st defendant against the judgment and decree obtained by 5 respondent herein in O.S. No. 9 of 1947 on the file of the District Court, Bellary. The suit the filed by the respondent against the appellant rein and other executors under the will. of one kappa Rao for accounts. A preliminary decree was passed on 15-3-1949 directing the executors render an account of their management of the ate of late Akkapparao of Bellary from 26-1-1941, the date when they assumed management (sic)28-3-1945, the date when they handed over (sic)rge to the plaintiff.
A Commissioner was appointed by the District Judge to examine the accounts, and he subjected a report. Objections were filed against report by the parties and a final decree was (sic)ssed by the District Judge directing the appelant herein under Cl. (1) to pay the respondent a sum of Rs. 22,891-8-0 with interest on Rs. (sic))25-13-0 at 6 per cent per annum from 17-1-7 (date of plaint) to date of realisation and (sic) costs. The 1st defendant has consequently (sic)ferred the appeal as against the said decree.
Sri G. Venkatrama Sastri, the learned vocate for the appellant raised the following (sic)tentions : (1) that the payments of Rs. 4,000/-, Rs. 2,000/-, Rs. 7,500/- and Rs. 100/- made by appellant on 18-4-1939,25-6-1939, 6-6-1940 and (sic)1941 respectively should have been duly (sic)en credit to by the Commissioner and the (sic)rt below in taking accounts; - (2) that the (sic)enses of Rs. 1,693-13-0 incurred by the appellant and the other executors for the cases at (sic)Hras should have been allowed (3) that the appellant ought not to have been made liable (sic)ay a sum of Rs. 332-2-0 as representing the (sic)isations of paddy income from Illur lands; that the Court below was wrong in allowing rest prior to the date of the passing of the (sic) decree; and (5) that counter interest should e been allowed on the sum of Rs. 10,600/-(sic)sited by him on 24-11-1950. We shall consider (sic) these questions in seriatim.
It is clear from the regularly maintained (sic)unt books (i.e., daybooks and ledgers) of (sic)apparao that the payments pleaded by the appellant are not shown therein. According to accounts of late Akkapparao the sum that payable by the appellant prior to the death Akkapparao was Rs. 16,188-10-0. D.W. 10. exacted on behalf of the appellant, was one of the (sic)s maintaining Akkapparao''s accounts, and (sic)tated that all the accounts were maintained by him correctly and that even after the death of Akkapparao, the sum of Rs. 16,188-10-0 was being carried forward in the accounts.
If the case of the appellant, viz., that he made the payments, is true, they must have been duly entered in the accounts of late Akkapparao, his father-in-law, and the omission leads us to the conclusion that the payments alleged to have been made by the appellant are not true. The evidence also discloses that the Relationship between the father-in-law and the son-in-law was very cordial and that the father-in-law appointed the appellant as an executor out of confidence reposed in him. It is therefore unlikely that if the appellant had made payments of several sums as alleged by him, his father-in-law would have failed to duly enter them in his regularly maintained accounts.
There are three other clinching circumstances which establish beyond doubt that the appellant''s story as to payments is absolutely false. It appears from the entry marked as Exhibit A-28 (a) dated 11-11-1940 that a patti was sent by Akkapparao to the appellant. A few days prior to that, date, Akkapparao had debited a sum of Rs. 810/- as being due by his son-in-law in respect of the money transactions he had with him. D.W. 10 admitted that there was a debit entry in the accounts of Akkapparao as having been incurred "for sending the patti to the appellant. Curiously, the appellant denied that he ever received such a patti. We are not inclined to accept his evidence that the patti was not received by him.
We are inclined to take the view that he has deliberately suppressed the patti as it would prove beyond doubt that the payments alleged by him are not true. This aspect of, the case is discussed by the District Judge in paragraph 5 of the judgment, and we are inclined to agree with him that an adverse inference should be drawn as against the appellant for the non-production of the patti referred to in Exhibit A-28 (a).
The next circumstance adverted to by the District Judge in paragraph 6 is very significant. An application was filed by Yellamma Bai, the 4th wife of Akkapparao, that a property guardian should be appointed for Tier minor son. and that the appellant was not fit to be an executor as he was indebted to Akkapparao in a sum of Rs. 16,000/- and odd. A counter was filed by the appellant to that petition and it is marked as Exhibit A-37. It is surprising that the appellant did not specifically deny that allegation.
