Abinash Chandra Bose v. Bimal Chandra Bose

Judgment

..imrif.far 1Ra,.10n and Silk Mills TJltir·.Workmen <;hJj~dragadkar J. 19~11 '564 SUPREME COURT REPOH.TS (1963) ·should· be treated as the invariable rate in' the· gratuity schemes. On the inatetial adduced before us, we are not preparetl ·to hold that the basis adoptPd by the award under appeal ·has made either a violent or radical departure fromlthe pattern prevailing in the same industry in the ''unjab or is otherwise unjustified on the merits. The fact that we decline to interfere with the rate prescribed by the award under appeal does not also mean that according to us, that rate should be adopted in other cases without reference to the relevant facts in each tlf them. The result is, the awar<l is modified by prescribing a ceiling of 15 month's basic wages. The rest of the award is confirmed. There would be no order as to costs. ABINASH CHANDRA BOSE BIMAL CHANDRA BOSE (B. P. SINHA, C, J., K. N. WANCHoo and J. c. SHAH, JJ.)

Criminal Breach of Trust-Prosecution of lawyer by client- Hand-writing expert neither called nor examined-Acquittal by trial Magistrale-Retrial and examination of expqr/ directtrl by High Court on appeal~Propriety. The appellant, a practising lawyer engaged by the respondent to investigate title in respect of a property which the latter wanted to purchase, was prosecuted by him on a charge under s. 409 of the Indian Penal C_ode for misappro· priating a mm.of Rs. 50001· entrusted to him for that purpose. The prosecution mainly depended on a letter written by the appellant which would show that a sum of Rs. 4200/· out of the said amount of Rs. 50001- had been asked for by the 11ppellant. This letter was challenged as a forgery by the 3 s.c.:R. appellant. The respondent did not call a hand-writing expert nor was he denied an opportunity to do so. The trial Magistrate held that the pro)lecution case had not been proved and acquitted the appellant.

The High Court on appeal by the respondent set aside the order of acquittal on the ground that the appellant was a practising lawyer in fiduciary relationship with his client and directed that the appellant be retried by another Magistrate with opportunity to the respondent to examine a· hand-writing expert in order to establish the genuineness of the said letter. It held that since the case was one not between ordinary litigants but between a lawyer and.his client, involving a fiduciary relationship, no steps should be spared to ensure complete justice between the parties and the case must be sent back even though the prosecution did not avail of the opportunity of proving its own case. Held, that the order of the High Court were entirely erroneous and must be set aside.

There was no ground for directing a retrial and the appellant could not be put to a second trial for the same offence 'simply because of the failure of the complainant to adduce all the evidence that should, and could, have been adduced. The fact that the appellant was a lawyer could make no difference and the same rules of criminal jurisprudence that applied to all must apply to him. Further, the High Court was not exercising disciplinary jurisdiction and no relationship of lawyer and client was involved in, the,crimioal case. CRIMIN.AL APPELLATE JurusDIOTION: Criminal App~al No. 119 of 1961. Appeal from the judgment and order dated December 21, 1960, . of the Calcutta High Court in Cr. A. No. 423 of 1958. P: .K. Ohakravarty, for the appellant. S. 0. Mazumdar, for respondent No. 1. D. N. Mukherjee, P. K. Mukherjee for P . .K. Bose, for the respondent No. 2. 1962.

