Almohan Das & Ors Vs. State of
West Bengal [1968] INSC 258 (25 October 1968)
25/10/1968
ACT:
Criminal Procedure Code 1898, ss. 207,A and
209--Committal proceedings--If Magistrate should be satisfied as to guilt of
accused or only that there is some credible evidence to sustain a conviction
before making order of commitment.--Circumstances in which High Court justified
in interfering with committal in revision.
HEADNOTE:
On a complaint filed by 'the Registrar of
Companies, and after an investigation by the Police ordered by the Chief
Presidency Magistrate, Calcutta, proceedings were instituted against the
appellants for conspiring to commit criminal breach of trust in respect of a
company's funds. After a large number of witnesses were examined and several
documents were tendered in evidence, the Magistrate committed the accused to
stand trial for offences under s.
120B read with Sections 409, 477A I.P.C.
before the Court of Sessions. A revision application against the order of
committal was rejected in limine by the High Court. In appeal to this Court it
was contended on behalf of the appellants that there was no evidence on which
the order of commitment could be made and that under s. 209 (1) Cr. P.C., the
charge may be framed only if in the view of the committing Magistrate the
evidence on record is sufficient to justify conviction of the accused.
HELD: Dismissing the appeal:
On the facts, it could not by said that there
was no evidence on which a charge could be framed against the appellants or
that the evidence was so totally unworthy of credit that are order recording
the conviction against the accused could not be made..
Although in terms s. 209 'applies to cases
which are instituted otherwise than on a .police report, the principle
underlying that section also applies to cases which are instituted on a police
report. A Magistrate holding an inquiry has to see whether there is sufficient
evidence for commitment, and not whether there is sufficient evidence for
conviction. If there is no prima facie evidence or the evidence is totally
unworthy of credit, it is his duty to discharge the accused: if there is some
evidence on which a conviction may reasonably be based, he must commit the'
case. [525 A--C] Normally the High Court in a revision application flied
against the order of commitment under s. 207A will not enter upon a reappraisal
of the evidence on which the order of commitment is made. The High Court would
be justified in exercising its revisional jurisdiction where a substantial
question of law arises on which the correctness of the order of commitment may
be effectively challenged. But in other cases the trial before the Court of
Session should be allowed to run its course.
[522 G--523 B]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 129 of 1966.
Appeal by special leave from the judgment and
order dated March 21, 1966 of the Calcutta High Court in Criminal Revision No.
309 of 1966.
521 A. K. Sen, P.K. Chatterjee, M.M.
Kshatriya and G.S. Chatterjee, for the appellants.
B. Sen and P.K. Chakravarti, for the
respondent. The Judgment of the Court was delivered by Shah, J. Mahendra Lal
and Probhat Kumar Sarkar were the promoters, and Almohan Das was the first
Chairman of the Board of Directors of the Great Indian Steam Navigation Company
Ltd. Messrs. Das Brothers of which Almohan Das was the sole proprietor became
the managing agents' of the Company in 1945. On July 2, 1951, Das Group Ltd. of
which also Almohan Das was the principal Director took over the managing
agency.
The Registrar of Companies, West Bengal filed
a complaint in the Court of the Chief Presidency Magistrate alleging that
sometime between March 1, 1945 and December 31, 1947 a sum of .Rs. 7,23,031-9-6
was advanced by the.
Company to the managing agents Messrs Das
Brothers; that on July 2, 1951 Messrs Das Brothers resigned from the managing
agency and Messrs Das Group Ltd. took over the managing agency; that Almohan
Das was at all material times a director of the company and also a director of
Messrs Das Group Ltd. and the sole proprietor of Messrs Das Brothers;
and that the complainant had reason to
believe that Almohan Das with other directors of the company had committed
offences under ss. 86-D and 87-D of the Indian Companies Act, 1913. The
complainant requested that a thorough investigation .be made in the matter. The
Chief Presidency Magistrate, Calcutta, referred the case to the police for
investigation.