There was only a general allegation in the counter denying the truth and accuracy of the statements made in the petition. The appellant did not state in the counter the several payments now pleaded by him. If, as contended by the appellant, he had made payments in large sums of money and only a small sum was due from him, the first thing that he would have mentioned in the counter would have been about the payments. The omission to make a reference to the payments throws considerable doubt on the truth of his case as to the payments.
In O.P. No. 198 of 1944 on the file of the High Court of Madras, auditors were appointed to report as to the extent of indebtedness, of any of each of the executors. It is admitted by the appellant that all the account books of late Akkappa Rao were produced before the auditors and explanations were called for from them. He also admitted that he gave an explanation in regard to the sum of Rs. 5000/- and odd realized by him from Mukund Rao.
The Auditors'' report Ex. A-17 does not show that. appellant ever represented to the auditors that he made the four payments to Akkapparao and that his indebtedness as shown in Akkappa Rao''s accounts was not true. He, however, deposed that he made an oral representation to the auditors and that it was not reduced by them to writing. We have no hesitation in rejecting his evidence as to oral representations.
The records make it abundantly clear that as soon as the auditors'' report was submitted, the executors relinquished their offices and that Mr. Justice Kunhiraman appointed the Administrator-General of Madras, the respondent herein, to manage the estate. As aforesaid, the auditors were expressly appointed to ascertain the indebtedness of the executors to the estate and it is really amazing as to why, if the payments were true, the appellant did not draw their attention to those payments by the production of his account books.
We are not convinced with the explanation of Sri G. Venkatrama Sastri, the learned Advocate for the appellant, that as only the accounts of Akkapparao were being audited, it was not necessary for the appellant to produce his account books and satisfy the auditors that substantial payments were made by him and that only a small balance was due from him. Both the above aspects were discussed by the learned District Judge in paragraph 6 of his judgment, and we are inclined to agree with his conclusion that if the payments were true, the appellant would have mentioned them in his counter Exhibit A-37 and also before the auditors.
We shall now proceed to discuss the documentary and oral evidence produced on behalf of the appellant to evidence the payments. There can be no doubt that the burden of proving the payments lay heavily on the appellant. There are no receipts or vouchers produced from late Akkappa Rao to evidence the payments. The account books of Akkappa Roa, as already stated at the outset, do not contain any entries as to these payments. The only question is whether the account books produced by the appellant can be relied on as evidencing the payments.
We have carefully examined the ledger and the day book produced by the appellant and marked as Exhibits B-9 and B-10. We have been taken through the several entries relating to the payments as also the various corrections and alterations made by the appellant in those account books. The District Judge has, in a very careful judgment, discussed the genuineness of those items in paragraphs 8 to 13 of the judgment. We do not think it is necessary to repeat the several alterations, corrections and interpolations made by the appellant with a view to get over his liability.
As regards the first item of Rs. 4,003-13-0 it is clear that ''O'' digit in both the ledger and in the day book is altered into ''4''. In order to support the case of the appellant that he made the payment of Rs. 4,000/- to his father-in-law, he made the necessary alterations in regard to the credit entry of Rs. 900/- in his mother''s account. Similarly in regard to the entry of Rs. 2,007-10-0 the first digit (O) is altered into ''2''. Attentions are effected on the credit side as also on the debit side at pages 106, 107 and 108 of Exhibit B-10(4).
In regard to the third entry of Rs. 7,503-14-0, we are inclined to think that the prior entry has been erased and it was over-written. on that place. The appellant who was cross-examined in regard to the several corrections, has n(sic) given a clear and consistent version. In regard the second entry of Rs. 2,007-10-0, he stated the he did not make ''O'' into (2) which is obvious false. He was also obliged to admit by further cross-examination that he changed'' ''O'' into (sic)
His explanation was that a there were mistakes totalling, he made changes then and there, perusal of the entries shows that his version absolutely false. As pointed out by the District Judge, the interpolations and the addition of ne(sic) words in the several entries appear to be different ink. We are not convinced that the additions, alterations and corrections in the account books were made then and there or on the Saturday as contended by the appellant.
