JUDGMENT
Lawrence Jenkins C.J.
1. These are two separate appeals preferred by two accused who have been convicted and sentenced at the Bankura Sessions. The accused in Appeal No. 494 has been convicted under Sections 409, 465, 471 and 477 A, and he has been sentenced to three months’ rigorous imprisonment for the offence under Section 409, and to two years’ rigorous imprisonment under Section 465 of the Indian Penal Code. The accused in Appeal No. 514 has been convicted under Sections 465, 471 and 477A, and he has been sentenced to one year and six months’ rigorous imprisonment under Section 465. That the accused in Appeal No. 494 is guilty of the offence under Section 409 is, we think, clearly established. The judgment of the learned Judge on this part of the case is very careful, and his reasoning convinces us that his conclusion is correct. We, therefore, must affirm the conviction and sentence under Section 409. But we are unable to uphold the conviction and sentence under the other sections against this accused. Section 465 prescribes the punishment for forgery; Section 471, the punishment for using as genuine a forged document, and Section 477 A for falsification of accounts. For each one of these offences there has to be, so far as this case is concerned, an intent to commit fraud; and, on the facts that are established, it cannot be said that this intent is made out. The intent to commit fraud is said to consist in the preparation of certain books with a view to showing that the sum of Rs. 10, which had been misappropriated by the postmaster, in fact was received on the 12th of January, where as the proper accounts did not show that that sum was paid. Looking at the case in its broad features, the real purpose was not to defraud but to remove the evidences of crime. For that no charge has been framed as against the accused. It would apparently be, if at all, under Section 201 that such a charge could be framed; and, as against the accused postmaster, no such charge would lie, as it has been decided more than once that a charge against a principal offender will not lie under that section, nor has there been any charge against the accused treasurer under that section. As to whether or not there is an intent to defraud in any particular case manifestly must depend on the actual circumstances of that case: and the facts now before us are distinguishable from those in Lolit Mohan Sarkar v. Queen-Empress 22 C. 313 and Emperor v. Rash Behari Dass 35 C. 450; 12 C.W.N. 681; 7 Cr. L.J. 378 in that here the entry shows that the postmaster was liable, and it is a statement of the true position of affairs, whereas in those cases the accounts were framed in such a way as to conceal liability and to present an untrue state of affairs: and, this having been put to the learned Counsel on behalf of the Crown, he was compelled to concede that it would be difficult for the Crown in these circumstances to say that the intent to defraud in its true legal significance had been made out. In our opinion, the learned Counsel was perfectly right in the view he took, and we agree with that view. The charges, therefore, so far as they rest on an intent to defraud, i.e., the charges under Sections 465, 471 and 477 A, fail with the result that, as against the postmaster and also as against the treasurer, the conviction and sentence under these sections must be set aside.
2. The result, therefore, is that the conviction and sentence of the accused in No. 494, the postmaster, under Section 409, is affirmed, but his conviction and sentence under the other sections are set aside; and the treasurer, the accused in No. 514, is acquitted, and we direct his release.
3. There is one further point to which I would draw attention, and it is a matter of procedure in regard to the reading over of depositions as required by Section 360 of the Criminal Procedure Code. In the course of the trial, Mr. Morton on behalf of the Crown asked that the evidence given by a witness should be read over to him in the presence of the accused or his pleader as provided by Section 360. To this the learned Judge replied that it would involve a great waste of time. He then said the section seems to me directory and not obligatory. If the witness detects a mistake he can come back and say so. This is the universal practice in Sessions Courts: my experience extending to about six such Courts. Optima est legum interpres consuetude.” I do not agree with this view, for the custom indicated by the learned Judge cannot alter the plain words of the Act. Mr. Morton’s application was right, and if, as has been represented to us, that section is disregarded in practice, then I have no hesitation in saying that the practice is erroneous. It has not interfered with our disposal of this case,because we are able to hold, in the special circumstances, that the omission is not fatal. But such a departure from the terms of the Criminal Procedure Code might lead to considerable embarrassment, and place a serious impediment in the proper administration of justice for there are cases in which it has been held that, for the purposes of a prosecution on the ground of perjury, depositions to which the procedure laid down in Section 860 has not been applied, cannot be properly used. I, therefore, trust that, if the practice exists, it will be discontinued in deference to the clear direction of Section 360 of the Criminal Procedure Code.
Caspersz, J.
4. I agree.