In the course of investigation of the
complaint referred to him, Sub-Inspector J.N. Mukherjee filed a First Information
against eight persons (including the five appellants in this appeal) charging
them with having, conspired to commit criminal breach of trust in respect of
the company's funds, falsification of accounts and making false returns,
balance-sheets and accounts, and in furtherance of the object of the conspiracy
with committing offences punishable under ss. 409 and 477A I.P. Code and under
s. 282 of the Indian Companies Act, 1913. After investigation, Sub-Inspector
Mukherjee submitted on February 29, 1958, a report under s. 173 of the Code of
Criminal Procedure in the Court of the Chief Presidency Magistrate for those
offences against seven persons including the five appellants.
The Presidency Magistrate, 9th Court, to whom
the case was transferred for trial, rejected the contention raised by counsel
for the defence that to a charge made against a director in relation to 522 the
affairs of the company, the Indian Penal Code can have no application, and the
prosecution, if any, may be instituted under the provisions of the Indian
Companies Act alone. The Magistrate also held that it was open to the police
officer to whom the case was referred for investigation to submit a charge
sheet of his own initiative and that the Court had jurisdiction to enquire into
the charge so made without the sanction of the High Court. A revision
application was filed in the High Court of Calcutta against that order, but the
application was rejected.
Proceedings were then resumed by the
Magistrate on December 5, 1961, and a large number of witnesses were examined
before him and several documents were tendered in evidence. On December 3,
1965, the Presidency Magistrate committed the accused to stand trial for
offences under ss.
120B read with 409 & 477A I.P. Code
before the Court of Session. He observed:
"....having regard to the entire
evidence on record and facts and circumstances of the case, I am convinced
prima facie that good grounds exist for framing charge under s.
409 I.P.C. against accused Almohan Das with
charge under s. 120B read with s. 409 I.P.
Code aaginst (1) Almohan Das, (2) Sisir K. Das,
(3) Nara Singha Pal, (4) Mohendra Lal Kundu and (5) Provat Kumar Sarkar,
another charge under s. 467 read with s. 34 I.P. Code against (1) Almohan Das,
(2) Nara Singha Pal, and (3) Mohendra L. Kundu for forging Ext. 5, and last
under s. 477A against (1) Aimoban Das, (2) Nara Singha Pal, (3) Mohendra Lal
Kundu,(4) Provat Kumar Sarkar and (5) Sisir Kumar Das in respect of
falsification of shareholders minute book (Ext. 18) purporting to ratify the
action of Almohan Das regarding the funds of the G.I.S.N. & Co. Ltd."
Against this order, a revision application was filed in the High Court of
Calcutta which was'rejected in limine.
Against the order passed by the High Court,
this appeal has been filed with special leave.
In the present case the order of commitment
was made under s. 207A of the Code of Criminal Procedure. Normally the High
Court in a revision application filed against the order of commitment under s.
207A will not enter upon a reappraisal of the evidence on which the order of
commitment is made. The High Court would be justified in exercising its
revisional jurisdiction where a substantial question of law arises on which the
correctness of the order of commitment may be effectively challenged, where
there is no evidence on which the order of commitment could be made, where
there has been denial of a right to fair 523 trial, where there is reason to
think because of failure to comply with the rules of procedure or conditions precedent
to initiation of criminal proceedings, where by ignoring the substantive law
which constitutes the offence, or misconception of evidence on matters of
importance grave injustice has resulted, and on similar other grounds. But in
other cases, interference with the order of the Magistrate committing the
accused for trial may not be justified and the trial before the Court of
Session should be allowed to run its course.
Counsel for the appellants submitted that
there was no evidence on which the order of commitment could be made. We do not
think that there is any ground for so holding. It was the prosecution case that
in order to commit criminal breach of trust in respect of an amount exceeding
Rs. 5 lakhs by allowing it to remain with Messrs Das Brothers--the previous
managing agents of the company of which Almohan Das was the sole proprietor and
from whom Messrs Das Group Ltd. took over the managing agency-a conspiracy was
entered into between the seven named persons, and the minutes book of the meetings
of the Board of Directors and the shareholders' minutes book were fabricated
and criminal breach of trust was committed in respect of the funds belonging to
the Company. It is true that in the balance sheet Ext. 137 for the year ending
December 31, 1952, on the assets side is an item 'Sundry Advances (Unsecured)'
inclusive of Rs.
