JUDGMENT Zia-ul-Hasan and Yorke JJ. 1. This is a reference made by the Additional Sessions Judge of Kheri u/s 438 of the Code of Criminal Procedure, recommending that this Court should set aside an acquittal by a Magistrate on charges of embezzlement and convict and punish the accused in respect of one of those charges. The recommendation is obviously mistaken in one respect in view of the provisions of sub-Section (1929) 53 Bom. 664: A I R 1929 Bom. 306 of Section 439 of the Code of Criminal Procedure which provides that nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction 2. The recommendation which the learned Additional Sessions Judge should have made, and which we treat him as having made, is that his Court should set aside the order of acquittal and direct that the accused be tried by some other Court on the charge in respect of which the recommendation is made. 3. The case out of which this application has arisen was a private prosecution by a servant of the Isanagar estate under the direction of the taluqdar the Raja of Isanagar, of the opposite party Syed Mohammad Jafar on three charges of embezzlement the first in respect of a sum of Rs. 273-6-0 said to have been drawn by the accused for payment by money order to one Mst. Adya Bai, a guzaradar, (1931) 8 O W N 1336 in respect of Rs. 321-8-0 and Rs. 70-6-0 said to have been drawn for payment to the Newal Kishore Press and (1931) 8 O W N 1(sic): A I R 1931 Oudh (sic) in respect of a sum of Rs, 140 drawn for payment to the complainant Chandrika Prasad, of which it was said that Rs. 40 had been embezzled. The learned Magistrate who tried the case very carefully and discussed the questions which had to be decided at some length acquitted the opposite party in respect of all three charges. 4. The learned Additional Sessions Judge on an application in revision on behalf of the complainant against this order of acquittal has discussed all three charges but has made no recommendation with regard to charge Nos. 2 and 3. In regard to charge No. 1 he is of opinion that the charges could not be maintained in respect of Rs. 4. The learned Additional Sessions Judge on an application in revision on behalf of the complainant against this order of acquittal has discussed all three charges but has made no recommendation with regard to charge Nos. 2 and 3. In regard to charge No. 1 he is of opinion that the charges could not be maintained in respect of Rs. 30 out of this sum of Rs. 273-6-0 but he considered that the charge was established in respect of Rs. 243 and he has accordingly made a reference to this Court. 5. The first question which has been raised before us and which has to be considered is the question of the jurisdiction of this Court to interfere in revision with a judgment of acquittal and order a retrial. Learned Counsel for the opposite-party Syed Mohammad Jafar contends that even if it cannot be said that a High Court has not got jurisdiction to order a retrial on a case coming before it u/s 439 of the Code of Criminal Procedure, whether (on) the application of a private party or a reference by a. District Magistrate or Sessions Judge nevertheless to set aside an acquittal and direct a retrial is practically tantamount to expressing the opinion that the evidence on the record justifies a conviction and directing the Court below to reconsider that evidence in the light of the opinion expressed by this Court. He would, therefore, maintain that such an order really comes within the condemnation of sub-Section (1929) 53 Bom. 664: A I R 1929 Bom. 306 of Section 439. 6. In this Connection he has referred to several cases. In Ma Nyen v. Maung Chit Hpu A I R 1929 Rang. 321, it was held that the High Court interfering in revision may set aside an order of acquittal and direct a retrial owing to non-recording of evidence or improper recording-of inadmissible evidence but where there is no question of evidence heaving been erroneously omitted or of evidence having been erroneously recorded and the High Court is asked to hold that on the evidence the accused ought not to have been acquitted no order directing a retrial can be made 7. A similar view was taken by Sir Louis Stuart in a case of this Court, Kalka Prasad v. Niranjan Singh (1931) 8 O W N 1336 in 1926 when he held that it is ordinarily not open to a private person to have an acquittal set aside in revision and it is doubtful whether it is open to a High Court in revision to set aside an acquittal and direct a retrial 8. That case was not reported at the time but was quoted before a Bench of this Court in 1931 and was then reported in 8 O. W. N., 1336. The decision of the Bench before which this case appears to have come is reported as Girdhariji Singh v. Jitendra Mohan Singh (1931) 8 O W N 1(sic): A I R 1931 Oudh (sic) in which a different view was taken, na(sic)ly that in a case of acquittal it is within the competency of the High Court to entertain an application for revision at the instance of a private complainant despite the fact that Government has declined to institute an appeal and to interfere, should it see fit, in the matter to the extent of setting aside the order of acquittal and directing a retrial. 