Rampadarath Singh vs Emperor

Shearer, J.—The petitioner Rampadarath Singh has been convicted of cheating by Mr. Tajammul Husain, Honorary Magistrate of Patna City, and has been sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 100 or in default to undergo rigorous imprisonment for six months more. An appeal against this conviction and sentence has been dismissed by the Sessions Judge of Patna.

On 14th October 1939, one Imdadali Khan executed, and also registered, a deed of assignment conveying his rights under a decree, which he had obtained some time previously for a sum of between Rs. 7000 and Rs. 8000 to the petitioner. In the deed of assignment the consideration money was said to be Rs. 4000, and, according to Rampadarath Singh, this sum was paid to Imdadali Khan immediately after the deed was registered. Rampadarath Singh produced the receipt for the document granted to Imdadali Khan by the Sub-Registrar. This receipt bears the thumb-impression of Imdadali Khan and also an endorsement made by his karpardaz, Sadique Akbar, acknowledging the receipt of Rs. 4000 on 14th October 1939. According to Imdadali Khan and Sadique Akbar, on the other hand, the consideration money was Rs. 4300 and not Rs. 4000, the latter sum having been mentioned in the deed in order that a stamp of lower denomination than was really necessary might be used.

According to both of them, also, no money changed hands when, or immediately after, the deed of assignment was registered. Rampadarath Singh had, it was said, then executed a hand-note for Rs. 300 and had undertaken to pay the balance of the consideration money later when the document or the receipt for it should be handed over to him. Imdadali Khan and Sadique Akbar went on to explain that, two days after the deed of assignment was executed and registered, they had gone to Rampadarath Singh''s house and asked for the money. Rampadarath Singh had given them to understand that he would pay them the money at once and had induced them to make an endorsement acknowledging receipt of the money on the back of the registration ticket and also to antedate it.

After this had been done, Rampadarath Singh had gone into a room in his house and returned with a cheque. They had, however, declined to take it and had insisted on being paid in cash. Rampadarath Singh had then assured them that he would go with them to the Bank of Bihar, on which the cheque was drawn, and obtain and make over the money to them next morning. Imdadali Khan and Sadique Akbar had then gone away, taking the registration-receipt and also the hand-note with them. Rampadarath Singh had come to them next morning and had gone with them to the Bank of Bihar.

At the gate of the bank Imdadali Khan had made over the registration receipt and the hand-note to Rampadarath Singh and Rampadarath Singh, in exchange, had made over the cheque to him. Imdadali Khan and Sadique Akbar had then gone into the bank and presented the cheque, whereupon it was discovered that the cheque purported to be drawn, not by Rampadarath Singh, but by one Bishundeo Narain Sinha, and had been taken from a cheque-book issued in 1931 to one Rambhagawan Prasad Sinha, who had closed his account with the bank in the following year. The learned trying Magistrate accepted the case for the prosecution in its entirety, and, in convicting the petitioner, relied on the evidence of Sadique Akbar and one Muhammad Kazim.

The latter is a typist in the civil Court and knew the petitioner Rampadarath Singh who is a stamp-vendor there well. According to him, he had happened to be passing the Bank of Bihar immediately before Imdadali Khan and Sadique Akbar entered it, and had seen Imdadali Khan receive the cheque from Rampadarath Singh. for reasons, which will appear presently, the trial Court did not rely at all on the evidence of Imdadali Khan.

The learned Sessions Judge was of opinion that no incident took place at the entrance to the Bank of Bihar on 17th October 1939, and that the story told by Muhammad Kazim was wholly untrue. He-was, however, satisfied that the petitioner made over the cheque to Imdadali Khan and received, in exchange, the registration receipt and the hand-note, which he had executed previously, and on this ground maintained the conviction and sentence and dismissed the appeal. Imdadali Khan is a very old man, and apparently he had difficulty in understanding and replying to some of the questions which were put to him when he was in the witness-box. His difficulty became more marked in cross-examination, and, eventually, before the cross-examination had proceeded very far, the learned trying Magistrate stopped it and made the following note in the record:

In his cross-examination he could not give rational answers. I am satisfied that he is mentally unsound due to old age. He could not understand questions in cross-examination. I was fully satisfied that it was useless to pursue any further the cross-examination and I therefore stopped his cross-examination and expunged his evidence from the record of the case. The following extract from his evidence will show that he could not understand questions properly:

Q. Was there any decree in execution on your behalf before the Sub-Judge? A. No. To Court--Q. Repeat what the advocate has just-asked you. A. He could not repeat.... I did not sell any decree.

