JUDGMENT
Ram Labhaya, J.
1. This petition of revision is directed against an order of the Sessions Judge, U.A.D., dated 3.5.1950 by which the convictions of the two petitioners under Section 420, Penal Code, were confirmed though their sentences of imprisonment were reduced from 4 months to 3 months and in lieu of this reduction they were sentenced each to pay a fine of Rs. 500 and in default of payment to undergo rigorous imprisonment for one month.
2. The main contention raised on behalf of the petitioners is that their convictions are not sustainable on facts. We have gone through the records carefully and see no reason to differ from the finding of fact arrived at by the Courts below.
3. The prosecution case is that Jogeswar Barua, petitioner, negotiated a sale of 50 bundles of C.I. sheets with the complainant Mathan Chandra Tamuli. The price fixed was Rs. 80 per bundle. The two petitioners took the complainant to Sdikhaguri and showed him a boat with some stacks of C.I. sheets which he was informed were kept for sale. On the next day, viz. 26.6.1948, he paid the two petitioners sum of Rs. 4000. They handed this sum to Priyaram, father of Nandeswar petitioner. The C.I. sheets were to he delivered next day. On that day the petitioners did not deliver the sheets as stipulated and they themselves could not be found. At night both the petitioners visited the complainant and told him that the dealer, to whom the sheets belonged, had vanished and the money paid by him had also disappeared. The complainant went to the place of the accused next day again to make sure of what exactly had happened. He took two witnesses with him. The petitioners showed him some pieces of papers and pieces of blankets. They were of the size of ten rupee notes and it was represented to the complainant that the money that he bad paid had been converted by some magic to these articles. The complainant Mathan naturally could not swallow this fantastic story and again went to the petitioners. He took with him Tileswar (P.W. 4) and Dinaram (P.W. 3) and another person this time and demanded his money back. The petitioners executed two promissory notes separately in favour of one Tileswar. Jogeswar’s promisory note was for Rs. 800 and that of Nandeswar’s was for Rs. 700. It appears that this did not satisfy the complaint and be informed the police of the occurrence on 29.6.1948. The two petitioners and Priyaram were sent up for trial. All the three were convicted by the trial Magistrate. Priyaram was acquitted on appeal.
4 The prosecution story is supported by reliable and independent evidence and we find do force in the defence set up in the Courts below that no money was ever paid to the petitioners. If that were so they could not have been persuaded to execute pro-notes in favour of some one for the benefit of the complainant. There could be no manner of doubt that the complainant was induced to part with a substantial sum of money by deception on the part of the petitioners. The charge has been fully brought home to the petitioners and there is no reason for interference with the order of conviction on this score.
5. It has also been urged that the offence, if any, had been compounded outside the Court before the matter was reported to the police. The facts disclose an offence under Section 420, Penal Code. This could be compounded only with the permission of the Court. There has thus been no lawful composition. The learned Counsel has not been able to show us that any composition of offence tinder Section 430, Penal Code, in the circumstances of this case, could debar or preclude the police from prosecuting or the Court from taking cognisance of the offence. Any possible taint of illegality attaching to the agreement for the sale of C.I. sheets to the complainant also does not afford any answer to the charge. The convictions, in these circumstances, must be maintained.
6. The last point raised is that the alteration in the sentence ordered by the Appellate Court has resulted in its enhancement. The argument is that the trial Court sentenced each of the petitioners to undergo rigorous imprisonment for 4 months. The appellate Gourd reduced the substantive sentence of imprisonment but ordered each accused to pay a fine of Rs. 500 and in default to undergo rigorous imprisonment for 1 month. The result is that if the petitioners fail to pay the amount of fine they shall undergo rigorous imprisonment for 1 month in default of its payment. The fine would still be recoverable. The sentence is thus enhanced and is severer than the sentence originally awarded to the petitioners. We agree with the view of the law and giving effect to the contention raised by the learned Counsel order that the original sentence passed against the petitioners by the trial Magistrate be restored. The petition of revision is allowed to the extent indicated above. The rule is discharged with modification.
Thadani, C.J.
7. I agree.