Sushil Kumar Gupta Vs. Joy Shankar
Bhattacharyya [1970] INSC 32 (23 February 1970)
23/02/1970 DUA, I.D.
DUA, I.D.
RAY, A.N.
CITATION: 1971 AIR 1543 1970 SCR (3) 770 1970
SCC (1) 504
CITATOR INFO:
R 1985 SC 628 (47,74)
ACT:
Criminal Trial-Secrctary of co-operative
society charged under ss. 408 and 477 A.I.P.C.-Joint trial with
abettors-Acquittal of abettors-Effect on conviction of the principal accused.
Criminal breach of trust-User by accused of
money entrusted, contrary to rules-Ratification by Directors-No power to
ratify-Effect of Mis joinder of charges-No prejudice to accused.
Constitution of India, 1950, Art
134(1)(c)-Certificate by High Court-Judicial discretion to be exercised by High
Court.
HEADNOTE:
The appellant, who was the Secretary of a
Cooperative Society and was responsible for the cash and maintenance, of the
accounts of the Society, was charged with the offenses of criminal breach of
trust and falsification of accounts under ss. 408 and 477-A, I.P.C. He was
tried along with 5 others who were charged with the offence of abetment of the
offenses. The, trial court acquitted all of them, but the appellate court (the
Court of Judicial Commissioner) convicted the appellant and acquitted the.
others. The appellate Court held that the appellant had advanced money against
the rules of the Society and also to various persons not entitled to it, that
the appellant had thereby committed criminal breach of trust and either
misappropriated or misapplied the funds of the Society dishonestly to benefit
himself or his relations and friends. The 'appellate Court certified that the
case was a fit one for appeal to this Court under Art. 134(1) (c), but, the
order granting the certificate did not disclose on its face what exactly was
the difficulty of the appellate Court and what question of outstanding
difficulty this Court was to settle.
In appeal to this Court,
HELD : (1) The acquittal of the co-accused
was not based on the finding that there was no falsification of accounts or
embezzlement. Therefore, the appellant could not contend that no offence was
committed because of the acquittal of the co-accused. [773 G-D] (2) On the
finding of the appellate court, it was not a mere civil liability of the
appellant. The appellant's manner of dealing with the money entrusted to his
custody constituted criminal breach of trust. The Directors had no authority
under the bye-laws to give any directions contrary to the bye-laws and so,
could not ratify the violation of the bye-laws. Any resolution ratifying the
use of trust money contrary to the directions contained in the bye-laws would
not validate the breachof the bye-laws. [775G; 776 A-C] (3) There was no
misjoinder of charges and no prejudice was caused to the appellant. [776 F] (4)
The appellate Court should not have granted the certificate, under Art.
134(1)(c) in the present case. The word 'certify' in the Article 771 postulates
the exercise. of judicial discretion by the appellate Court and the certificate
should ordinarily show on the face of it that the discretion was invoked and
properly exercised. This Court should be in a position to know that the
appellate Court has not acted mechanically but has applied its mind. A
certificate under this clause is impermissible on questions of fact. When the
case does not disclose a substantial question of law or principle -the
certificate. granted by the appellate Court is liable to be revoked by this
Court, though such_ prima facie nondisclosure would not by itself automatically
invalidate the certificate [777 A-C]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 131 of 1967.
Appeal from the judgment and order dated
January 9, 1967 of the Judicial Commissioner's Court Tripura, Agartala in
Criminal Appeal Case No. 8 of 1963.
M. K. Ramamurthi, J. Ramamurthi and Vineet
Kumar, for the appellant.
H. R. Khanna and R. N. Sachthey, for the
respondent.
The Judgment of the Court was delivered by
Dua, J. Pursuant to a complaint by Shri Joy Shanker Bhattacharyya, the
appellant Sushil Kumar Gupta was tried in the court of Assistant Sessions
Judge, Tripura on the following charges "(1) That you in between the month
of September, 1958 and July, 1959 at Agarwala P.
S. Kotwali being a servant viz. Secretary in
the employment of the Tripura Central Marketing Co-operative Society Ltd., and
in such capacity entrusted with certain property to wit a total sum of Rs.
18,200 being the fund of the Society committed criminal breach of trust in
respect of the said property and thereby committed an offence punishable under
s. 408 of the Indian Penal Code and within the cognizance of this Court.