9. The Bombay High Court has not followed the view taken by Sir Louis Stuart in the case referred to above but has held in Emperor v. Rameshwar Harnath (1929) 53 Bom. 664: A I R 1929 Bom. 306, that the High Court has jurisdiction to entertain applications in revision against orders of acquittal u/s 439 of the Code of Criminal Procedure(sic) although as a matter of practice and policy it will not interfere with such orders at the instance of a party other than the Local Government except on some very broad ground of the requirements of public justice 10. In three cases of this Court decided by Mr. In three cases of this Court decided by Mr. Justice Nanavutty and reported in King-Emperor v. B.A. Peters 1934) 11 O W N 717 : A I R 1(sic) Oudh 276 Dulare v. Sundaria (1934) 11 O W N 718 : AIR 1984 Oud 278 and (sic) Prasad v. Ram Dulary (1934) 11 O W N 719: A I R 1934, Oudh (sic) the view was expressed that an application in revision or (sic) reference made on such an application must be founded on an acceptance of the findings of fact of the trial Court, that is such an application or reference (sic) only be made on a point of law. We are not satisfied that this is a sound view and in fact it is not supported by any other anthority. 11. The learned Additional Sessions Judge himself referred to a number of cases reported in 10 O. W. N. In Rama Murli (sic) Jai Indra Bahadur Singh (1933) 10 O W N 345 : A I R 19(sic) Oudh (sic), it was (sic) by Raza J. (sic) the High Court has jurisdiction u/s (sic) of the Code of Criminal Procedure to entertain (sic) application in revision of an order of ac(sic) (sic)en the Crown has preferred no appeal; but the (sic) Court would not move in such a case, unless (sic) is some glaring defect either in the procedute (sic) the view of the evidence taken by the Court below 11. Further on it is said that the Court as a rule will not go into the evidence save in exceptional cases, as where the judgment of the facts is manifestly wrong and (sic)sly and palpably unjust; otherwise, though There is no right of appeal, an appeal might in effect be admitted in every case in the guise of an application for revision 12. There is a great deal of force in these remarks. 13. Again in another case AIR 1933 279 (Oudh) , the same learned Judge held that the High Court would refuse to consider questions of fact in revision where it could not be said that the findings of the Sessions (sic)dge are perverse, illegal or unwarranted. 14. There is a great deal of force in these remarks. 13. Again in another case AIR 1933 279 (Oudh) , the same learned Judge held that the High Court would refuse to consider questions of fact in revision where it could not be said that the findings of the Sessions (sic)dge are perverse, illegal or unwarranted. 14. Again the same learned Judge in the case in Mendhai Lal v. Beni Madho (1933) 10 O. W N. (sic) : A. I. R. 1933 (sic) held that in (sic) it is a well established practice that the Court is loath to interfere in cases of acqu(sic) and the power of interference in exercised if it is proved without any doubt, not only that the accused person is guilty, but that he has been acquitted an (sic)nable grounds 15. Another (sic)Judge of the Court in Banke Lal (sic) hold that the High Court will not (sic) in very special (sic)cumstauces interfere on application for revision by a private person with an order of acquittal 16. Leaned Counsel for the opposite party has relied finally on the case of AIR 1933 259 (Nagpur) in which it was held that When the Local Govrnment has not preferted an appeal u/s 417, the High Court ought not to (sic) in revision on a reference u/s 4(sic) by the District Magistrate, where it cannot do so without practically hearing the case on the evidence 17. With respect we are opinion that there is a great deal to be said for this view. 18. Dr. Misra supporting the reference has referred to a number of cases in which it has been held that the Court has a power to interfere, but we do not think that these cases really take the matter very much further. He referred among other cases to Nand Ram Vs. Khazan and Another, AIR 1921 All 266 in which it was held that the jurisdiction of the High Court to revise an order of acquittal and direct a retrial should be exercised only in exceptional cases and with (sic)ion. He referred among other cases to Nand Ram Vs. Khazan and Another, AIR 1921 All 266 in which it was held that the jurisdiction of the High Court to revise an order of acquittal and direct a retrial should be exercised only in exceptional cases and with (sic)ion. 