THADANI C. J: We have before us in revn the case of one Rathindra Nath Sen who was convicted by the learned 1st Class Mag of Karimganj under S. 420, I. P. C., & sentenced to R. I. .for 2 years & to pay a fine of Rs. 500/-, or, in default, to undergo further R. I. for 6 months. On appeal, his conviction & sentence were confirmed by the Addl Ses J., U. A. D. (2) The material facts as alleged by the pro­secution are these: On 5-3-46, one Uma Babu, the then local agent of the Pioneer Bank, with whom one Francis, the complainant in the case, had a current account, saw the complain­ant with demand draft for Rs. 30,000/- drawn by the East India Commercial Bank, Nahar­katia Branch, on its head office at 7, Swallow Lane, Calcutta, in favour of the appct .Rathindra Nath Sen & asked the complainant if he could pay the appct Rs. 30,000/- on the .strength of the draft. The complainant desired to see the appct personally. Accordingly on 6-3-46 the appct went to the complainant A told him that he had to pay some money immediately to a film Co. which had come to .Bhanga for shooting scenes & requested the compiainant to advance Rs. 30,000/- on the .strength of the draft. The complainant agreed & drew a cheque, being cheque No. 14076 dated 6-3-46, in the sum of Rs. 30,000/- on the Badar­pur branch of the Pioneer Bank. The appct presented the cheque of Rs. 30,000/- drawn by Francis in his favour to the Pioneer Bank which paid the appct Rs. 5000/- in cash & •issued a demand draft in the sum of Rs. 25,000/- drawn on the Calcutta branch of the Pioneer Bank. (3) The complainant Francis in his turn en­dorsed the draft of Rs. 30,000/- given to him by the appct in favour of the Pioneer Bank for collection. The Badarpur branch of the Pioneer Bank sent the draft to their Calcutta office which presented it for payment to the East India Commercial Bank, Calcutta, on 17-3-1946. The Calcutta Branch of the East India Commercial Bank, however, returned the draft with an endorsement that the endorse­ment made by the appct on the draft was irregular in that the letter 'a' had been written in place of 'o'. The Calcutta Branch of the East India Commercial Bank, however, returned the draft with an endorsement that the endorse­ment made by the appct on the draft was irregular in that the letter 'a' had been written in place of 'o'. In due course the appct corrected the error complained of & the complainant .again presented the draft through his bankers for collection, but the East India Commercial Bank, Calcutta, declined to honour the draft saying that the draft was irregularly drawn. (4) On these facts, Francis brought a com­plaint in November, 1946 before the Mag against 4 persons - the present appct, one Subhendu Bikash Lawha who has been acquitted, one J. M. Chakravarty who did not appear as he had gone away to Pakistan, & J. C. Chakravarty, the Managing Director of the Calcutta branch of the East India Com­mercial Bank, who moved 'the Calcutta H. C. for quashing the complaint with success. While quashing the complaint against J. C. Chakra­varty, the Calcutta H. C. observed that the Mag would be at liberty to issue fresh process against him if sufficient material was forth­coming at the hearing. No fresh process how­ever was ever issued^ against J. C. Chakravarty. (5) The only point which the learned Mag framed for determination was - whether the two accused persons (Rathindra Nath Sen fc Subhendu Bikash Lawha) were guilty of the offence with which they had been charged. It is manifest that the learned Mag was in error in setting forth the result of a case as a point for determination. (6) It appears that on 26-2-46, a week before the draft was issued by the branch office of the East India Commercial Bank, Mr. J. C. Chakravarty wrote a letter to Subhendu, the then Manager of the Naharkatia branch of the East India Commercial Bank, who has been acquitted by the learned Mag stating that tha appct was in need of Rs. 30,000/- a sum which the head office was not in a position to ad­vance, & instructed Subhendu to accommodate the appct either in cash or by a draft ostensibly payable on demand but which was to be pre­sented at the head office for payment a fortnight after date when the head office would be in a better position to honour the draft. In accordance with the instructions of the Managing Director of the head office ,the Naharkatia branch of the East India Commer­cial Bank issued the draft in question. (7) While it may be conceded that at the time the appct obtained the draft from the branch office of the East India Commercial Bank he was a debtor to the bank to the ex­tent of some 35 thousand of rupees, & that the draft was not a cash draft but an accom­modation draft, these two circumstances with­out more do not necessarily lead to the infer­ence that the appct deceived the complainant & thereby obtained a sum of Rs. 30,000/- from him. The real question for consideration In a case of alleged cheating under S. 420, I. P. C., la - whether the appct practiced any deception & thereby obtained delivery of property. The complainant in this case filed his complaint some 8 months later on 20-11-46, presumably after the East India Commercial Bank had closed its doors in November, 1946. The com­plaint is in these terms: "The complainant begs to state as follows:' The accused 1 is a Bank service-holder, & is the Manager of the Bharati Central Bank & he was at Badarpur for many years as an officer of the Tripura Modern Bank & Commercial