Augnst 3. • The Judgment of the Court w~a,dEjlivered by SINHA, C.J.-This appeal, on a certificate of fitness .granted 1by the High Court under Art. 134(1) ( 0 ) 190ll Abina:rh C~an//ra Bose Blmal Ch'andra Bou · 8inAa C.J. 196S Abint.:tsh Clra..ndra /!ose · {l•ma~ <~:haiidr3_ ~1 Sinha C •. 1 • of the Constitution, is directed against the order of a Division Bench of the Calcutta High Court, dated DecembP,r 21, 1960, setting aside the order of acquittal passed by the trial Magistrate, dated July 2, 1958. We heard this appeal on the eve of the long. vacation and pronounced our order to the effect that the appeal was allowed and the order of acquittal was to stand, and that reasons would given later. It( appears that the appellant, who is a practising lawyer, had been employed by the respondent to work for him to investigate the title to some property which the latter was about to purchase, sometime in October 1952. The prosecution case was that the respondent had entrusted the sum of Rs. 5000/- to the appellant for depositing in Court in connection with an applicatian in respect of the proposed transaction, under the Bengal Money Lenders'

Act, and that the appellant having been so entrusted with the money, in breach of trust, misappropriated the amount, thus causing loss to his client. The appellant was, therefore, charged under s. 409 of the Indian Penal Code, with having committed criminal breach of trust in respect of the sum of Rs. 5000/-, which had been entrusted to him as a lawyer on behalf of the respondent. The appellant defence was that the case against him was false and that he had been falsely implicated for reasons which need not be stated. In order to substantiate the charge ·against him, the complainant (now respondent) examined .himself and a number of witnesses. He also adduced in evidence a certain document, markeed Ex. 1, purporting to be a letter in the hand writing of the appellant, to show that Rs. 4200/- being a portion of the amount of Rs. 5000/- required for the deposit, had been asked for by the appellant.

It also contained writings in the hand of the complainant showing that there was correspondence in the matter I 3 S.C.R. of the deposit. , That was a very important piece of evidence, which if genuine could go a long way to prove the case against the appellant. But the appellant challenged the document as a forgery in material parts, and cross-examined the complainant who had produced the document. In spite of the fact that the complainant was very pointedly cross-examined with a view to showing that the document placed before the Court was a forgery in material parts, the complainant did not take any steps to get an expert on handwriting examined. The trial Court, on an examination of the evidence, oro,l and documentary, came to the conculusion that the case against the accused had not been proved and acquitted him. The complainant preferred an appeal tD the High Court against the order of acquittal, which was heard by a Division Bench.

Tbe High Court took the view that, in the circumstances of the case, there should be retrial by another magistrate, who should give an opportunity to the complainant to adduce the evidence of a handwriting expert in order to establish the genuineness of the questioned document. Apparently, the High court, sitting in appeal on the judgment of the acquittal, passed by the learned Magistrate, was not satisfied as to tho genuin,mess of the questioned document. Otherwise it could have pronounced its judgment one way or the other, on the merits of the controversy, whether or not the prosecution had succeeded in bringing the charge home to the accused. If it were not a case between a lawyer as an accused and his client as the complainant, perhaps the High Court may not have taken the unusual course of giving a fresh opportunity to the complainant to have second round of litigation, to the great prejudice of the accused.

In this connection, the following observations of the High Court may be extracted in order to show the reasons for the unusual course it took in this case: A.binJBh Oha.1dr 1 Bos•- Bimal Chandra 1'm,- Sinha C.J, Abina sh 'Cflond1 /J BO Se B1lnal C!raitdrtl BOse Sinha C.J. 568 SUPREME ·COURT REPoRTS-{i963j "Thus there can be no doubt that this was a c'locument of considerable importance. According to the prosecution it clearly showed the respondent's connection with the sum of Rs. 4200/- which was a part of the sum of Rs. 5000/-, the subject matter of the charge. According to the respondent, the figures 4200 and the Bengali word 'sankranta' were forgeries just as at the bottom of the document the word 'yes' and the signature of the. respondent with date were also forgeries.

This case was clearly put by the respondent to Bimla Krishna Sen and it was suggested to him that the impugned portions of the documRnt were clear forgeries made by the appellant in order to falsely implicate the respon~ dent. It must be said that inspite of this· challenge, the appellant took no steps whatever to produce expert evidence to aid the court in coming to a conclusion as to the authorship of the impugned portion of the document. It is true that expert evidence cannot always be a final settler; still in a case of this kind, it is eminently desirable that ·the court should be assisted by a qualified expert since almost the whole case depends upon proof of the fact whether the impugned portions · of that document were in the hand of the respondent ......... Comment was also made by the Magistrate on the appellant's failure to call expert evidenc9.