The fact that so many corrections are. found not only in the day book but in the ledger a seems to indicate that falsification of account was made much later, possibly after his d(sic) charge as an executor, with a view to get o(sic) his liability to the estate. The fact that he s(sic) a copy of the counter showing the payments ((sic)hibit A-12) in 1946 does not show that the payments were made during Akkapparao''s life ti(sic) or that manipulations were not made in his counts, Exs. B-9 and B-10, as contended by appellant. It is also significant that Exhibits and B-10 were not produced in Court till 1 March, 1949, the date of the preliminary decree.
We shall next proceed to consider oral evidence adduced on behalf of the appellant to evidence these large payments. The case the appellant is that the first and third payment of Rs. 4,000/- and Rs. 7,500/- were sent throw his brother''s son examined as D.W. 6. According to him he borrowed the first sum of Rs. 4,000/-from his mother. In regard to the sum of 7,500/- his case was that Rs. 5,500/- was borr(sic)ed from his sister-in-law Dondu Bai and 2,000/- from Durga Prasad.
There is no evidence to corroborate his s(sic)ment that he borrowed those sums excepting unreliable entries in his account books, mother and sister-in-law are not examinee support his version. If D.W. 6, his brother''s had made payments of such large sums to kapparao, he would have normally obtained (sic)ceipts or vouchers from him. No such record or vouchers are filed in the case. In any even he would have insisted upon Akkapparao main-entries of those two payments in his regular maintained accounts.
As already pointed out, there are no entries in the accounts books of Akkapparao. The evidence of D.W. 6 has been rejected by the Commissioner and the District Judge we are not inclined to place any reliance or evidence. In his cross-examination, he stated he remembered about the payments inasmuch he paid the amounts and inasmuch as there entries of the two payments in his accounts are not prepared to believe that he would remembered the payments after a lapse (sic) many years.
That he has no regard for truth is from his statement in the cross-examination the did not know if Akkapparao had maint accounts. When he was confronted with his signature in the accounts of Akkapparao had to admit that Akkapparao maintaine counts and that he borrowed monies on be of his uncle from Akkapparao. Excepting mailable and interested testimony of D.W. 6 nd D.W. 9 the appellant herein, there is no other evidence to prove the first and third payments.
With regard to the second payment of Rs. 2,000/- the case of the appellant is as follows: Sri Sethu Rao, advocate of Gooty, rehired Rs. 2,000/- for purchasing a car. Akkapparao asked the appellant to pay this sum and he advanced the amount to him and obtained promissory note in the name of Akkapparao, as father-in-law. So, according to him, the payment of Rs. 2,000/- to Sri Sethu Rao should be even credit to. The Advocate, Sri Sethu Rao, has not been examined in the case..
His clerk was examined as D.W. 1 and he deposed that the amount was brought from Bel(sic)ry i.e., the place of Akkapparao. His admission in the cross-examination gives a go(sic) to the appellant''s case that the money as sent by the appellant. The brother''s (sic)n of the appellant, examined as D.W. 5, (sic) doubt stated that the amount of Rs. 2,000/-is found by the appellant. We are not inclined accept his interested testimony, and we agree the District Judge as also the Commissioner at his evidence should not be relied on.
In this connection, it might be mentioned at the day-book maintained by Akkapparao (sic)OWS that the sum of Rs. 2,000/- was lent by Akkapparao about 20 days after the alleged payment. In the day-book, the appellant is not creed with the sum of Rs. 2,000/- and Shri Sethu (sic)o is not debited with the said sum. There is (sic)ly a debit of Rs. 2,000/- to Sri Sethu Rao. We therefore not inclined to place any reliance the interested evidence of D.Ws. 1, 5 and 9 (sic)d hold that the second payment of Rs. 2,000/-(sic)s made by the appellant as pleaded by him.
In regard to the fourth payment of Rs. (sic)/- also, there is no reliable evidence.
In the result, we agree with the District judge that all the four payments relied on by appellant are not duly proved. We reject the appellant''s case in regard to those payments.
In regard to the second contention that; expenditure of Rs. 1,693-13-0 was incurred by appellant for the cases at Madras, he relied on an account book marked as Exhibit A-15. (sic)s significant to note that the expenses were entered in the regularly maintained accounts (sic)ting to the estate of Akkapparao. D.W. 10 (sic) constrained to admit in the course of his cross-examination that Exhibit A-15 was not (sic)wn to the auditor because it was written up (sic)r the audit.