'It should only be done in cases where the alleged offence is of a serious character and a Judge comes to the opinion that there has been a miscarriage of justice where for instance the lower Court has misquoted the evidence, or where having evidence before it which prima facie is reasonable and credible the Judge of that Court gives no grounds whatever far rejecting it and does not satisfactorily review it 19. Similarly in what is perhaps the most recent case of this Court quoted to us AIR 1937 283 (Oudh) it was held by one of the members of the present Bench that ordinarily the High Court will not interfere with an order of acquittal especially in a case u/s 323, I.P.C. but it with interfere when the trial Magistate has acquitted the accused owing to a wrong view of the law 20. Another case of the same kind is the case of Surendra Nath Singha v. Jannt Nath Ghose (1925) 53 Cal. 471 : AIR 1926 Cal. 945 the headnote in which(sic) where the Magt(sic) acquitted the accused, on a charge of rioting with the common object of taking possession of the complainant's land and assaulting his durwans without coming to a finding on the question of possession Held, that the judgment wag not a satisfactory one, as the Magistrate should have arrived at a proper decision on the point and that the order of acquittal must be set aside and a re-trial ordered 21. In that case the Magistrate had failed to come to a decision on a point which went to the root or the whole case, and therefore a retrial was ordered. 22. We have been referred to two other cases of the Calcutta High Court. In Shaikh Bagu v. Raika Singh the trying Magistrate had completely failed to take into consideration a portion of the evidence and it was held that he had failed to deal with the case before him with judicial care and impartiality. Hence the order of acquittal was set aside and retrial ordered. 23. In Shaikh Bagu v. Raika Singh the trying Magistrate had completely failed to take into consideration a portion of the evidence and it was held that he had failed to deal with the case before him with judicial care and impartiality. Hence the order of acquittal was set aside and retrial ordered. 23. Similarly in Satish Chandra Das v. Ghinta Haran Saha it was held that the High Court has power to interfere in revision with an appellate judgment of acquittal, and that power should be sparingly exercised, it would be wrong to refuse to exercise it in cases where there has been a fallure of justice by reason of the appellate Court not having brought a judicial mind to bear upon the (sic) 24. The upshot of the whole matter would seem to be this that this Court will not on an application in revision against an acquittal treat the case before it as a case of appeal. It will not be prepared to interfere unless there are exceptional matters compelling it to do so, as for example where the Magistrate does not appear to have exercised an impartial judicial mind in considering the evidence, where he has entirely left evidence out of consideration or has relied upon evidence which is not to be found on the record. (sic) is going too far to say that the High (sic) must accept loyally the findings of (sic) of the trial Court or the lower appellate Court, as the case may be, but at the (sic) time it is obvious that the power to (sic) is one to be exercised most sparingly and only when there appears to have been a miscarriage of justice or a perverse and unreasonable decision. We (sic) of opinion that in the present case 23. what we are being asked to do really is to set aside the order of acquittal and direct a retrial merely on the ground that we should take a different view of the evidence from that which has been taken by the learned Magistrate who tried the case and had the witnesses before him. what we are being asked to do really is to set aside the order of acquittal and direct a retrial merely on the ground that we should take a different view of the evidence from that which has been taken by the learned Magistrate who tried the case and had the witnesses before him. Had this matter come to us directly upon an application to this Court by the present applicant Chandrika Prasad we should have given it a very short shrift, but in view of the reference made to us by the learned Additional Sessions Judge we have gone into the evidence at some length. 25. Turning now to the merits of the case we think that the very first comment which must necessarily be made is that the very length of the argument by which it has been necessary for learned Counsel supporting the reference to endeavour to convince us that the opposite party has been wrongly acquitted is itself an indication that all that we are being asked to do is to take a different view of the facts merely because a different view of the facts is possible and not because that different view of the facts is so convincingly the right view that we must necessarily accept it. 26. As we have said earlier three charges were made against the opposite party in the complaint. It will be necessary at this stage to state the facts at somewhat greater, length. The opposite party was in the service of the Isanagar estate at first as Accountant and subsequently as Accountant and Head Clerk beginning from October 1934 up to the end of January 1938. As Accountant he