1870 QUEEN v. MAHENDRA NATH CHATTERJEE. appeal against a judgment of acquittal," and the appeal in the present case being restricted to a judgment of conviction for a particular offence, all that the Sessions Judge had to do was to see whether that conviction was supported by the evidence or not; for he had no power to enquire whether the prisoner had been properly or improperly acquitted of the other charge for which he was tried by the Magistrate. I do not think that the provisions of section 426 were ever intended by the Legislature to override that great principle of Criminal Jurisprudence, which says that no man's life or liberty ought to be jeopardized twice for the same offence. In the Full Bench case already cited by me, it has been held that this Court has no power, either as a Court of revision or as a Court of appeal, to convict a prisoner of an offence for which he has been already tried and acquitted by a Court of competent jurisdiction; and I do not think that the Sessions Judge had any power to do that indirectly which he is not competent to do directly according to the principle laid down in that case. 1870 May 26. Before Sir Richard Couch, Kt., Chief Justice, and Mr. Justice Kemp. C. J. DUMAINE (PLAINTIFF) v. UTTAM SING (Defendant).* In a suit for enhancement of rent, it was objected, on behalf of the defendant, in special appeal, that service of notice had not been proved. Held, the question was one of fact, and the objection ought therefore to have been taken in the Court of first instance. Mr. R. E. Twidale for appellant. Baboo Iswar Chandra Chuckerbutty for respondent. THE judgment of the Court was delivered by COUCH, C. J.-With regard to the objection taken by the pleader for the defendant (respondent) with reference to the ruling of the Full Bench in the case of Akhoy Sankar Chuckerbutty v. Raja Indra Bhusan Deb Roy (1) to the effect that service of notice has not been proved, we think, as already observed in the course of the argument, that it is now too late to entertain that objection, nor do we think the defendant competent to take it in the lower Appellate Court on remand. It is an objection which ought to have been taken in the Court of first instance. The question as to whether notice was given or not is a question of fact; and if the objection had been taken at the proper time, the plaintiff would have had an opportunity of proving * Special Appeal, No. 2954 of 1869, from a decree of the Judicial Commissioner of Chota Nagpore, dated the 13th September 1869, reversing a decree of the Assistant Commissioner of that district, dated the 3rd May 1869. (1) 4 B. L. R., F. B., 58. 1870 DUMAINE v. that notice had been given. Section 13, Act X of 1859, says that such notice shall be served on the application of the person to whom the rent is payable; and although the title of the plaintiff accrued only three days UTTAM SING. before the suit was commençed, it is possible that the notice might have been given by the zemindar who was the person to whom the rent was payable, and that might have been shown if the objection had been taken at the proper time. Before Mr. Justice Kemp and Mr. Justice E. Jackson. IN THE MATTER OF THE PETITION OF NABA KUMAR BANERJEE.* Code of Criminal Procedure, (Act XXV of 1861), s. 36-Removal of a Case by the Interference by the High Court in a case where the Magistrate had improperly exercised his discretion in removing a case from the file of a Deputy Magistrate. Baboo Hem Chandra Banerjee for petitioner. KEMP, J.-The prisoner in this case is one Naba Kumar Banerjee, a late stamp-vendor of the Moonsiff's Court of Serampore. It appears that the Nazir of the Sub-Division of Serampore had absconded with certain property and moneys in his charge, in respect of which a charge was laid against him. There were also, it appears, two register books of stamps missing; and the prisoner, Naba Kumar Banerjee, being suspected of having something to do with the books being missing, is charged with the theft of the said registers by the Deputy Collector of Serampore. The case was made over for trial to the Deputy Magistrate of Serampore. The Deputy Magistrate, after taking the evidence for the prosecution, recorded his opinion that the discrepancies in the evidence for the prosecution were of so glaring a nature that it was impossible to sustain the charge brought by the prosecution against the prisoner, Naba Kumar Banerjee; but as the mook tear for the prosecution had asked the Court to postpone the case to enable him to procure copies of the evidence, stating that he would then be able to show to the Deputy Magistrate that the prisoner ought not to be discharged, he appears to have acceded to the request of the mook tear, and admitted the accused to bail. On another occasion, the mooktear for the prosecution appears to have made a similar application, and the case was again postponed. After the Deputy Magistrate had given the above expression of opinion, the case, it appears, was suddenly removed from his file by the Officiating Magistrate of Hooghly. * Miscellaneous Criminal Appeal, No. 47 of 1870, from an order of the Deputy Magistrate of Serampore, dated the 13th April 1870. 