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Criminal Revision No. 221 of 1953, decided on 27th July 1953.
S. 114 (e)‑Judicial and official act‑Presumption as to its regular performance Application of presumption.
Section 114, clause (e) of .the Evidence Act authorises the presumption that a particular judicial or official act which has keen performed is performed regularly, but pre -sumption applies only when there is evidence to show that the act itself was performed.
Local Government‑ v. Mir Sarwar Jan, 6 C W N 845, Narendra Lal Khan v. Jogi Hari 32 C W N 1107 and S. K. Kumari Chowdhri v. Rai Kumar Ghose A I R 1934 Rang. 207 ref.
Md. A. Hye for Petitioner.
B. A. Siddiky for the Crown.
.‑In this case a Rule was issued on the Deputy Commissioner of Sylhet and on the Post Master‑General, East Bengal Circle, Dacca, at the instance of one Abdul Mannan who was a Sub‑Account Clerk of the Sylhet Head Post Office.
The material facts are that in April 1948, one Abdul Manaf remitted a sum of Rs. 490 through the Imperial Bank of India, Dacca, to his father Wasid Ali, a resident of village Chintamani within the area of Kurooah Branch Post Office, Sylhet. This amount was remitted in a registered and insured cover. Wasid Ali never received it, and accordingly he made a complaint to the Superintendent of Post Offices, protesting that this insured cover had never been delivered to him. As a result of the enquiry which followed upon Wasid Ales complaint, the present petitioner Abdul Mannan was sent up for trial in respect of an offence under section 52 of the Post Offices Act of 1898. He was tried by a Magistrate, Mr. Mahmud and in the course of this trial the addressee Wasid Ali and the Branch Post Master of Khurma Post Office, by name Paresh Chandra Choudhury were examined as witnesses. In this trial the petitioner Abdul Mannan merely stated that he was not guilty when his examination was taken under section 342, Criminal P. C. on the 8th of August 1948. The defence, how ever, did suggest in cross‑examination to the Branch Post Master, Khurma P. O., Paresh Chandra Choudhury, that it was he who had misappropriated the insured cover.
It is not disputed that the insured cover was received by the Sylhet Head Post Office on the 30th of October 1948. It is not disputed that by mistake it was directed by the petitioner to Khurma Branch Post Office. It is not disputed that it actually was received by Paresh Chandra Choudhury the Branch Post Master of Khurma.
From this point the cases of the prosecution and of the defence diverged. It is the case for the defence that the Branch Post Master, Paresh Chandra Choudhury himself suppressed the cover and embezzled its contents. It is the case for the prosecution that the Branch Post Master. Paresh Chandra Choudhury sent the cover back again to the Sylhet Head Post Office with 'the advice that it had been missent to his office at Khurma by mistake for the Branch Post Office Kurooah.
The trying Magistrate Mr. Mahmud convicted the petitioner on the 27th of August 1949, and he appealed against his conviction to the Sessions Judge. The Sessions judge disposed of the appeal on the 26th of January 1950, and ordered a retrial and directed that at the retrial the Treasurer of the Sylhet Head Post Office, the Packerman and the Khurma Postman should all be examined in an endeavour to discover whether it was the petitioner or the Khurma Branch Post Master, Paresh Chandra Choudhury who was responsible for the loss of this insured cover.
On this direction the Magistrate decided on a joint trial of the petitioner Abdul Mannan and the Branch Post Master, Paresh Chandra Choudhury and asked the Police to submit a supplementary charge‑sheet against Paresh Chandra Choudhury. Paresh Chandra Choudhury, however, died and the petitioner alone was committed to trial before the Court of Sessions, as the Magistrate discovered that the offence with which he was charged was triable exclusively by the Court of Sessions.
The petitioner was then placed on trial before Mr. M. A. Jalil, Assistant Sessions judge, and at his trial the evidence of Wasid Ali and Paresh Chandra Choudhury as recorded by the Magistrate Mr. Mahmud in the first trial was put in under section 33 of the Evidence Act as they had both died in the meantime. The trial ended in the conviction of the petitioner on the 29th of May,1951. He appealed to the Sessions Judge and his appeal was dis missed by Mr. Velayet Hossain on the 21st of December 1951. Thereafter he approached this Court in the exercise of its Criminal Revisional Jurisdiction and obtained a Rule against his conviction and sentence. The Rule was made absolute on the 18th of August 1951, and it was held by this Court that the evidence of Wasid Ali and Paresh Chandra Choudhury recorded by Mr. Mahmud in the first trial could not legally be put in evidence in the trial before Mr. M. A. Jalil. Accordingly a retrial was ordered.
This retrial was held by. Mr. M. H. Bhuiya, Assistant Sessions judge and resulted in the conviction of the petitioner on the 4th of December 1952. Once again he appealed to the Sessions judge and his appeal was dismissed by Mr. M. A. Rouf, Additional Sessions Judge on the 14th of March 1953. He again approached this Court in the exercise of its Criminal Revisional Jurisdiction and on the 4th of May 1955, obtained the present Rule.
The substantial ground upon which the .Rule was issued was ground No. 2.
