Kantilal Chandulal Mehta Vs. State of
Maharashtra & ANR [1969] INSC 277 (10 October 1969)
10/10/1969 REDDY, P. JAGANMOHAN REDDY, P.
JAGANMOHAN SIKRI, S.M.
CITATION: 1970 AIR 359 1970 SCR (2) 742 1970
SCC (3) 166
ACT:
Criminal trial-Charge, amendment of-High
Court allowing plea for alternate charge and remanding case keeping appeal
pending-Code of Criminal Procedure 1898, ss. 423, 535.
HEADNOTE:
The second respondent Bank filed a complaint
against the appellant alleging against him misappropriation of moneys and goods
contrary to the Packing Credit Agreement entered into between the appellant's
firm and the Bank. The Magistrate framed only one charge against the appellant,
viz., 'for misappropriation of moneys, under s. 406, Penal Code. Against his
conviction the appellant appealed to the High Court and when the case had been
argued for a considerable length the learned Judge allowed an oral application
for amendment of the charge to include one of misappropriation of goods.
Allowing the application the learned Judge directed that the case be sent back
"for a new trial on the amended charge so as to enable the appellant to
have full opportunity to meet the case till which time the appeal is kept
pending." In appeal to this Court against this order.
HELD : Dismissing the appeal, The Code of
Criminal Procedure gives ample power to the courts to alter or amend a charge
whether by the trial court or by the appellate Court provided that the accused
has not to face a charge for a new offence or is not prejudiced either by
keeping him in the dark about that charge or in not giving a full opportunity
of meeting it and putting forward any defence open to him, on the charge
finally preferred against him. Especially, cl. (d) of sub-s. (1) of s. 423
empowers the appellate court even to make any amendment or any consequential or
incidental order that may be just or proper. Further, s. 535 provides that no
finding or sentence pronounced or passed shall be deemed to be invalid merely
on the ground that no charge has been framed unless the court of appeal or
revision thinks that the omission to do so has occasioned failure of justice
and if in the opinion of any of these courts a failure of justice has been
occasioned by an omission to frame a charge, it shall order a charge to be
'framed and direct that the 'trial be recommended from the point immediately
after the 'framing of the charge. [748 A-E] Thakar Sahab v. Emperor, [1943]
P.C. 192, referred to.
In the present case the learned Judge of the
High Court did not intend nor did he direct a new trial; only an opportunity
was given to the accused to safeguard himself against any prejudice by giving
him a opportunity to recall any witness and adduce any evidence on this behalf.
[749 C] The offence with which the appellant was charged alternatively was the
same, namely, under s. 406; but as the entire transaction was one and
indivisible he was not only required to answer the charge of misappropriation
of money but in the alternative misappropriation of goods which the complainant
Bank contended became theirs as soon as the accused purchased them with the
moneys it advanced.
Therefore no prejudice was 743 caused, nor
was likely to be caused to the accused by the amendment of the charge as
directed by the High Court. [749 E-F]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 260 of 1968.
Appeal by special leave from the judgment and
order dated October 18, 1968 of the Bombay High Court in Criminal Appeal No.
1161 of 1966.
A. S. R. Chari, S. S. Khanduja and Maya Rao,
for the appellant.
M. C. Bhandare and S. P. Nayar, for
respondent No. 1.
V. M. Tarkunde, Janendra Lal and B. R.
Agarwala, for respondent No. 2.
The Judgment of the Court was delivered by P.
Jaganmohan Reddy, J. This appeal is by special leave against the order of the
High Court of Bombay dated the 18th October 1968 allowing the oral application
of the learned advocate for the respondent for the amendment of the charge of
terms of the draft submitted by him and directing the Chief Presidency
Magistrate to assign the case to some court for holding a new trial in respect
of the amended charge.
This order was made in the following
circumstances The appellant was one of the partners of a firm Chandulal Kanji
& Co. along with his brother Chandulal K. Mehta. By and under an agreement
called the Packing Credit Agreement entered into between the firm and the
second respondent, the Union Bank of India, the appellant obtained 75 per cent
of the value of groundnut extraction to be purchased by the firm and exported
to the United kingdom and other European countries from the Bank on the
condition that immediately after the purchase of the goods and its export the
shipping documents would be sent to it. This arrangement required the firm
while sending a letter requesting the credit to be given to it, to enclose the
contract of sale of groundnut extraction entered into between it and the
foreign firm. On receipt of this letter and the agreement. the bank would
advance 75 per cent of the money required to purchase the groundnut extraction.