maintained what is called the cash book of the estate in which he entered receipts from collections on the one side while on the other he entered payments out of the treasury for the making of which cheques were drawn, there being a column on the (sic) panditure side for entering the number of the cheque drawn to meet each item of expenditure. It is admitted that entules in regard to payments were made in this cash register month by month, and cheques prepared but cheques were not necessarily cashed at that time. In fact the cash book shows at the end of numerous months a long list of cheques which had not been cashed. It is admitted that entules in regard to payments were made in this cash register month by month, and cheques prepared but cheques were not necessarily cashed at that time. In fact the cash book shows at the end of numerous months a long list of cheques which had not been cashed. For several month on end we find that the whole of the cheques of the previous months were uncashed. The explanation of this is doubtless that in ordinary zemindari management rents only come in at certain regular times and are not being received all the time. In the cash book, Exh. 4, the closing balance of October 1936 shows Rs. 10,587 in the estate treasury and in order to arrive at the true balance there is a note "deduct uncashed cheques Rs. 3,839", by this means the real balance in hand was arrived at. At the end of November, there were still uncashed cheques prior to November of Rs. 3,528 and a further deduction of Rs. 6,261 was made for the whole of the cheques of November, that is none of the cheques drawn in November were cashed. The same thing happened in December 1936, In January some of the cheques prior to December were cashed but the closing balance showed the whole of the cheques of December and January as uncashed. At the end of February the whole of the cheques of February were similarly left uncashed, along with those of January and December and this procedure was repeated at the end of March, the end of April and the end of May. It was not until June 1937 that these cheques of the preceding six months were cashed and the balance of uncashed cheques reduced from Rs. 57,750 to Rs. 1,940. 27. The prosecution case against the Head Clerk and Accountant in respect of which this reference was made related to a monthly payment of Rs. 30-6-0 which was to be sent to Mst. Adya Bai described in the accounts as "guruain", that is the wife or widow of the Raja's religious Guru, as an allowance or guzara. It is not disputed that this amount finds (sic) place in the cash book month by month and that nine cheques, Exhs. 30-6-0 which was to be sent to Mst. Adya Bai described in the accounts as "guruain", that is the wife or widow of the Raja's religious Guru, as an allowance or guzara. It is not disputed that this amount finds (sic) place in the cash book month by month and that nine cheques, Exhs. 9 to 17, were drawn on the 12th December 1936, and the 14th January, 26th February, 5th March, 5th April, 4th May 3rd June, 5th July and 5th August, 1937, which included each of them Rs. 30-6-0 entered in the accounts as amount of guzara and amount of money order commission. The prosecution theory is that the first seven of these cheques totalling Rs. 996-8-0 were cashed by the opposite party accused on the 17th June, 1937, when he himself endorsed a note "received payment" on the back of each cheque while the other two cheques were similarly cashed on the 19th July and the 8th September. It was at first alleged that the accused embezzled Rs. 273-6-0 that is to say nine months' guzara and 9 months' money order commission. It subsequently turned out that the guzara for which a cheque was drawn on the 5th July 1937 and the same cheque cashed on the 19th July was received by Mst. Adya Bai a week later and in consequence the charge in respect of that sum was dropped. 28. The defence now put before us but not quite so clearly stated in the trial Court is that the methods of the estate, particularly the methods of the Raja himself are by no means always in accordance with strict rules of accounting, and it is said that it frequently happened that when cheques were cashed from the estate treasury the money instead of being used at once for the purpose for which it was drawn, was taken by the Raja for some other, purpose. In this connection it has been shown to us that there are numerous eases in which although cheques are endorsed by A the money was taken by B, and cases in which a cheque having been drawn in the name of one person was endorsed by the accused or by some one else and the money was actually paid to a third person who signed for that money. The estate maintained another register which is called an advance register and this register shows payments with in some cases on entry in a details column of the cheque drawn in respect of this payment, but on the other hand the cheque drawn is not for the same amount as the amount actually paid. The defence theory continues that so far as this particular matter of the payment to Mst. Adya Bai is concerned there is in the advance register Exh. F an entry of the 19th March 1938, showing that on that date Mst. Adya Bai was paid 8 month's guzara which payment apparently related originally to the 8 months ending in August 1937, (less the one month's payment made by money order to which we have referred above), but the entry was subsequently altered by the addition of the words "ta March 1938" so as to make it appear that this payment related to the eight months ending in March 1938. 