" For that both the Courts below have erred in law in presuming (evidently under section 114 (e)) of the Evidence Act holding that when the journal, Exh.8, shows an entry that the insured letter in question was sent, it was really sent by the Khurma Post Master. The presumption that the act was regularly done arises only on proof that the act was in fact done as the presumption is limited to the regularity of act done and does not extend to the doing of the act itself and in that view of law both the Courts below have seriously erred in presuming in the absence of any evidence that insured letter was actually sent. This being the vital' question the accused has been‑ seriously prejudiced thereby ".
We have already noticed that the prosecution and the defence cases both agree that the insured cover addressed to Wasid Ali was received at the Sylhet Head Post Office on the 30th of October 1948. It is also not disputed that it was forwarded erroneously to the Post Master of Khurma and was received by him on the 31st of October 1948. On the prosecution story; it was returned by the Post Master on the 4th of November, 1948, with the advice that it had been missent to' his office. On the defence case, Paresh Chandra Choudhury himself suppressed the letter and embezzled its contents and never sent it back to the Sylhet Post Office. It is common ground that it was never found again in the Sylhet Head Post Office.
In order to establish their case that the Khurma Post Master actually returned the insured cover, the prosecution relied upon an entry in his journal, Exh. 8. In the first trial before Mr. Mahmud, the Magistrate, Paresh Chandra Choudhury had been examined as a witness: On .his death the prosecution in the trial before Mr. M. A. Jalil, Assistant Sessions Judge; tried to fill up the gap in the prosecution case caused by his death by putting in his evidence under section 33 of the. Evidence Act. It was held by this Court that that could not, in law, be done. Conse quently, in the trial before Mr. M. H. Bhuiya the prose cution tried to fill up the lacuna by proving an entry in the journal showing that the letter had actually been sent back to Sylhet Head Post Office.
Mr. Abdul Hye appearing on behalf of the petitioner before us, has argued that the Courts below have erred in that they have applied the provisions of section 114 (e) of the Evidence Act to this entry in the journal as show ing that the insured cover actually was sent back by Paresh Chandra Choudhury to Sylhet. Mr. Hye cites the cases of the Deputy Legal Remembrancer on behalf of the local Government v. Mir Sarwar Jan (6 C W N 845), the case of Narendra Lai Khan v., Jogi Hari (32 C W N 1107) and the case of S. K. Kumari Choudhury v. Rai Kumar Ghose (A I R 1934 Rang. 207). These cases all pro nounce that section 114, clause (e) of the Evidence Act) authorises the presumption that a particular judicial or official act which has been performed, has been performed regularly, but it does not authorise the presumption, without any evidence that the act has been performed. This observation is called from the case Deputy Legal Remembrancer on behalf of the Local Government v. Mir Sarwar Jan but the other cases speak with the same voice. It must be accepted that the presumption only applies when there is evidence to show that the act itself was performed. In the present case there is no evidence that the insured letter received in the Khurma Post Office was actually sent back to Sylhet. No witness from the Khumra Post Office has been examined who was able to say that he actually saw the letter being put into the mail bag. It was in these circumstances that the prosecution put in the entry in the journal as proof that the insured letter had been sent hack to Sylhet and the Courts below accepted it and relied on the supposed presumption flowing there-from.
In the present case, however, the fact that there was an entry in the journal cannot be accepted as proof that the letter actually was sent back to Sylhet, the more so as the defence case is that the Post Master of Khurma himself misappropriated the letter and the entry itself does not represent the truth.
It is true that at first the petitioner contended himself with the plea of not guilty and suggested that it was Paresh Chandra Choudhury who was the culprit in the trial before Mr. M. A. Rouf. In the trial before Mr. M. A. Jalil simi larly he contended himself with the plea that he was not guilty. In the trial before Mr. M. H. Bhuiya he came out I with a lengthy statement when examined under section 342 in which he placed the blame squarely on the shoulders of Paresh Chandra Choudhury but by that time Paresh Chandra Choudhury was dead and was not in a position to say anything about it. The Courts below also took into consideration the fact that the petitioner's conduct subsequent to the discovery that the insured letter was missing, suggested his guilt. It is true that his conduct was suspicious and indeed, he was obviously making state ments which were not true. But these statements do not necessarily give rise to an inference of his guilt in the sense that he himself misappropriated the letter because it is possible that his subsequent conduct was conditioned by the fact that he was in a measure, responsible for the missing of the letter although he might not have misappro priated its contents himself.
In these circumstances, as the Courts below have relied on a presumption under section 114 (e) of the Evidence Act in support of the conviction of the petitioner and as we have held that in law that presumption could not be drawn from the mere entry in the journal that the letter had been sent back to Sylhet, the conviction of the petitioner cannot be sustained.
In the circumstances of the case, as the petitioner has already been tried once by a Magistrate Mr. Mahmud and has been tried twice at Sessions by Mr. M. A. Jalil and by Mr. M. H. Bhuiya, we do not propose to direct his further trial.
In the result, the Rule is made absolute. The convic tion and sentences are set aside and we direct that the petitioner be released from custody forthwith and that the fine, if paid be refunded.
I agree.
K. B. A./M. S. Rule made absolute.
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