After the amount was received, goods had to be purchased from the mills and
shipped for export and the shipping documents sent to the Bank within a month
from the date of such advance. It appears that under this arrangement the
second respondent Bank had advanced under the Cash Credit Agreement and the
Packing Credit Agreement nearly rupees 4 lacs on several dates the first of
which was 744 March 27, 1965 which was for the purchase of 200 tons of
groundnut extraction and with which we are now concerned.
The Cash Credit Agreement, the Packing Credit
Agreement and the letter requesting the advance of Rs. 60,000/were all signed
on the same date. The advance, as requested, was also made on the 27th March
1965. Goods were purchased but could not be shipped within a month from the
date of the advance because, as stated in the letter of the appellant dated the
27th April, due to change in the schedule of departure of the ships it was not
possible to export the goods on the 24th or 25th March as originally planned as
such he undertook to ship the goods a week thereafter. On the same day, the
appellant further sent a declaration that the firm had purchased 300 tons from
the advance made to it and is holding the stock. On the 6th May the Bank
requested the firm to forward the shipping documents in respect of the seven
agreements of which one related to the agreement of 27th March. When the
shipping documents were not sent to it in conformity with the several documents
the bank made certain enquiries from its branch in Veraval, a port in Kathiawar
and received certain information as to the dates on which the various
quantities were exported and the ships in which they were sent. As the shipping
documents were not sent to the second respondent as required under the
agreements entered into with it, it again called on the firm on the 24th May to
hand over the documents to it in respect of the groundnut exported. When this
request was not complied with, it filed a complaint against the appellant who
alone was the active partner of the firm, in the court of the Presidency
Magistrate on the 26th May alleging against him misappropriation of moneys and
goods contrary to the agreement. In support of this complaint the manager of
the Bank gave evidence and at the stage of framing the charge the Magistrate
heard the lawyers for both sides. He framed only one charge against the accused
for misappropriation of the moneys under S. 406 I.P.C. advanced by the Bank in
respect of which the Magistrate ultimately convicted him on 31st August 1966
and sentenced him to 18 months' R.I. Against this conviction the appellant
appealed to the High Court and when the case came up for hearing and had been
argued for a considerable length, the advocate for the complainant, the second
respondent, appears to have made an oral application for amending the charge
framed by the Magistrate as per the draft handed over to the learned Judge
which was to be added as an alternative charge to the charge already framed. It
was contended that the Magistrate had framed a charge merely in respect of the
entrustment of the moneys that were advanced by the Bank to the appellant but
even so the evidence had been led on behalf of the complainant at the trial to
show that apart from the money with which the appellant was said to have been
745 entrusted with, even the goods that were purchased by the appellant with
the moneys so advanced had also been entrusted to him and which he had agreed
to hold on account of the Bank. This prayer was opposed by the learned advocate
for the appellant who contended that it was open to the complainant to have
urged the Magistrate at the time when the charge was being framed to have an
alternate charge similar to the one now required to be added. In fact it was
stated by the learned advocate that the charge was actually framed by the
Magistrate after substantial evidence of the complainant had been recorded by
him and after the complainant's advocate in the lower court had discussions on
the question of the framing of charge, but in spite of it only one charge was
framed against the appellant for breach of trust in respect of moneys said to
have been entrusted to the appellant by the Bank. The charge relating to goods
was omitted and not framed. It was also pointed out that the altering or
amending of charge at this stage would really amount to the framing of a
totally new charge in regard to altogether a new subject matter, namely,
alleged entrustment of goods, which if permitted would prejudice the accused in
his defence. The learned Judge, however, after hearing these arguments thought
that a charge which would include entrustment of moneys as well as entrustment
of goods ought to have been framed by the Magistrate but having regard to the
materials which have already been brought on record by the complainant at the
trial he thought that it was desirable in the interest of justice to allow the
amendment.
The following directions given by the learned
Judge are relevant for the determination of the contention urged before us :
"I direct that the charge as framed by
the learned Magistrate be altered and amended in terms of the draft amendment
submitted and send the case back for a new trial on this amended charge so as
to enable the appellant to have full opportunity to meet this case, till which
time this appeal is kept pending.
I direct that the papers be sent to the
learned Chief Presidency Magistrate forthwith and the learned Chief Presidency
Magistrate is further directed to assign the case to some Court for holding the
new trial. I further direct that the new trial should be expeditiously
completed and preferably within two months from the receipt of the papers by
the Court to which the case would be assigned by the learned Chief Presidency
Magistrate.