29. In considering this theory it is important to remember that guzara is always drawn at the beginning of a month for the guzara of the preceding month, that is it is always paid in arrears. There is no room for doubt in the light of this entry that when Mst. Adya Bai came to Isanagar in March 1938 she was paid 8 months' guzara and that the last monthly amount which she was paid would have been the amount due to her at the beginning of March. It follows that if she was paid for 8 months she was paid the amounts due to be paid at the beginning of August, September, October, November, December, 1937, and January, February and March 1938. The payment of this amount however is not what we are expected according to the prosecution case, to suppose that she was actually paid, because it is said that she was told that she would be paid the guzara which had been embezzled when the case came to an end, and included in the guzara said to be embezzled was the guzara payable in August 1937. It follows that when Mst. Adya Bai was paid guzara by the Raja in March, 1938 and she was not being paid any of the amounts which had been embezzled, she was only due to receive seven months' guzara and not 8 months' guzara. It follows that when Mst. Adya Bai was paid guzara by the Raja in March, 1938 and she was not being paid any of the amounts which had been embezzled, she was only due to receive seven months' guzara and not 8 months' guzara. The defence theory is that the payment which was made on the 19th March, 1938, was the 8 months' guzara" alleged to have been embezzled by the accused and it is contended that this payment was really made because the Raja knew that he had received this money 'and it was his duty to pay it to Mst. Adya Bai. It is suggested therefore that the entry No. 318 of the 19th March, 1938, in the advance register Exh. F, has really been altered to suit the prosecution case. The learned Magistrate who tried the case thought that this entry as originally made was "babat guzara lagayat August 1937" that is in respect of guzara due upto August 1937, that is including the payment due to be made in that month. He recognised that as the entry now appears "babat guzara lagayat August 1937 ta March 1938 iswi" the word "lagayat" is completely redundant, and he thought that the explanation must be that the words "ta March 1938" were put in subsequently by Lachhmi Narain the writer of the register in order to suggest that what was paid in March, 1938, was the 8 months then due, being the guzara of the 8 months subsequent to the months for which cheques, Exhs. 9 to 17 were drawn. 30. The learned Additional Sessions Judge attempted to get out of this difficulty by suggesting that Lachhmi Narain's knowledge of Urdu was defective. We think this explanation entirely unsatisfactory because we find that he has used the word "lagayat" in several other entries in this register in such a way as to show that he understands its meaning, namely "upto a certain date. It is of course impossible to say from the appearance of the entry that the words "ta March 1938" have been interpolated, but that is no proof that they have not been interpolated. They do not take up much room and it was easy for Lachhmi Narain to put them in. In our opinion in the light of the fact that in March 1938 Mst. They do not take up much room and it was easy for Lachhmi Narain to put them in. In our opinion in the light of the fact that in March 1938 Mst. Adya Bai was not due 8 months' guzara subsequent to the months in question, this entry is highly suspicious and throws great doubt on the whole prosecution theory of embezzlement. The learned Magistrate has pointed to several other good reasons for doubting the truth of the prosecution case and on an examination of the papers we have found numerous others to which he has not referred. It was the prosecution theory that the accused went away from Isanagar at the end of January, 1938, leaving all his papers locked up, that notices were sent to him and that on the 22nd March, 1938, Roshan Lal the Raja's Secretary went to the accused's house at Lucknow and obtained from him a letter Exh. 28 which contains an admission of his general liability in respect of amounts totalling about Rs. 2,000. The defence story about this document was that it was not written at Lucknow on the 22nd March but that the accused himself came back to Isanagar at the end of March and fell ill there, a fact which learned Counsel supporting