P L D 1957 Dacca 322 (PLP)

ISPAHANI, J.‑

This is an appeal by Jalaluddin Ahmed, and he along with another, namely, Hossain Ahmed was placed on trial before the Special Judge, Jessore, the former to answer a charge under section 420 of the penal Code, and the latter to answer a charge for abetting that offence. The Special Judge convicted and sentenced the appellant to rigorous imprisonment for three years, and to pay a fine of Rs. 1,000, in default, to rigorous imprisonment for a further period of one year awarding a compensation of Rs. 600 to P. W. 1 Adam Ali Khan and P. W. 2 Abdul Jabbar Khan, out of the fine if realized by his judgment and order of the 21st February 1955. He acquitted Hossain Ahmed of the charge under section 420/109. The prosecution case is that in 1358 B. S. and 1359 B. S. the appellant was the Naib of Naldanga Kutchery of the Narail Estate. That estate was acquired by the Govern ment with effect from the 22nd January 1952, that is, the first part of Magh, 1358 B. S. Hossain Ahmed was a Mohorer under the appellant. During the time of the Zamindars, P. W. 8 Meghai Khan was a Barkandaj of the estate. In lieu of his service he held some lands in Chakran right. It is alleged that towards the latter part of Chaitra, 1358 B. S., the appellant gave out that Chakran lands had been made khas by Government, and he was authorised to grant fresh settlement in respect of the same. Hearing this, P. W. 1 Adam Ali Khan and P. W. 2 Abdul Jabbar Khan wanted to take settlement. The appellant demanded Rs. 800 as selami but ultimately Rs. 600 was agreed and paid on the 24th or 25th Chaitra, 1358 B. S., in the presence of some others including P. W. 4 Abdul Barik Joardar, and P. W. 5 Srimanta Das. On the 6th Baisakh, 1359 B.S., the appellant granted the Dakhila, Exh. 1 signed by him. The appellant asked P. Ws. 1 and 2 to take possession of the land after the cultivation season was over. In Aswin, 1359 B. S., the appellant was replaced by a new Naib, named, Hafizur Rahman and he settled the lands with Meghai Khan on receipt of a salami of Rs.