The other two appeals being Criminal Appeals
Nos. 1162 and 1163 of 1966 should also be adjourned as part-heard matters and
to be put up along with Criminal Appeal No. 1161 of 1966 after the record and
the proceedings of the new trial is received by this Court." Mr. Chari on
behalf of the appellant construing the above order as a direction for a new
trial without disposing of the appeal contends that it is unwarranted, unfair,
inequitable and unsupported 'by any of the provisions of the Code of Criminal
Procedure. The learned advocate further submits that it is grossly prejudicial
to the accused, for the prosecution to wait till the end of the trial and then
say that the charge should be amended. It could have easily insisted at the
stage of framing the charge itself that an additional charge should be framed
and if the prayer was not accepted it could have come in revision. The,
prosecution having let the trial proceed to the end without insisting on any
additional charge cannot now before an appellate court ask for its amendment
nor should the said amendment be permitted. Secondly, he submits that the
learned Judge did not consider the question whether there was or was not a
prima facie case of entrustment of goods. In fact it is the contention that the
cumulative effect of the agreement and the transaction between the appellant
and the second respondent Bank does not disclose entrustment of moneys to
sustain the charge for which the appellant was convicted and if there can be no
question of any entrustment of moneys there can be no entrustment of goods. The
learned Judge, it is stated, should have adverted his mind to this aspect of
the case before he permitted the framing of additional charge and directed the
Magistrate to hold a new trial. In fact the learned advocate urged that before
the Magistrate the second respondent's advocate had specifically stated that
the trial should proceed only on one charge relating to entrustment of moneys
as a test case and having taken up this position no prayer for the addition of
another charge can be made or ought to have been granted. But Shri Tarkunde
appearing on behalf of the second respondent denies that there was any such
submission and contends that in fact Tulzapurkar J. did not direct a new trial
as suggested by the advocate on behalf of the appellant though the use of the
words "new trial" has unhappily given rise to such a contention. What
in fact the learned Judge did was to send the case back to the Magistrate to
enable the appellant to have full opportunity to meet the case and return the
record to the court to enable it to dispose of the appeal on both the charges.
The learned advocate submits that there is no illegality in the order of the
learned Judge because what the appellate court could have done itself it is
directing the Magistrate to do, namely, to give an opportunity to the accused
to call the prosecution witnesses if he so desires, obtain his statement under
S. 342 in respect of the additional charge and to allow him to record any
evidence on 747 his behalf if he is so desirous. It appears to us that the
contention of Shri Tarkunde is amply justified by the following observations of
the learned Judge allowing the application for amendment made by Mr. Patel on
behalf of the second respondent:
"I have therefore asked Mr. Khambata as
to whether the appellant would like to have an opportunity of a new trial where
he could meet this case and Mr. Khambata has stated that the proper course for
the court, after allowing amendment of the charge in the manner sought by the
complainant, would be to order a new trial. Mr. Patel for the complainant,
however, has stated before me that even during such new trial that would be
ordered by the court, no fresh evidence would be led on behalf of the
complainant and the complainant would be relying upon the self same material
that has already been brought on record by the complainant at the trial, which
is already concluded.
Mr. Khambata also urged before me that if I
were inclined to allow the application of Mr. Patel, I should dispose of the
appeal which deals with the alleged entrustment of the monies and either accept
the findings or set aside the findings and thereafter order a new trial in
regard to the alleged entrustment of the goods. I feel that it would be
desirable and proper to keep this pending till the opportunity that is being
given to the appellant-accused No. 2 to meet this new case is fully availed of
by him and the record of such new trial is received by this court.
I accordingly allow the application of Mr. Patel
for amendment of the charge in terms of the draft submitted by him." From
the above observations it would be clear that the learned Judge did not intend
that the trial should be a new trial in the sense that the Magistrate would
record the evidence afresh, see whether there, was a prima facie case for
framing a charge and if there was, to frame a charge then permit the
complainant to lead evidence, record the statement of the accused under s. 342
and adduce evidence on his behalf after which he would pronounce judgment of
conviction or acquittal. If he had so intended and had directed a totally new
trial as is alleged, he could not have rejected the contention of Shri Khambata
for the appellant that he should dispose of the appeal and order a new trial on
the additional charge nor would he have directed that the appeal should be kept
pending till the record of the new trial is received back in his court which
could only be after giving 748 the accused appellant an opportunity to meet the
case on the additional charge.