the reference does not seek to dispute. It was said that while he was at Isanagar and in a very feeble state of health this writing was obtained from him by undue influence. The learned Magistrate believed the evidence that the accused was at Isanagar at the beginning of April and was very ill and he also believed the evidence that he was net at Lucknow on the 22nd March. We find numerous reasons for thinking that the story told by the prosecution about this document, Exh. 28, is not true. It was said by Roshan Lal that he must have waited two or four days for the reply of the accused after he had got notice given to the accused through Chandrika Prasad before he went to Lucknow. The notice is on the record as also the registration receipt in respect of the despatch of this notice from Kheri, Exh. 30. The registration receipt of the Kheri postoffice is dated the 22nd March, and it follows that Roshan Lal could not have gone to Lucknow until about the 26th March. The notice is on the record as also the registration receipt in respect of the despatch of this notice from Kheri, Exh. 30. The registration receipt of the Kheri postoffice is dated the 22nd March, and it follows that Roshan Lal could not have gone to Lucknow until about the 26th March. Then again it is a curious fact that the letter Exh. 28 which is relied upon as having been written by the accused at Lucknow on the 22nd March, although dated the 22nd March shows signs of hesitation in regard to the figures for the day. It looks as if the accused had at first written some other date but had been asked to correct it. Another odd feature of this letter is that it contains a remark by the writer that he is in a poor state of health which was certainly the fact if the letter was written at the beginning of April, but this remark (is waqt meri halat kuchh kharab hai) was scored out. An examination with a magnifying glass of the figures which now read as 22 in the date of this letter shows that the writer originally wrote a single figure and followed by a full stop. He then overwrote the figure which he had written with a "2" and followed it with another "2" which he wrote over the full stop. This is a very clear indication that the letter was actually written in the first nine days of a month but the date was altered to suit the person who was getting the letter written. In our opinion this letter Exh. 28 in so far as it purports to be a confession was rightly rejected by the Magistrate as completely worthless. 31. We note certain other facts in regard to this case which appear to us to have fully justified the Magistrate in the course he took. The letter in question purports to have been written on the 22nd March, but as we have shown it was almost certainly written at a much later date. Roshan Lal having obtained Exh. 28, wrote a letter Exh. 33 which he dated 23rd March sending Exh. 28 to the Raja. The Raja endorsed upon it on the 5th April, 1938, "Seen. Roshan Lal having obtained Exh. 28, wrote a letter Exh. 33 which he dated 23rd March sending Exh. 28 to the Raja. The Raja endorsed upon it on the 5th April, 1938, "Seen. Orders passed." One cannot help wondering why it took the Raja 13 days to pass orders on the letter of the 23rd March. In our opinion the date of this order endorsed by the Raja is another strong support for the defence theory in regard to Exh. 28. The subsequent conduct of the Raja is also peculiar. The order which the Raja is supposed to have passed on the 5th April is Exh. 34 which however is dated the 5th May. It runs as follows: Secretary, My suspicion proved to be true. These were the reasons (or his not coming back to duty. Now please go into his papers and try to find out as far as possible amount of money he has embezzled. For there is no other way but to find out through his papers. The report and his letter be kept very carefully. The report be sent con fidentially to me 32. On the 30th June Roshan Lal sent another report to the Raja in which he says, In compliance with your order of the 5th of May, 1938, I beg to report that the condition of the accounts and papers is most miserable and it is very difficult to find out the real amount of money embezzled until and unless the Accountant himself is present but I have seen the accounts of gurwain, Newal Kishore Press, Lucknow and Rs. 40 out of the pay of Chandrika Prasad Mukhtar. These amounts have been drawn from the estate treasury by the Accountant but have not been paid to the real payees. Submitted for orders 33. The Raja found no difficulty in passing orders on this report the very same day, as appears from an endorsement made by him on it, although those orders are not on the record. Instead of those orders we have on the record Exh. Submitted for orders 33. The Raja found no difficulty in passing orders on this report the very same day, as appears from an endorsement made by him on it, although those orders are not on the record. Instead of those orders we have on the record Exh. 33 dated the 10th July a typed order which, runs