This admission of D.W. 10 makes it abruptly clear that it was not maintained in the (sic)nary course of business, and written regular-(sic) put was written at a stretch after the audit, evidence.of the appellant as D.W. 9 that Ex(sic)t A-15 was written as and when the expen(sic) were incurred cannot be true in the face of (sic) 10''s admission. The entry dated 8-11-1942 he end of the book i.e., after the entry dated 1945 also convinces us that the account book not maintained in the ordinary course of (sic)ness or written regularly. If Exhibit A-15 is excluded from the evidence, there is no other independent evidence on half of the appellant to prove the various ex(sic)ses incurred by him for attending to the liti(sic)on on behalf of Akkapparao''s estate. There (sic) doubt general evidence that on a number occasions he had to go along with the other (sic)utors to consult his advocate at Madras and to file account books etc. The mere fact that the Court below has allowed the expenses of Vittoba Rao, the 2nd defendant, under Exhibit B-13 does not prove that the appellant had incurred similar expenditure.
It may be that the appellant had gone to Madras in connection with the Original Petition or with the Civil Miscellaneous Appeal that was filed against him in regard to guardianship proceedings. But, in the absence of any reliable and definite evidence as to the actual expenses incurred by him, we are unable to allow his claim under this head. Moreover, as pointed out by the District Judge, the appellant ought to have obtained the directions of Kunhiraman J. in O.P. No. 198 of 1944. This point is discussed by the District Judge in paragraph 22. In the circumstances, we have no alternative but to reject his second head of claim.
The third contention raised by Sri G. Venkatarama Sastri that his client ought not to have been made liable to account for the profits of Illur lands. There is no substance in this contention. The case of the appellant is that Though he collected the makta of 8 thooms from Illur lands, he did not enter it in the estate accounts but handed over the paddy to the widows of Akkapparao, other than Yellamma Bai. Excepting his interested testimony, there is no corroboration that he delivered paddy to the widows.
The widows, as pointed out by the District Judge have not been examined to prove his case. Apart from that, under the provisions of the. will Exhibit A-2, the widows were not entitled to be provided with paddy. While we agree with the District Judge that it is not proved by any reliable evidence that the paddy was delivered to the widows we are also inclined to take the view that even if the paddy had been delivered, it would not validly discharge the executor, from the liability to account. We are therefore inclined to hold that the appellant was rightly made liable to pay Rs. 332-2-0 under the third head.
Sri G. Venkatarama Sastri, the learned advocate for the appellant, strenuously contended that as the suit against the appellant was one for accounts, he ought to be made liable to pay interest only from the date of the final decree and not for any period anterior thereto. Though this objection was raised in paragraph 21 of the 1st defendant''s objections to the Commissioner''s report, it does not appear from the judgment of the District Judge that this point was pressed on behalf of the appellant.
The only question that appears to have been argued (Vide paragraph 16 of the judgment) was as to the rate of interest to be allowed in favour of the respondent. As the liability to pay interest is a pure question of law, we permitted the learned advocate for the appellant to urge this point. Having given our careful and anxious consideration, we are unable to agree with him that in regard to the sum due by him to Akkapparao, he is not liable to pay interest from the date of his death i.e., the date when he took up the position of an executor.
Section 87 of the Trusts Act (hereinafter referred to as the Act) enacts that where a debtor becomes the executor, he must hold the debt for the benefit of the persons interested therein. Section 95 provides that the person holding property in accordance with any of the preceding sections of this Chapter (i.e., including S. 87) must, so far as may be, perform the same duties, and is subject, so far as may be, to the same liabilities and disabilities, as if he were a trustee of the property for the person for whose benefit he holds it.
A reading of the Ss. 87 and 95 makes it abundantly clear that the appellant, who was appointed as an executor, is liable to account as a trustee for the amount of the debt. Section 20 of the Act enjoins a duty on the trustee to invest the trust money on securities mentioned thereunder, where the trust property consists of money and cannot be applied immediately or at an early date to the purpose of the trust. If a trustee does not so invest the money and thereby commits breach of trust under the terms of S. 23, he is liable to pay interest as provided thereunder. Section 23 of the Act, in so far as it is relevant, is as follows :
A trustee committing a breach of trust is not liable to pay interest except in the following cases :
XX XX XX
(c) where the trustee ought to have received interest, but has not done so",
(d) where he may be fairly presumed to have received interest;
He is liable, in case (a), to account for the
interest actually received, and, in cases (b), (c)
and (d), to account for simple interest at the
rate of six per cent per annum, unless the Court
otherwise directs.
