JUDGMENT Guha, J. - The Appellant in this case has been convicted by the learned Chief Presidency Magistrate, Calcutta, under sec. 6 of the Child Marriage Restraint Act, 1929, and has been sentenced to pay a fine of Rs. 500, in default to undergo simple imprisonment for a month. So far as the proceedings before the learned Magistrate was concerned, there has been a material irregularity in the matter of compliance with the provisions of the law under which the accused, Appellant, was prosecuted on the complaint of a person who was the Secretary of an Association described as the Balya Bibaha Birodhini Samiti. The Child Marriage Restraint Act provides for the taking of security from the complainant, and sec. 11 (1) of the Act is as follows: At any time after examining the Complainant and before issuing process for compelling the attendance of the Accused, the Court shall, except for reasons to be recorded in writing, require the Complainant to execute a bond with or without sureties, for a sum not exceeding Rs. 100/-as security for payment of any compensation which the Complainant may be directed to pay u/s 250 of the Code of Criminal Procedure, 1898, and if such security is not furnished within such reasonable time as the Court may fix, the complaint shall be dismissed. 2. The provision is imperative, and the learned Chief Presidency Magistrate has not recorded any reason why the complainant in this case was not required to execute a bond. The irregularity in the proceeding could not be cured by anything contained in sec. 537 of the Code of Criminal Procedure; and the conviction of the accused is liable to be set aside for the reason of this material irregularity, seeing that the right of the accused to get compensation was not kept in view, when the learned Magistrate proceeded with the trial in entire disregard of the provision contained in sec. 11 of the Child Marriage Restraint Act. The procedure adopted by the learned Magistrate is open to this comment that at the very inception the Court was convinced of the truth of the complainant's case. As the learned Advocate for the Appellant did not lay very great stress on the irregularity in the procedure referred to above, I do not propose to pursue the matter further. 3. The procedure adopted by the learned Magistrate is open to this comment that at the very inception the Court was convinced of the truth of the complainant's case. As the learned Advocate for the Appellant did not lay very great stress on the irregularity in the procedure referred to above, I do not propose to pursue the matter further. 3. On the merits of the case, it was argued that the evidence before the Court did not justify the conviction of the Appellant. It appeal's that the learned Magistrate has based his decision on the complainant's evidence, which he saw no reason to disbelieve. The evidence of the complainant has to be scrutinised with care. The complainant started with the statement that Dhania Bai, aged 12 years 5 months and 9 days, daughter of the accused, was given in marriage; and a birth certificate was produced by him in Court. He had no means of ascertaining facts which were relevant in the case, excepting the information supplied to him by one of the witnesses for the prosecution, Radha Kissen, who gave him information that the accused's daughter Dhania was going to be married. The accused was a stranger to this witness, and he had never seen the girl Dhania. In cross-examination, the complainant stated that he could not say if the girl married was Than Bai and not Dhan Bai. On this point, another witness for the prosecution, Nathu Mull, was quite definite; and he said that his younger brother, the bridegroom, Sunder Lall, married a girl called Thani, not Dhani. On the side of the defence, two witnesses whose testimony cannot be rejected on any reasonable ground, and who appear to me to be witnesses of truth, stated that Dhani died sometime ago, at the native place of the accused, and that Than Bai, aged 15 or 16 years was the girl that was married on the date mentioned in the compliant before the Court. One of these witnesses, Amolak Chand, has known the accused for many years, and the accused and the witness came from the same part of the country. The other witness, Ganga Bissen Daga, is the uncle of the accused, and he and the accused used to live together in the same house for some years. One of these witnesses, Amolak Chand, has known the accused for many years, and the accused and the witness came from the same part of the country. The other witness, Ganga Bissen Daga, is the uncle of the accused, and he and the accused used to live together in the same house for some years. The oral evidence in the case, far from proving the case for the prosecution that Dhan Bai aged 12 years 5 months 9 days was given in marriage, goes to substantiate the case for the defence that it was Than Bai, and not Dhan Bai who was married to Sundar Lall; that Than Bai was aged more than 14 years at the date of the marriage; that Dhan Bai died at the native place of the accused sometime before the marriage of Than Bai on the date mentioned in the complaint before the Court. 4. The documentary evidence in the case consists principally of the birth certificates produced on the side of the prosecution and those placed before the Court on behalf of the accused. The birth certificate filed by the complainant, upon which the prosecution appears to have been mainly, if not solely based, was according to the case for the defence the birth certificate of the girl Dhan Bai, who died before the marriage of Than Bai. It has not been made out by evidence which can be acted upon, that the birth certificate produced by the complainant was not the birth certificate of Dhan Bai who was dead at the time of the marriage in question. On the whole, the evidence on the record does not establish the case for the prosecution; and the inclination of my opinion as indicated above, is that the defence version of the case is supported by the oral evidence in the case; the evidence afforded by the birth certificates produced in the case by the complainant is of an inconclusive nature, of which full advantage may be taken by the defence. In the above view of the case, the appeal is allowed; the conviction of the Appellant and the sentence passed on him by the learned Chief Presidency Magistrate, under sec. 6 of the Child Marriage Restraint Act, 1929, is set aside, and the Appellant is acquitted. The fine imposed, if realised, must be refunded to the Appellant.