as follows: Secretary, I am really shocked to read your report of the 30th of June, 1938, I was under the impression that the Accountant was not a cheat but his long absence without leave made me suspicious and so I asked you to go to Lucknow to find out the reasons. Your report and his letter in support of your report made my Suspicion true and this report of yours clearly points out certain items as well. Under the circumstances no way is left out to me but to dismiss him and order his criminal prosecution. Please take immediate action 34. On this order there is endorsed an order in Urdu dated the 11th July to Chandika Prasad and a report dated the 14th July by the said Chandrika Prasad. Bearing in mind that the whole story about Roshan Lal going to Lucknow on the 22nd March shows every sign of being false, this order Exh. 32 signed by the Raja appears to us to be an utterly disingenuous document. It is intended apparently to show that the Raja has been kind hearted and long suffering and had been the very last person to have any suspicion against the accused. 35. In the light of the numerous papers on the record which bear his signature and of the fact that the person sinned against according to the whole of the prosecution story was the Raja himself, and the further fact that the Raja himself checks and counter signs his accounts and was the very best person to explain everything in regard to the method of management and account keeping of the estate, we think that this was a case in which the complainant should have been the Raja himself. Even if he did not desire to go to Court to file the complaint, the Raja did at any rate owe a duty to the Court to put himself in the witness-box, prove the course of events as they were known to him and submit himself to cross-examination but he has kept himself carefully screened behind his servants, his Secretary Roshan Lal, about whose conduct we have made remarks above, Chandrika Prasad Mukhtar whose claim was a comparatively small one, and Lachhmi Narain treasurer whose evidence has been criticised very severely by the trial Court which considered it necessary to issue notice to him to show cause why he should not be prosecuted for perjury. 36. Learned Counsel supporting the reference has had really to base his whole case on the alleged conduct of the accused and particularly on his failure when examined as an accused by the Magistrate on the 23rd November 1938, to furnish a complete and satisfactory explanation of the facts in evidence. What the accused said in regard to this amount of Rs. 273-6-0 was that so far as he remembered he only received a part of this sum and disbursed the money which he did receive. In regard to the cheques Exbs. 9 to 17 he said that it had often happened that the receipt was taken but the money was not actually paid to him. He denied having embezzled this money and said that whatever money he received he disbursed. In regard to Exh. 28 he said that this writing was taken from him at Isanagar while he was ill at the beginning of April and it was got written by him under the threatening of Mr. Roshan Lal and the Raja Sahib. Another document Exh. 29 was put to him which we have not thought it necessary to discuss. In the light of the examination of the facts which has been forced upon us in this case we do not think that the replies given by the accused are other than they should have been. He has never been able to say that in fact these monies were taken by the Raja but he has placed before the Court which strongly suggest that they must have gone to the Raja, and that that was why he paid off Mst. Adya Bai in March 1938. 37. He has never been able to say that in fact these monies were taken by the Raja but he has placed before the Court which strongly suggest that they must have gone to the Raja, and that that was why he paid off Mst. Adya Bai in March 1938. 37. On a full consideration of the facts which have been put before us by learned Counsel we are satisfied that the prosecution in this case did not come into Court with clean hands. The conduct of the Raja, the conduct of Roshan Lal and the behaviour of Lachhmi Narain coupled with the numerous facts to which our attention has been drawn amply justified the Magistrate in giving the accused Mohammad Jafar the benefit of the doubt, and in our opinion this is not a case in which a recommendation should have been made to us to set aside the acquittal and order a retrial. In point of fact we think that District Magistrates and Sessions Judges should make such a recommendation only in the clearest possible cases of errors of law or procedure or completely perverse and un-reasonable judgments. The learned Additional Sessions Judge would have been much better advised to leave the applicant to come to this Court himself with a application in revision against the order of the learned Magistrate. 38. In our opinion this is a reference which should not have been made. We reject it and direct that the papers be returned to the Court below