300. The result was that P. Ws. 1 and 2 could not get possession of those lands. They requested the appellant to return their money, and he put them off from time to time, and it is alleged that in Agrahayan, 1359, B.S., a salish was held in the house of P. W. 6 Khagendra Nath Mitra, where the appellant admitted having received the money, and promised to return it within a month. He, however, did not do so. P. Ws. 1 and 2 informed some people including P, W. 7 Syed Ali Khan, a shop‑keeper at Naldanga Bazar, and then on the 19th June 1953, got a petition written by P. W. 3 Md. Jamat Ali and submitted to the District Anti‑Corruption Police. As a result of the enquiries made, the appellant with the other co‑accused was placed on trial before the Special Judge, and only the appellant was convicted and sentenced as stated above. The defence of the appellant was that he granted the Dakhila, Exh. 1 on the basis of previous Dakhilas which were produced by the party, and that he had not granted any new settlement to them nor had he received any selami from them. At this stage it may be stated that the prosecution examined P. W. 9 Nishi Kanta Datta, who is the Law Clerk of the Government Acquired Estates, who has deposed that before the acquisition of the estate in question, the appellant was a Tehsildar of the Attached Estates Department of the Collector, and after the acquisition he was posted to Naldanga Kutchery as Tehsildar in respect of the Narail Estate, and the Tehsildar had no power to grant settlement of Khas or Chakran lands, and no order was passed by the Collector for settlement of such lands. In the present case obviously the two most important witnesses are P. W. 1 Adam Ali Khan and P. W. 2 Abdul Jabbar Khan, who had in effect deposed about the proposal made by the appellant for settlement of Meghai Khan's lands, and the fact of payment of Rs. 600 to him as selami. Each of the two witnesses contributed Rs. 300, Mr. Sayem, appearing for the appellant, has contended firstly that on the showing of the learned Special Judge himself the judgment passed by him cannot be upheld inasmuch as the appellant had been prejudiced in his trial. He has referred to a portion of the judgment wherein the learned Judge observes as follows: "It is urged that after such statements of P. Ws. 1 and 8 the whole case of the prosecution falls to the ground. The statements above‑mentioned were made by the witnesses in answer to leading questions put by an astute lawyer of this Bar. They would have made further statements of the kind if the Court had not stopped the learned lawyer. They were answering `yes' to every suggestion put to them and looking bewildered and confounded. Both of them are illiterate, and one, P. W. 1, is aged about 60 years, and the other P. W. 8 above 80 years . . . . . . . . ." Mr. Sayem has therefore, contended that as the lawyer for the defence had been stopped in his cross‑examination, the defence had been greatly prejudiced, and the conviction and sentence cannot stand. In support of his argument, he has referred to Adan Haji Jama and others v. The King (L R 1948 A C 225). Therein their Lordships of the Privy Council held that where at the trial of the appellants on a charge of murder nobody appeared on behalf of the Crown to prosecute, and the trial Judge himself undertook the duties of the prosecution, the combination in one person of the duties of the prosecutor and Judge prevented the trial from being one conducted substantially in the manner required by the relevant provisions of the Administration of Criminal Justice Ordinance, 1926, of the Somaliland Protectorate, and it was vitiated. The conviction and death sentence passed on the ants were quashed and the appellants acquitted. Sayem ha tried to make out that in the present ca also the Judge combined the functions of a prosecutor an Judge which is not allowed in law. This argument cannot a sustained. On a reference to the evidence of the witnesses in question it does not appear there from that the defence layer was prevented from cross- examining the witnesses. Theo is neither any note to the effect that the defence lawyer bad been stopped from proceeding with the cross‑examination nor is there any petition on record filed on behalf of the appellant before the Special Judge to say that his lawyer was prevented from further cross‑examining the witnesses. It seems to us that when these witnesses were being cross‑examined, they were put such questions to which they answered `Ses' and the Judge must have told the defence lawyer not to put questions to bewilder and confuse the witnesses. It is always the duty of a trial Court to stop such questions in cross‑examination as are likely to mislead a witness. We are not prepared to hold that the cross‑examination of the witnesses was stopped by the Judge. Possibly questions were put in such a manner in cross‑examination that the witnesses were confused and to every question they answered "yes". In Vassiliades v. Vassiliades and another (A I R 1945 P C 38), it was held inter alia that no doubt cross‑examination is one of the most important processes for the elucidation of the facts of a case, and all reasonable A latitude should be allowed, but the Judge has always a discretion as to how far it may go or how long it may continue, A fair and reasonable exercise of his discretion by the Judge will not generally be questioned by an appellate Court. In our opinion, the Judge who has seen the demeanor of the witnesses, and the manner in which they were answering question much be held to have fairly and reasonably exercised his discretion which we are not prepared to question. It is next contended by Mr. Sayem that on the evidence of P. W. 1 Adam Ali Khan himself there is no case for the prosecution as he has made some damaging statements which would go to the very root of the case. In the beginning of the cross‑examination by Mr. S. Rahman, he stated that he paid the money at a time and that was in Chaitra. At the end of the cross‑examination by that lawyer he stated "It is true that witness did not pay Rs. 600 at a time and the payments were made to Jalal Mia, from time to time on account of the profits accruing from the jute business." It is, therefore, argued that this witness had admitted that the payment of Rs. 600 by him to the appellant was on account of profits accruing from the jute business, and, therefore, the prosecution case is false. It was suggested to this witness in cross‑examination that he occasionally took loans of Rs. 4 or 5 from the appellant for the jute business, and the appellant used to make Takids for the money, and the witness used to make payments to him. The witness answered in the affirmative. It was again suggested to him that there was a golmal between him and the appellant over the money borrowed, and after that golmal, the present case was filed. To that also he answered in the affirmative. It was suggested again that in the salish, the appellant demanded hisab of the money he would get from the witness as well as the hisab of the money the witness paid him and the witness again answered in the affirmative. P. W. 8 Meghai Khan in cross -examination stated that he did not ask anybody for settlement of his Chakran land, and that when asked if he paid any money for the settlement, he first stated that he paid the money and then stated that be paid the money on account of rent. This witness is aged 80 years while P. W. 1 Adam Ali Khan is aged about 55 years. It is amply clear from the evidence that both these witnesses were confused by the cross‑examination, and no reliance can be placed on their statement. There is no evidence that there is a jute business in which the appellant and P. W. 1 Adam Ali Khan are jointly interested. P. W. 2 Abdul Jabbar Khan is the other person who contributed money for taking settlement of the lands on appellant's representation. His evidence is reliable, and we see no reason to disbelieve him. He has also deposed to the salish where the appellant admitted having received the money but prayed for time to repay it. So far as the proposal made by the appellant to P. Ws. 1 and 2, and the payment of selami are concerned, that has also been deposed to by P. W. 4 Abdul Barik Joardar, who, in our opinion, is a most reliable witness and there is no reason whatsoever to disbelieve him. The only suggestion made to him was that the money was not paid m his presence which he denied. P. W. 5 is Srimanta Das, who saw the payment of Rs. 600 by Adam Ali Khan and Abdul Jabbar Khan to the appellant, but does not know on what account the payment was made. P. W, 6 Khagendra Nath Mitra is an important witness who speaks to the salish held at his house in Agrahayan, 1359 B. S., and according to him the appellant admitted having settled Meghai's land on receipt of Rs. 600, and asked for time to return the money. Mr. Sayem has pointed out that there were other persons present at the salish but they have not been examined which goes to show the falsity of the prosecu tion case. The evidence of this witness is most reliable, and we accept the same although other witnesses on the point have not been examined. He denies that the money was paid on account of any business. It will be seen from a recital of the above that the evidence of P. W. 2 Abdul Jabbar Khan has been substantially corroborated by the evidence of the other witnesses to the effect that the appellant promised to give settlement of Meghai's land on payment of Rs. 600, that the money was in fact paid, and when P. Ws. 1 and 2 could not take possession of the said land, a salish was held and at that salish, the appellant admitted having received the money and promised to pay it back. We see no reason to disbelieve any of the witnesses who have deposed to these facts. It is the prosecution case that a Dakhila, Exh. 1, signed by the appellant, was given to P. Ws. 1 and 2 on account of rent of said land. It is the defence version that the said Dakhila was signed by the appellant on the basis of a Dakhila shown to him by P. Ws. 1 and