Bank. At that time, I was acquainted with him. The acquaintance had gradually become intense & ripened into friendship. Afterwarda he left Badarpur & lived at KarimganJ, In Cal­cutta & at different places on account of Bank & other affairs. At present he mostly lives In Calcutta. He presented at my residence on 6-3-46 last with a demand draft of Rs 30.000/- (rupees thirty thousand) from the East India Commercial Bank, Naharkatia Branch, signed by defts 475 in his name.. He convinced me to believe that he was in receipt of the draft after he deposited the amount of Rs. 30,000/- to the Bank. He told me that he was in Imme­diate need of money, but it was inconvenient to go up to Calcutta & bring his money. He asked me to pay him Rs. 30,000/- by accepting the draft. He instilled the blind faith in me by requesting me to get the draft -money from the East India Commercial Bank through my Banker, the Pioneer Bank, Badarpur Branch. He asked me to pay him Rs. 30,000/- by accepting the draft. He instilled the blind faith in me by requesting me to get the draft -money from the East India Commercial Bank through my Banker, the Pioneer Bank, Badarpur Branch. At this, I plainly believed his words & think­ing the Draft signed by defts 4/5 to be genuine & that I would easily get money by that, & with plain belief, I handed over to him the cheque of the value of cash Rs. 30,000/-. And he means the deft 1 regularly endorsed the draft in my favour. Afterwards on the strength of the cheque, he received my right to cash Rs. 30,000/- from the branch of the Pioneer Bank at Badarpur. According to his advice, in order to pay the draft money, I advised my Banker & endorsed the draft in name of the Bank. Alter this the said Pioneer Bank, in order to pay its draft money, sent the draft to defts 2/3 through their Calcutta Branch. They at first making the 'o' of the word 'Rathindra' 'a' of the draft & returned with the remark that the endorsement of the deft 1 was irregular, 'o' was written there & it can be easily understood that it was an act of interpolation when compared with other letters. Whatever the case may be, the deft 1 wrote his name again with letter 'a' as I directed & sent draft to the defts 2/3 after endorsement, & this was returned for the final time with the remark that the draft was drawn irregularly & refused to pay my money. There had been much correspondence with the defts regarding this. But the defts refused to pay my dues by showing various irrelevant & false arguments. All the defts mutually & jointly with the motive of cheating me & making me believe in my simple faith through the deft 1 cheated me & misappropriated my right of cash Rs. 30,000/-. Had I not been compelled to believe blindly with the said draft, I would never have paid the money on good faith. In order to cover up their guilt the defts may change their khatas etc. "It is prayed for a fair trial after passing order to issue search warrant against the said East India Commercial Bank in Calcutta & for seizing the khatas etc., of Naharkatia. Finis. In order to cover up their guilt the defts may change their khatas etc. "It is prayed for a fair trial after passing order to issue search warrant against the said East India Commercial Bank in Calcutta & for seizing the khatas etc., of Naharkatia. Finis. 20-11-46." (8) In his examination to the Mag upon the complaint, the complainant stated "Rathen assured me that the draft would be honoured if sent through my bankers to the head office of the East India Commercial Bank after a fortnight. I agreed." The statement of the complainant in the com­plaint that the appct convinced him to believe that he was in receipt of the draft after he deposited the amount of Rs. 30,000/- to the Bank" would appear to be inconsistent with what the complainant had stated in his exami­nation to the Mag. Even if this statement in his examination is inconsistent with what he had stated in the complaint, it was scarcely necessary for the appct to disclose whether he had obtained the draft in exchange for value paid or whether it was an accommodation draft. The circumstances in which the appct was accommodated by the East India Commer­cial Bank was a matter between the bank & the appct & had nothing to do with the com­plainant. By the dismissal of the complaint against J. C. Chakravarty, the question of a conspiracy between him & the appct must be answered in the negative. Doubtless there was an obligation upon the appct to disclose the material fact to the complainant - a fact upon which the Managing Director of the East India Commercial Bank had insisted, namely, that the draft should be presented a fortnight later for payment. This fact was admittedly dis­closed to the complainant. The complainant is a man of the world. We think he must have known from the request made by the appct to him not to cash the draft until after the expiry of a fortnight from date that the. draft was in all probability an accommodation draft, & not a draft for which value had been paid. (9) It was contended by Mr. We think he must have known from the request made by the appct to him not to cash the draft until after the expiry of a fortnight from date that the. draft was in all probability an accommodation draft, & not a draft for which value had been paid. (9) It was contended by Mr. Medhi the learned counsel for the prosecution that sup­posing the letter of the Managing Director of the East India Commercial Bank, Calcutta, to their