On this interpretation of the order the
question is whether what has been directed by the learned Judge is in
conformity with the provisions of the Code of Criminal Procedure. In our view
the Criminal Procedure Code gives ample power to the courts to alter or amend a
charge whether by the trial court or by the appellate court provided that the
accused has not to face a charge for a new offence or is not prejudiced either
by keeping him in the dark about that charge or in not giving a full
opportunity of meeting it and putting forward any defence open to him, on the
charge finally preferred against him. The power of the appellate court is set
out in section 423 Cr. P. C. and invests, it with very wide powers. A
particular reference may be made to clause (d) of sub-section (1) as empowering
it even to make any amendment or any consequential or incidental order that may
be just or proper. Apart from this power of the appellate Court to alter or
amend a charge, section 535 Cr.
P. C. further provides that no finding or
sentence pronounced or passed shall be deemed to be invalid merely on the
ground that no charge has been framed unless the Court of appeal or revision
thinks that the omission to do so has occasioned failure of justice and if in
the opinion of any of these courts a failure of justice has been occasioned by
an omission to frame a charge, it shall order a charge to be framed and direct
that the trial be recommenced from the point immediately after the framing of
the charge. The wide and extensive power which an appellate or revisional court
can exercise in this regard has also the support of the Privy Council. Lord
Porter who delivered the opinion of the Judicial Committee in Thakar Sahab v.
Emperor(1) had occasion to point out that while the history of the growth of
Criminal Law in England its line of development and the technicalities
consequent thereon would have made it more difficult and may be impossible to
justify a variation of the charge, Indian Law was subject to no such limitation
but is governed solely by the Penal Code and Criminal Procedure Code. In that
case the Privy Council was called on to decide whether the alteration of the
charge and the conviction from one of abetment of forgery by known person or
persons to abetment of forgery by an unknown person or persons vitiated the
conviction. It was held that it did not, because an Appellate Court had wide
powers conferred upon it by section 423 and in particular by subsection (1)(a)
of that section, which is "always of course subject to the limitation that
no course should be taken by reason of which the accused may be prejudiced
either because he (1) [1943] P.C.192.
749 is not fully aware of the charge made or
is not given full opportunity of meeting it and putting forward any defence open
to him on the charge finally preferred." In this case Shri Chari contends
that : (1 ) what the High Court should have done if it found that interest of
justice required it either to have recorded the evidence itself or to have
asked the trial court to record it and send it back, but it cannot refuse to
give a finding on the charge for which he was convicted and (2) that the
prosecution having proceeded with the trial on the charge framed and not having
asked for an amendment at that stage cannot ask the appellate court to amend or
add to the charge. It appears to us that both these contentions are based on a
misreading of the order of the High Court. As already pointed out the learned
Judge of the High Court did not intend nor did he direct a new trial in the
sense that it is contended he had done. There was in fact no retrial directed,
but only an opportunity was given to the accused to safeguard himself against
any prejudice by giving him an opportunity to recall any witnesses and adduce
any evidence on his behalf. The appellant has also understood the order not as
a retrial is clear from ground (f) of the Special Leave Petition filed before
us. It is therefore not necessary for us to examine the scope and extent of the
power or circumstances in which a retrial should be ordered. The complainant's
Advocate Shri Tarkunde in fact said and even now submits before is that he does
not want to lead any evidence and would be satisfied on the same evidence to
sustain a conviction on the amended charge, nor does the alternative charge now
framed requires him to answer a charge against him of a new offence which would
cause prejudice. The offence 'With which he is now charged alternatively is the
same namely under Section 406 but as the entire transaction was one and
indivisible he is not only required to answer the charge of misappropriation of
money but in the alternative misappropriation of goods which the complainant
Bank contends became their's as soon as the accused purchased them with the
moneys it advanced. In our view no prejudice is caused or is likely to be
caused to the accused by the amendment of the charge as directed by the High
Court.
It was again contended that the High Court
ought to have considered whether there was a prima facie case against the accused
to justify the framing of the amended charge particularly when it took the view
that the first charge could not be sustained. We do not think the learned Judge
expressed any view as to the maintainability or otherwise of the conviction,
but thought there should have also been framed an alternate charge in respect
of the goods. It is true that the court did not give any reasons as 750 to why
it thinks there was a prima facie case, but being an appellate court perhaps it
was anxious to avoid giving an impression that it has taken any particular view
on the evidence. The accused raised no ground on this account in the Special
Leave Petition, nor do we think on this account we should interfere with the
judicial exercise of discretion of the learned Judge in framing the charge and
in giving the accused an opportunity to recall any witnesses or adduce fresh
evidence on his behalf. If no objection could be taken to the trial Court in
framing the original charge it is difficult to see how an objection can be
taken at this stage to the framing of an alternate charge on the same
allegation in the complaint.
The appeal is accordingly dismissed.
Y.P. Appeal dismissed.
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