2. This statement is to be found in his statement under section 342 of the Criminal P. C. In his statement under section 342, he stated that he looked into a Dakhila of the Zamindar's Sherista, and according to that Dakhila he realized the rent, and he granted a Dakhila for Rs.

24. What he stated was not the case put to P. W. 2 Abdul Jabbar Khan in cross‑examination. The said witness stated that it was not a fact that he and Adam Ali Khan obtained a Dakhila from the accused Jalaluddin by showing spurious Dakhilas. The appellant, as stated already, was a Tehsildar of the Attached Estates Department of the Collect orate before the acquisition, and we are satisfied that he granted the Dakhila, Exh. 1, himself in order to hoodwink P. W. 1 Adam Ali Khan and P. W. 2 Abdul Jabbar Khan. It was stated by Mr. Sayem that how is it that for the sum of Rs. 600 no receipt was given by the appellant? The answer to that is to be found in the deposition of P. W. I Adam Ali Khan who stated that he demanded a receipt for the selami, but the Naib stated that the amount was entered in Government Khata and no receipt would be granted. Mr. Sayem has made a point that P. W. 2 Abdul Jabbar Khan knew that the homestead of Meghai Khan was on the land, and he would, therefore, not advance money for taking settlement of those lands. The answer to that is that it was represen ted to the witnesses, P. W. 1 Adam Ali Khan and P. W. 2 Abdul Jabbar Khan, by the appellant that the Chakran lands had been made Khas and Government was going to lease out the land whereupon money was paid to him. On a consideration of all the facts and circumstances, it appears that the appellant took advantage of the confusion that necessarily followed the acquisition of Zamindaris. P. W. 1 Adam Ali Khan and P. W. 2 Abdul Jabbar Khan were duped and cheated to the extent of Rs. 600 on the false representation that Chakran lands had been made Khas by the Government, and the appellant was authorised to settle the same. On a due consideration of all the facts and circumstances of the case and the arguments advanced, we are fully satisfied as regards the guilt of the appellant. We, accordingly, dismiss the appeal and uphold the conviction and sentence passed on the appellant. The appellant must now surrender to his bail and serve out the sentence imposed on him, and pay the fine required of him, in default undergo rigorous imprisonment for one year more imposed in lieu thereof. ISMAIL, J.‑

I agree. K. B. A. Appeal dismissed.