In one sense that comment was justified; but:i in a case of this kind between law1er and client we think the matter• cannot be 0left· where it is. In view of the fiduciary relation"' ship between the·parties it is as much necessary in the· interest of-the prosecution as ·in the interest of the accused that • the whole · matter should be cleared" up, and•no steps• j 7 3 S.GJt. ; SUPREME COWT REPORTi should be spared whicli might ensure comp: · · _ 19B~ lete justice ·between the parties. If it were. . - b. 77 d an ordinary case bet'Ween one litigant and.

A tnasB~ean Tl another, we might have hesitated at this dis- . l c v. d, t . 'b k Bima han ra Be,. ta.nee o time o sen .t e case ac even though the prosecution did not avail of the the opportunity of proving its·own case." · In all civilised countries, criminal jurisprudence has firmly established the rule that an accused person should not be placed . on'. trial for the same offence· more than once,' except iµ:very exceptional circumstances. In this .case, the. qomp)aintant had the fullest opportunity of 8.~ducing · all the evidence that he was advised would be necessary to prove. the charge against the '.accused person. It ·was not that he , proved for the ·,examination of an expert and that opportunity had been denied to him. The prosecution. took its chance of having a decision in its favour on the1evidence adduced by it before the trial Court. That Court was ·not, satisfied that that evidence was adequ~tely; .r.elfable to bring the charge home :to the accused ..

The accused was thus acquitted. On appeal, it ~as open to the Hight Court to take a' different view; of the e\"idence, if the facts and circumstances placed before it· could lead to the. conclusion that the a.ppreciatfon of the evidence , by the, trial Court was so . thoroughly erroneous as ~~ .be.·wholly unacceptable to the Appellate Cour.t. If the High Court could come to the conclusion, . it could have· reversed the judgment and converted the order of acquittal into an order of oonvictioi:J.. But it should, not have put the accused to_the botherstion and expense of a second trial simply because the prosecution did not adduce all the evidence that should, and could, have been brought before the Court of first instance. · It is not a case where it i1 open to the Court of Appeal, against an order of a.aquittal, to order a retrial for the reasons that ' Sinha C.J. ~bimtsh Ch1ntlra Bose n,im•I Chontira •ose Sinha C.J. 570 · the trial Court has not given the prosecution full opportunity to adduce all available evidence in support of the prosecution case.

It has no where been suggested that the trial Magistrate had unreasonably refused any opportunity to the prosecution to adduce all the the evidence that it was ready and willing to produce. That being so, the High Court, in our juilgment, entirely misdirected · itself in setting aside the order of acquittal and making an order for a fresh trial by another Magistrate, simply on the ground that the case was between a lawyer aBd his client. Simply because the accused happened to be a lawyer would not be a ground for subjecting him to harassment a second time, there being no reason for holding that his prosecutor had not a fair chance of bringing the charge home to him. In our opinion, the High Court gave way to considerations which were not relevant to a criminal trial. The High Court was not sitting on a disciplinary proceeding for profes- · sional misconduct.

It had to apply the same rules of criminal jurisprudence as apply to all criminal trials, and, in our opinion, the only reason given by by the High Court for ordering retrial is against all well-established rules of criminal jurisprudence. The fact that the appellant is a practising lawyer does not entitle him to any pr!)ferential treatement when he is hauled up on a criminal charge, even as he is not subject to any additional disability because the case was between a lawyer and his olient. · There was no relationship of lawyer and client so far as the criminalcase was concer·ned. Hence, in our opinion, the order of retrial passed by the High Court is entirely erroneous and must be set aside. Appeal al'lowed. I