5,78,941-7-0 due by a firm in which a
director of the Company was a partner. But this, it is the case of the
prosecution, was not supported by any resolution passed by the Board of
Directors. By letter dated June 21, 1956, the Additional Registrar of Companies
asked the Company to furnish a certified copy of the minutes of the Board of
Directors .in which the loan had been made to the managing agents of the
Company. In reply thereto by letter dated July 12, 1956, the Managing Agents
wrote that as the money was held by the managing agents and was not given or
treated as a loan, there was no resolution of the Board of Directors in that
connection. On September 29, 1956, the Additional Registrar of Companies again
wrote a letter .to the Company enquiring whether the amount of Rs. 5,78,941-7-0
which was lying with the previous managing agents of the Company Messrs Das
Brothers had since been realised, and if so, the evidence adjusting the
liability,. and if not, to intimate with material evidence whether any steps
had since been taken by the Company for the realization of the dues and how the
matter stood. in the course of the investigation the officer in charge attached
a directors' minutes book Ext. 5 which contains the minutes of a resolution
authorising Almohan Das to retain the funds of the Company.
Therefore, there was some evidence on which
the 524 charge for fabrication of the Director's Minutes Book may be sustained.
In dealing with the charge for fabricating
the Shareholders' Minutes Book the learned Magistrate has observed that the
materials on the record made out a strong prima facie case that the
Shareholders' Minutes Book Ext. 18 is also a forged document. The circumstances
which lent colour to the prosecution, in the view of the learned Magistrate
were--(1) that Ext. 18 starts from February 28, 1945, although the Company was
incorporated in 1942, (2) in many meetings the signatures of the shareholders
were not taken although in some meetings the shareholders signed the minutes
book, (3) resolutions of Amaresh Pramanick and Sudhir Kanti Sarkar are not
incorporated in the minutes book, (4) some portions in the last page in the
agreement (Ext. 20) with the managing agency firm Das Group appear to have been
erased out and the agreement was thus tampered with, (5) the minute book Ext.
18 does not incorporate 'the relevant questions, and there appeared tampering
with pagination, (6) the evidence of P.Ws. 6 & 16 regarding their presence
or absence, and (7) the testimony of P.Ws. 15 & 24 suggested that most of
the persons shown to have attended meetings were at the "back and call of
the accused Almohan Das". Whether this evidence may justify a conviction
cannot be enquired into at this stage. The evidence was prima facie sufficient
to frame a charge. The Presidency Magistrate was of the view that a case for
framing a charge for committing the case to the Court of Session was made out
and the High Court has summarily dismissed the revision application in exercise
of its jurisdiction.
It was contended before us that under s.
209(1) of the Code of Criminal Procedure, a charge may be framed only if in the
view of the committing Magistrate the evidence on record is sufficient to justify
conviction of the accused.
Section 209 of the Code provides:
"When the evidence referred to in
section 208, subsections (1) and (3), has been taken, and he has (if necessary)
examined the accused for the purpose of enabling him to explain any circumstances
appearing in the evidence against him, such Magistrate shall, if he finds that
there are not sufficient grounds for committing the accused person for trial,
record his reasons and discharge him, unless it appears to the Magistrate that
such person should be tried before himself or some other Magistrate, in which
case he shall proceed accordingly." 525 In terms s. 209 applies to cases
which are instituted otherwise than on a police report. But the principle
underlying that section applies to cases which are instituted on a police
report. A Magistrate holding an enquiry is not intended to act. merely as a
recording machine. He is entitled to sift and weigh the materials on record,
but only for seeing whether there is sufficient evidence for commitment, and
not whether there is sufficient evidence for conviction. If there is no prima
facie evidence or the evidence is totally unworthy of credit, it is his duty to
discharge the accused: if there is some evidence on which a conviction may
reasonably be based, he must commit the case. The Magistrate at that stage has
no power to evaluate the evidence for satisfying himself of the guilt of the
accused. The question before the Magistrate at that stage is whether there is
some credible evidence which would sustain a conviction.
We do not agree with counsel for the
appellants that there was no evidence on which a charge could be framed against
the appellants or that the evidence was so totally unworthy of credit' that an
order recording the conviction against the accused could not be made thereon.
The appeal fails and is dismissed. We trust
that the case which has been held up for a very long time will be taken up by
the Court of Session for trial with the least practicable delay.
R.K.P.S. Appeal dismissed.
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