(e) Where the breach consists in failure to invest trust money and to accumulate the interest of dividends thereon, he is liable to account for compound interest (with half yearly rests) at the same rate.
(f) Where the breath consists in the employment of trust property or the proceeds thereof in trade or business, he is liable to account, at the option of the beneficiary, either for compound interest (with half-yearly rests) at the same rate, or for the nett profits made by such employment.
Sri R. Rajeswara Rao, the learned advocate for the respondent, contended that Cls. (c) to (e) are attracted, and that as the appellant wrongly withheld the debt and had the benefit of the money (the payments having been found to be false) and did not invest the trust money in the securities mentioned in S. 20, the respondent was entitled to interest at six per cent per annum. On the other hand, Sri G. Venkatrama Sastry sought to contend that Cls. (c) to (f) have no application to the case and that the appellant did not commit any breach of trust in not investing the money in approved securities. We are not inclined to accept his contention. As pointed out by the Supreme Court in Ratilal Panachand Gandhi Vs. The State of Bombay and Others, :
It is a well settled principle of law that trustees in charge of trust properties should not keep cash money in their hands which are not necessary for immediate expenses; and a list of approved securities upon which trust money could be invested is invariably laid down in every legislation on the subject of trust.
We are clearly of the opinion, on the facts of this case, that under the terms of S. 87 by reason of the appellant, a debtor, being appointed as an executor under the will of Akkappa Rao he held the amount of the debt as a trustee and was bound under the terms of S. 20 to invest the sum in approved securities, and that as he failed to do so, he was liable to pay interest under the terms of S. 23 from the date of his appointment as an executor, i.e., the date of the death of Akkappa Rao. In this view, the contention of the appellant that he is liable to pay interest on from the date of the passing of the final decree is untenable and consequently fails.
The next question is as to whether the appellant is liable to pay interest on the sum Rs. 1,693-13-0 from the date of the collection the amount of Rs. 5,450/- from Mukunda Rao. (sic) discussed supra, the appellant is not entitled claim the expenses of Rs. 1,693-13-0 as having been incurred on behalf of the estate and so I has improperly retained the capital sums belonging to the testator. The grounds on which a executor or an administrator may be charge with interest are set out in Williams on Execute and Administrators, 13th Edition, Volume II page 1074 in the following words :
There are two grounds on which an exactor or administrator may be charged with in rest: 1st that he has been guilty of negligence omitting to lay out the money for the benefit the estate. 2nd that he himself has made use the money or has committed some other misfeasance, to his own profit and advantage.
As a result of our finding on the second he of claim that he did not bring the sum collect from Mukunda Rao in the estate accounts a that he improperly utilised it for himself, he liable to pay interest on the said sum from date of the collection from Mukunda Rao. (sic) Court below has rightly calculated the inter from the said date and awarded a decree on the footing. The decree is consequently confirmee.
The further question that falls to considered is whether, in respect of the pad income realised by the appellant from Illur lands he is liable to pay interest from the several da(sic) of collection as decreed by the Court below had been held in Blogg v. Johnson, (1867)(sic) Ch A 225 (B) that the Court will not charge executor, who has been guilty of delay in counting, with interest on arrears of income paid by him. Sri G. Venkatrama Sastry stror(sic) relied on this case and contended that in rest of all the heads of claim against him, he was li(sic) to pay interest only from the date of the (sic) sing of the final decree. The head-note clearly out the point decided, and is in the following terms:
I was entitled to life income from the es(sic) of her husband, and died in 1861. A bill was by her executor, in 1862, against the execute her husband''s will, who had been his par in business, for an account of income due to estate : In 1863 accounts were directed. In a certificate was made, finding that a large was due from the husband''s executor:
Held, that he was not chargeable with : rest before the date of the certificate.
This decision is referred to in Williams on Ex(sic) tors and Administrators, 13th Edition, Volume at page 1075 and the following passage occu(sic).
The Court will not charge an executor, has been guilty of delay in accounting, with rest on arrears of income unpaid by him.
The scope and effect of the decision is unders(sic) by Lewin in his treatise on Trusts, 14th Edi(sic) at page 251 in the foot-note (f) in the folio terms :
But the Court is not in habit of giving rest on what may be found due for arrea(sic) income : (1867) 2 Ch A 225 (B).