1870 July 2. 1870 IN THE MATTER OF OF NABA In the order removing the case, no reasons whatever have been given for doing so. The transfer is made under section 36 of the Code of Criminal THE PETITION Procedure; and although that section does not say that the Magistrate is bound to give any reasons, and enacts that the Magistrate is competent to withdraw BANERJEE. any criminal case from any Court subordinate to such Magistrate within his district or division, and to try the case himself, or to refer it for trial to any other such Court competent to try the same, we think that, under the circumstances of this case, considering that the case was complete, and that the Deputy Magistrate had expressed an opinion that the evidence for the prosecution was not sufficient to support the charge, the Magistrate has not exercised a wise or proper discretion in removing this case from the file of the Deputy Magistrate of Serampore to that of the Joint Magistrate of Hooghly. When the case came up on a former occasion, before the Chief Justice and myself, we thought it necessary to call upon the Magistrate to show cause why he had acted in this manner, and he has now submitted an explanation. He refers, first, to the fact of the Deputy Magistrate being to a certain extent subordinate to the prosecutor; secondly, to a rumour that the Deputy Magistrate had made improper remarks to a mook tear in the case; thirdly, that the Deputy Magistrate, residing in a small place like Serampore, and being in a position to hear much talk and rumour about the case, was unfit to try it; and, fourthly, that his amlas were related to parties in the case. These reasons, we think, are wholly insufficient for removing the case from the Deputy Magistrate's file at the late stage at which it was so removed. They may be very good reasons for not making the case over to the Deputy Magistrate, but not sufficient reasons after he had expressed an opinion unfavorable to the prosecution to suddenly withdraw it from his file. We think therefore that the Magistrate has not acted wisely in removing this case from the file of the Deputy Magistrate to that of the Joint Magistrate of Hooghly. It will therefore be replaced on the file of the Deputy Magistrate, who will dispose of it in due course. 1870 June 2. Before Mr. Justice L. 8. Jackson and Mr. Justice E. Jackson. GURU PRASAD ROY AND ANOTHER (DEFENDANTS) v. RAI BABOO DHANPAT Cause of Action-Suit to Recover Money advanced on a Bond before the Money became due- A. executed a bond in favor of B., but failed to cause the registration of the same. Before the amount secured by the bond became due, B. sued A. for recovery thereof, on the * Special Appeal, No. 698 of 1870, from a decree of the Officiating Judge of Moorshedabad, dated the 28th December 1869, modifying a decree of the Subordinate Judge of that district, dated the 27th August 1869. ground that, as A. had agreed to get the bond registered, but failed to do so, B. was entitled to recover the amount advanced by him. Held, that B. had no cause of action. THIS was a suit to recover a certain sum of money with interest, on the ground that the defendants who had agreed to have the bond, upon which the money was borrowed, registered, had failed to do so. By the bond, certain immoveable property was mortgaged as security for the defendants. The defendants admitted the execution of the bond, as well as the receipt of the money. They denied having made any contract with the plaintiff, and the breach thereof; they stated that they were ready to have the deed registered, but that owing to a disagreement between their mook tear and the mooktear of the plaintiff, the bond had not been registered. They submitted that the plaintiff was not justified in the institution of the present suit before the expiry of the period fixed for the repayment of the loan. The Subordinate Judge found that it was proved that the defendants had agreed to have the bond registered as it contained a clause whereby certain immoveable property was pledged as security; that the deed was not registered, owing to the refusal of the defendant's mooktear to pay the costs of registration. He accordingly held