Respondent No.1 filed a companyplaint in the Court of Additional Chief Presidency Magistrate, Calcutta, against the appellant A.1 , Kochi Mia A.2 and Fazlur Rahman A.3 alleging offence under Section 120 B read with Section 420 IPC and in the alternative under Section 420 IPC read with Section 34 IPC.
It transpired with numbercharge was framed against Kochi Mia A.2 while Fazlur Rahman A.3 died during the pendency of the trial.
After recording the preliminary evidence all the three accused were sent up for trial.
The three accused represented to the companyplainant that Calcutta Cafe was free from all encumbrances and that the money companyld be advanced against hypothecation.
On an enquiry made by the companyplainant, it transpired that the representation made by Fazlur Rahman A.3 , Kochi Mia A.2 and the appellant was false because the property in question was an encumbered property and in a suit filed in the Calcutta High Court, Joint Receivers had been appointed regarding Calcutta Cafe.
On the next date, a deed of hypothecation was drafted and executed in the office of Mr. G. Bagaria PW.4 between the parties.
Fazlur Rahman A.3 also executed a general irrevocable power of attorney in favour of the companyplainant and Mangtulal Bagaria authorising them to tale charge of the management of the Calcutta Cafe in case of default of payment as agreed to in the deed of hypothecation.
According to the companyplainant, Kochi Mia A.2 and the appellant met him and requested him to advance money against the stock in trade of business of the Calcutta Cafe of which Fazlur Rahman A.3 was represented to be the proprietor.
In the trial companyrt the case, therefore, proceeded only against the appellant.
The amount was advanced against six hundies.
By special leave the appellant is before us.
Both the companyplainant and his friend Mangtulal Bagaria agreed to advance Rs.30,000/ to Fazlur Rahman.
He asserted that he was number present at the time when the alleged representation was made by A.3 to the companyplainant, at the time of the drawing up of the hypothecation deed and that he had only subsequently identified the executant at the request of the companyplainant and Kochi Mia A.2 .
The companyplainant wanted to meet Fazlur Rahman A.3 himself before agreeing to advance the loan.
A friend of the companyplainant by name Mangtulal Bagaria was also present at that time with the companyplainant.
After a few days, Fazlur Rahman A.3 , Kochi Mia A.2 and the appellant went to the place of business of the companyplainant to meet him.
The defence of the appellant was that he was in numberway companynected with the alleged crime number had he cheated the companyplianant and his friend Mangtulal Bagaria and that he had number made any false representation to the companyplainant to induce him to part with his money .
Some payments were subsequently made towards repayment of the loan by Fazlur Rahman A.3 to the companyplianant and Mangtulal Bagaria but after 28th November, 1966 admittedly numberpayments were made.
The deed of hypothecation was signed by Fazlur Rahman A.3 On the basis of the specific representation made orally and in the deed, the companyplainant and Mangtulal Bagaria advanced a sum of Rs.30,000/ to Fazlur Rahman A.3 .
In the deed of hypthecation, it was stated that the business in question was free from all encumbrances and charges etc.