For some reason or other the attention of the learned Sessions Judge was not drawn to what had taken place in the Court below and, in convicting the petitioner, he relied on the evidence of Imdadali Khan. As I have already said, the lower appellate Court disbelieved the incident that is said to have taken place at the entrance to the Bank of Bihar immediately before the cheque was presented for payment, and discarded in toto the evidence of Muhammad Kazim and although it relied on the evidence of Sadique Akbar, it appears to have attached more weight to the evidence of Imdadali Khan observing that

so far as the facts of this case are concerned he has deposed consistently and I am convinced of the truth of the story told by him.

Now, the trial Court had decided, rightly or wrongly, that Imdadali Khan was not a competent witness, and had expunged from the record all that he had said before it came to that conclusion and stopped the pleader for the defence cross-examining him. The result is that in convicting the petitioner the learned Sessions Judge has relied on something that in law is not evidence at all, and the conviction must, therefore, necessarily be set aside. The action of the learned Honorary Magistrate in stopping the cross-examination of Imdadali Khan is open to criticism. When a person is called to give evidence and when there is reason to suspect that he may be incapable of giving rational answers to questions put to him, this is, as a rule, known either to the prosecution or to the defence or to both. In such a case, the usual course is for the attention of the Court to be drawn to the matter and for the Court to question the person with a view to ascertaining whether he is competent to give evidence or not.

It has been urged that there is no reason why a Court, having decided that a person is competent to give evidence and having, later, and as a result of that person''s behave our in the witness-box, come to the conclusion that that decision was wrong, should not stop further questions being put to him and expunge what he has already said from the record.

In support of this, reliance was placed on Reg v. Whitehead 1 (1866) C.C.R. 35. That was a case in which a deaf and dumb girl was called by the prosecution to support a charge of rape. She was to give her evidence by means of signs and the Court was at first satisfied that the expert, who was to interpret the signs, was competent to do so. Before, however, her examination had proceeded very far, it transpired that the expert was not really in communication with her at all, and the Court had no alternative but to stop the examination and expunge such evidence as had already been recorded.

The case was thus a wholly exceptional one. Also, it has to be remembered that at one time in England objection to the competency of a witness could be taken on various grounds besides that of mental incapacity and there was authority for the view that the objection need not be taken immediately and, if it was taken later and sustained, the evidence already recorded had to be expunged: Jacobs v. Layborn (1843) 11 M & W 685, When a Court in this country has once decided that a witness is competent, it ought not to intervene at a later stage suo motu, as the learned Honorary Magistrate apparently did in this case, and reverse its previous decision and expunge the evidence already recorded, especially when that evidence has been recorded at some length. However tedious and difficult it may have been to obtain satisfactory. replies from Imdadali Khan and whatever may have been passing in the mind of the learned trying Magistrate himself as to the value of the replies which were being obtained, the pleader for the defence ought to have been permitted to proceed with the cross-examination, it being left to him to decide when it was useless to proceed further. It remains to consider whether the appeal should be ordered to be re-heard.

The learned Sessions Judge as I have already said, disbelieved the story as to when and where the receipt was handed over in exchange for the cheque, and the reasons which have been given for disbelieving it are, in my opinion, entirely valid. If the evidence of Muhammad Kazim as well as of Imdadali Khan is discarded, there remains nothing but the evidence of the karpardaz, Sadique Akbar.

The latter is not a very reliable individual and it would, I think, be most dangerous to base a conviction on his uncorroborated evidence, more particularly when, in so essential a matter as to when and where the cheque was handed over, that evidence was almost certainly untrue.

It would, I think, be useless to remand the case and I would, therefore, set aside the conviction and sentence and direct that the petitioner be discharged from his bail and that the fine, if already paid, be refunded.

Yarma J.

I agree.