Having perused the decision carefully, we are inclined to think that Lord Chelmsford, L. (sic) tended that the same rule of law applicable income should be applied to capital moni(sic) (sic)lebta realised but unaccounted for or uninvested (sic)y reason of laches of the executor. In the above (sic)lew, the respondent will be entitled to interest (sic)n the sum of Rs. 332-2-0 from 1-2-1945 and not from the respective dates of collection of the profits from Blur lands as decreed by the Court below. The decree of the Court below is modified only to this extent.
Reference was made by Sri G. Venkat(sic)ama Sastri to the decision of this Court in M. (sic)admanabharaju v. M. Satyanarayana Raju, Unreported decision of this Court in Appeal No. 14 of 1950, D/- 5-3-1957: 1957 Andh LT (NRC) (C), in support of the proposition that it is only after the final decree that any interest on profits should become payable if the possession (sic) the land allotted to the plaintiff has not been (sic)anded over.
It is unnecessary for us to apply this case dating to a Hindu Joint family as we are following the direct decision of the English Court (1867) 2 Ch A 225 (B), in respect of the liability of an executor in respect of income not properly accounted for. The decision of the Privy council AIR 1930 185 (Privy Council) , relating to a partnership action has no application to the facts of the present case in respect of the first two heads (sic) claim as the appellant is liable to pay definite (sic)d ascertained sums of money and no accounts (sic)ed be taken to determine the said sums.
The last contention relied on behalf of (sic)e appellant is that he is entitled to counter in-(sic)est on the sum of Rs. 10,600/- deposited by (sic)n for setting aside the first Commissioner''s re-(sic)rt and for giving him an opportunity to adduce (sic)dence. The ground of objection filed as against (sic)e Commissioner''s report is that the Commissioner erred in calculating interest upto the date his report on the entire sum and that he fail-(sic) to note that a sum of Rs. 10,600/- had been deposited by him in Court about a year ago.
It'' does not appear that this point was argument before the District Judge. Even in the memorandum of grounds of appeal to this Court, this (sic)nt has not been raised. From the records place before us, we are not in a position to come a definite conclusion that the payment was unconditional one and that the respondent (sic)s entitled to appropriate the same. From the (sic)er of Ramaswamy J. in C.M.P. No. 4136 of 2, we find that a direction was made that the count of Rs. 10,600/- in Court should be intended in proper securities. If the direction had been carried out and if respondent had drawn out the sum of Rs. (sic)600/- along with the interest thereon, he is (sic)nd to give credit to that sum and interest, if (sic), in execution out of the decree amount. We however, unable to hold on the materials (sic)ced before us that the sum of Rs. 10,600/- was conditionally paid to the respondent so as to (sic)tle the appellant to claim counter interest (sic)eon.
Subject to the modification indicated have, i.e., in respect of the interest due under third head of claim, the appeal fails and is (sic)issed with costs of the respondent. It is (sic)ed by the learned Advocates on both sides the modification in regard to interest (sic)unts to Rs. 43/-. To that extent, the decree of Court below is modified.
C.M.A. No. 76 of 1953 : This is an ap(sic) filed under S. 476-B of the Criminal Procedure Code against the order of the District Judge (sic)ting a complaint to be filed against the appellant under Ss. 193 and 196, I.P.C. It is found by the District Judge that the appellant has falsified the accounts with a view to get over his liability, and we have affirmed this finding in Appeal No. 312 of 1952. We are inclined to think that the provisions of S. 476-B, Cr.P.C., are complied with and that the Court below was right in directing a complaint to be filled.
In the result, we dismiss the appeal, but without costs.
C.M.P. No. 4453 of 1957 : This is an application to sanction prosecution of the respondent for fraud and cheating deliberately played by him. The allegations made in the affidavit disclose that as a result of the security bond directed to be given by the respondent not being duly registered, the respondent drew out the sale proceeds from Court. The conduct of the respondent is no doubt reprehensible, but we are not prepared to hold on the facts and circumstances of the case that he played any fraud or committed the offence of cheating so as to sanction prosecution. The whole trouble appears to have been caused by reason of the security bond not being registered by the negligence of the petitioner. The petition is consequently dismissed. There will be no order as to costs.
C.M.P. No. 4454 of 1957 : In view of the order passed in C.M.P. 4453/57, this application is dismissed. There will be no order as to costs.