that the defendants had either voluntarily or negligently failed to register the bond, and that they must be concluded to have broken their agreement, and that this had given rise to the plaintiff's cause of action. He passed a decree in favor of the plaintiff. On appeal, the Judge held that the facts upon which the judgment of the lower Court was based were proved; and that the plaintiff had a good cause of action. He accordingly confirmed the decree of the lower Court. The defendants appealed to the High Court. Baboo Shamlal Mitter for the appellant contended that the plaintiff had no cause of action to sue for recovery of the amount secured by the bond before expiry of the time mentioned therein. The money had not fallen due. All that the plaintiff could do was to enforce registration. Baboo Srinath Das (Mr. Allan with him for the respondents).-When at the time of the advance it was agreed that the defendants would cause the bond to be registered, inasmuch as, without registration, the plaintiff would lose the benefit of the real property covered by the bond, and the defendants afterwards neglected or refused to perform their part of the contract, the breach was such as rendered the whole contract void. It was perfectly equitable that the parties should be placed in the original position. The contract on the part of plaintiff could not be binding. L. S. JACKSON, J.-It appears to me that the plaintiff in this case had no cause of action, and that the decision of the Court below upon his plaint is erroneous, and must be set aside. 1870 GURU PRASAD V. RAI BABOO SING. 1870 The plaintiff, it is alleged, lent a sum of money to the defendants on a bond, GURU PRASAD in which bond it was stipulated that certain immoveable property belonging ROY v. RAI BABOO 1870 June 25. to the defendants was pledged as security for the repayment of the loan, with interest. It was alleged that the defendants also agreed, verbally, to have this document registered; and the evidence shows that the document was, in fact, taken to the Registry Office; but that as the defendants did not appear, and their mook tear did not consent to registration, the document was returned to the plaintiff, although there was no formal note by the Registrar refusing to register endorsed upon it. Upon this, the plaintiff considers that, the defendants having broken the contract, he is entitled to put an end to it, and he sues to recover the money lent, although the due date, which is in the month of Sraban 1277 (July and August 1870) has not arrived. Both the lower Courts consider that the refusal of the defendants to regis ter gave the plaintiff a cause of action, which entitles him to recover the money lent. It appears to me that it did not, and that the conduct of the defendants (of which the account given is somewhat obscure) was such as would entitle the plaintiff to come before the Zilla Court, on the Registrar refusing to register, and, under section 84 of the Registration Act, apply by petition to establish his right to have such document registered. It cannot be said that the refusal of one of the parties to the contract, to carry out a verbal agreement not contained in the contract, enables the other party at his option to set aside the contract in toto. It may be contended that the period allowed by law, for registration of the document, having expired, the plaintiff has now lost his security. That, it appears to me, will not enable the Courts to grant the plaintiff the relief which he asks for in this suit. I think he has lost, by his own negligence, the security which the bond originally provided; and that if he is now reduced to a bare suit for his money when it becomes due, he has only himself to blame. The judgment of the Courts below must be reversed with costs. E. JACKSON, J.-I also think that the judgment of the Court below must be reversed. I think the plaintiff's proper course was to have enforced registration of the bond. Before Mr. Justice L. S. Jackson and Mr. Justice Glover. THE QUEEN v. HIRALAL SING AND OTHERS (PRISONERS).* Code of Criminal Procedure (Act VIII of 1869), s. 435—Power of a Magistrate in dealing with a case when dismissed without full and sufficient enquiry. Semble.-When a charge is dismissed by a Subordinate Magistrate without enquiry, a Magistrate has no power, under section 435 of Act VIII of 1869, to order a trial before another Magistrate, but can only order a commitment to the Court of Session. * Criminal Miscellaneous Appeal, No. 69 of 1870, against the order of the Sessions Judge of Moorshedabad, dated the 7th March 1870, affirming an order of the Deputy Magistrate of that district, dated the 12th February 1870. |