branch officer was in existence before the draft was drawn, it was the duty of the appct to apprise the complainant of the entire con^ tent of the letter; the failure of the appct in this behalf was a suppression of fact which amounted to cheating within the meaning of the Expln to S. 415, I. P. C. We do not think that the non-disclosure of the entire contents of the letter of the Managing Director of the East India Commercial Bank, Calcutta, was a suppression of fact - a suppression which amounted to deception - in the circumstances of this case. The most important circumstance in the case which tends to negative any dis­honest intention on the part of the appct is flthe fact that on 14-3-46 he actually paid in a sum of Rs. 25,000/- out of the cheque of Rs. 30,000/- which has been paid to him by Francis into his (appct's) account with the branch office of the East India Commercial Bank. Mr. Medhi contended that this amount of Rs. 25,000/- was paid on 14-3-46 not with a view to enable the East India Commercial Bank to meet the draft, but to reduce the overdraft account of the appct. This is merely a sur­mise. On the other hand, it appears from the ledger kept by the branch office of the East India Commercial Bank that ever after the draft was drawn, the overdraft account of the appct was in the neighbourhood of Rs. 50,000/-. There is no evidence on the record that the arrangement for an overdraft between the appct & the East India Commercial Bank was limited to any specified sum. There is yet another circumstance which tends to negative the con­tention of Mr. Medhi that the amount of Rs. 25,000/- was credited to the account of the appct merely to reduce his overdraft. It is in evidence that on receipt of the draft of Rs. There is yet another circumstance which tends to negative the con­tention of Mr. Medhi that the amount of Rs. 25,000/- was credited to the account of the appct merely to reduce his overdraft. It is in evidence that on receipt of the draft of Rs. 30,000/- by the head office, the head office actually debited the appct with Rs. 30,000/-. It is reasonable to suppose that when the debit entry was made against the appct by the East India Commercial Bank on receipt of the draft on the first presentation, the East India Com­mercial Bank fully intended to honour the draft after the error to which reference has been made had been rectified. These two cir­cumstances tend to show that at the time the appct negotiated the draft with the complain­ant, there was no question of the Bank refus­ing to honour the draft on presentation after a fortnight from the date of the draft to the knowledge of the appct. Indeed when the draft was in fact presented, the East India, Commercial Bank did not say that it would not honour the draft; on the contrary, it indi­cated that it would honour the draft after a certain error had been rectified. Moreover, it was not until 19-4-46 that the East India Com­mercial Bank cancelled the draft. The delay in cancelling the draft for more than a month after it had been first presented shows that it was only after the 2nd presentation that the bank, for reason of its own, decided not to honour the draft. The endorsement, namely the draft was irregularly drawn, made on the draft by the East India Commercial Bank when it was presented to it a second time, tends to show that on the first presentation the Bank had every intention of honouring the draft, but on account of paucity of funds or for rea­sons of its own, it decided not to honour the draft. The 2nd endorsement of the East India Commercial Bank cannot be interpreted to the prejudice of the appct in a Criminal Case. (10) The learned Mag has stated in his judg­ment at p. 40 of the Paper-Book. The 2nd endorsement of the East India Commercial Bank cannot be interpreted to the prejudice of the appct in a Criminal Case. (10) The learned Mag has stated in his judg­ment at p. 40 of the Paper-Book. "In his initial examination the complainant said that he was about to present the draft for collection but Rathindra assured him that the draft would be honoured if sent to the head office of the East India Commercial Bank after a fortnight." This statement is not accurate in the sense that the complainant did not say that he was about to present the draft for collection; what he said was that the appct assured him that the draft would be honoured if sent through the Pioneer Bank to the head office of the East India Commercial Bank after a fortnight. Apart from this inaccuracy, the learned Mag has stated "This statement made by the complainant in his initial examination is not enough to come to the conclusion that the complainant knew the contents of the letter, Ex. B (4)." As we have observed, there was no obligation on the appct to disclose the entire contents of the letter to the complainant. The only obliga­tion upon him was to disclose the fact that the draft would be honoured if presented after a fortnight, & that obligation was discharged. The learned Mag has also fallen into an error in taking the view that Uma, who was not exa­mined by the prosecution, should have been examined by the appct. There was no obliga­tion on the appct to examine Uma. The pro­secution should have examined him & if he had proved hostile, the prosecution could have sought permission of the Ct to cross-examine him. The rest of the observations made by the learned Mag at p. 40 of the Paper-Book are observations based upon suspicion & are of no assistance in coming to the conclusion that at the time the appct negotiated the draft with the complainant he knew that the draft would no be honoured & thereby practised deception upon the complainant in obtaining from him a sum of Rs. 30,000/-. 30,000/-. The learned Mag has referred to gist of the letters which passed between the branch Manager of the East India Commercial Bank & the complainant, but we are not prepared to say that these letters have any positive bearing upon the question of the presence of a dishonest intention in the mind of the appct at the time he negotiated the draft with the complainant. (11) The learned Ses. J. on appeal on the question of the disclosure of the contents of the letter of J. C. Chakravarty by the appct to the complainant stated "Might be that the complainant came to know all those conditions & yet accepted the draft & parted with the amount (Rs. 30,000/-) in exchange for that draft. But in any case, the draft in question being a demand draft, it meant that payment would be made at sight or that at any rate, the payment would be made after presentment for sight." We are unable to follow the reasoning of the learned Judge in the passage "But in any case, the draft in question being a demand draft, it meant that payment would be made at sight or that at any rate, the pay­ment would be made after presentment for sight." If the complainant knew all that was written in the letter of 26-2-46 as the learned Ses J. .thinks it might well be, it follows that the complainant knew that it was an accommo­dation draft which the Bank had agreed to-honour if it was presented after a fortnight. The learned Ses J. is in error in thinking that the consideration for a draft must always be cash. If that were so, the expression "accom­modation draft" would be meaningless. The learned Ses J., like the learned Mag, has laid, stress upon the fact that the Managing Direc­tor of the East India Commercial Bank was interested in film business with the appct. If that were so, the expression "accom­modation draft" would be meaningless. The learned Ses J., like the learned Mag, has laid, stress upon the fact that the Managing Direc­tor of the East India Commercial Bank was interested in film business with the appct. We do not think any inference can be drawn from the fact that the Managing Director of a Bank is interested in other business dealings with a client of the bank, & that his readiness to accommodate him in financing the business by an accommodation draft is necessarily evidence •of a conspiracy to cheat in a case where he decides, for reasons best known to him, not to honour the accommodation draft after he debits the client with the amount of the ac­commodation draft when it is presented. (12) Mr. Medhi, in the course of his argu­ments realised the difficulty in the case created by the existence of the letter which the Managing Director of the East India Commer­cial Bank had written to the branch office & the material portion of which was disclosed by the appct to the complainant & so, for the first time in this Ct, contended that the letter written by the Managing Director on 26-2-46 was not in existence at all & that the appct could not, therefore, have told the complainant that the draft would be honoured if it were presented after a fortnight. Apart from the fact that this contention has been raised before us for the first time, we think there is no force in it at all. We are satisfied that the letter of the Managing Director was in fact written on 26-2-46 - a fact which is corroborated by the endorsement of the appct on the counterfoil of the draft in which he acknowledges the re­ceipt of the draft, the endorsement being dated, (the 17th, & not the 3rd of March, 1946. A reasonable interpretation of this endorsement is that the bank agreed to charge interest only after the 17th when it is intended to honour the cheque. (13) We do not think, therefore, that on the facts of this case it would be safe to infer any dishonest intention on the part of the appct at the time he negotiated the draft. (13) We do not think, therefore, that on the facts of this case it would be safe to infer any dishonest intention on the part of the appct at the time he negotiated the draft. We are not satisfied that when the appct told the complainant that the draft would be honoured if it was presented 14 days after date, he be­lieved the statement to be false. The circum­stances to which we have referred in our judg­ment tend to show that the appct honestly be­lieved that when the draft was presented 14 days after date, it would be honoured. As Harries, C. J. pointed out in the case of 'Mati-lal v. The King', A IR (36) 1949, Cal 586: (51 Cr L, J 115) "If the person making the representation honestly believed the representation to be true, there can be no question of cheating. But if he knew that the representation was false & he made it with a view that the other person should act upon it, then that would amount to cheating." On the facts & circumstances of this case, we .are satisfied that the appct, when making the jrepresentation that the draft would be honoured I if presented after a fortnight from date, he Ibelieved it to be true. There can, therefore, be Ino question of cheating. (14) In the result we set aside the conviction & sentence passed upon the appct & acquit him. His bail bond will stand discharged. The Rule is made absolute. (15) RAM LABHAYA J: I agree. V.B.B. Rule made absolute.