Secondly : that you in between the period of
September, 1958 and July, 1959 at the same place being a Secretary in the
employment of the Tripura Central Marketing Co-operative Society Ltd., wilfully
and with intent to defaud, falsified certain books and other relevant papers to
wit cash book etc., which belonged to the said society, your employer and
thereby committed an offence punishable under S. 477-A of the Indian Penal Code
and within the cognizance of this Court." As the appellant was tried
jointly along with five others who have been acquitted and as if was argued on
behalf of the appellant that in view of the acquittal of his co-accused the
appellant 772 also should have been acquitted, the charges against them may
-also be reproduced : "That Sushil Kumar Gupta, Secretary of the Tripura
Central Marketing Co-operative Society Ltd., in between the period of
September, 1958 and July, 1959 at Agartala p.s. Kotwali committed the offence
of criminal breach of trust in respect of Rs. 18, 200 and that you the
aforesaid persons at the same place and time abetted the said Shri. Sushil
Kumar Gupta in the commission of the same offence of criminal breach of trust
in respect of the said amount which was committed in consequence of your
abetment and that you have thereby committed an offence punishable under s.
109, I.P.C. read with s. 408, I.P.C. and within my cognizance.
Secondly : that Shri Sushil Kumar Gupta,
Secretary of the Tripura Central Marketing Cooperative Society Ltd. in between
the period of September, 1958 and July, 1959 at Agartala p.s. Kotwali committed
the offence of falsification of accounts and that you the aforesaid persons at
the same place and time abetted the said Shri Sushil Kumar Gupta in the commission
of the same offence of falsification of account which was committed in
consequence of your abetment and that you have thereby committed an offence
punishable u/s 109, I.P.C. read with s. 477-A of the I.P.C. and within my
cognizance." The trial court acquitted all the six accused persons. An
appeal against the acquittal of all of them was preferred under s. 417 (3), Cr.
P.C. in the court of the Judicial Commissioner, Tripura. That court allowed the
appeal against S. K. Gupta only and dismissed it as against the others. S. K.
Gupta was held guilty of the offence of criminal breach of trust under s. 408,
I.P.C. and also of the offence of falsification of accounts under s. 477-A,
I.P.C. regarding the sum of Rs. 18,200. He was sentenced under each count to
undergo rigorous imprisonment for one year, the sentences to be concurrent.
The convict S. K. Gupta has appealed to this
Court on certificate granted under Art. 134(1)(c) of the Constitution. 'Me
order granting the certificate does not disclose on its face what exactly the
difficulty of the court of the Judicial Commissioner is and precisely what
question of outstanding difficulty this Court is desired to settle. On behalf
of the appellant his learned advocate Shri Ramamurthy, however, addressed
elaborate arguments questioning the order of the learned Judicial Commissioner
allowing 773 the appeal against the appellant S. K. Gupta's acquittal.
His, challenge was based on three main
contentions. The fourth point that the learned Judicial Commissioner erred in
law inconsidering Ex. P-59 to be admissible in evidence, in disagreement with
the trial court, according to which it was hit by s. 24, Indian Evidence Act,
was not allowed to be argued in this Court because this ground was not taken in
the grounds of appeal.
The first contention seriously pressed on
behalf of the appellant is that in view of the acquittal of his co-accused who
were tried along with him the court of the Judicial Commissioner was wrong in
law in holding that there was falsification of accounts and embezzlement of the
funds of the Tripura Central Marketing Co-operative Society. This submission is
unacceptable. The acquittal of the other coaccused as affirmed by the learned
Judicial Commissioner is not based on the finding that there was no
falsification of accounts and no embezzlement of the funds of the Society.
S. K. Gupta, appellant, it may be pointed out
was the Secretary of the Society since April 13, 1957 when the first general
meeting of the Society was held and was in that capacity entrusted with its
funds. He worked as such till August 10, 1960. He was accordingly responsible
for the cash and maintenance of current accounts of the Society during the
period in question. Turning to the Bye-laws of the Society, bye-law no. 41
prescribes the duties of the Secretary. According to this bye-law the Secretary
has inter alia :
"(3) To make disbursement and to obtain
vouchers and to receive payments and pass receipts, under the general or
special orders of the Board of Directors on this behalf from time to time.
(4) To keep all accounts and registers
required by the rules.
(13) To countersign cash book in token of the
balance being correct and to produce the cash balance. whenever called upon to
do so by the Chairman or any person authorised to do so.
In the absence of the Secretary the Board of
Directors may authorise the Manager to perform the duties of the Secretary.
The Board of Directors may also authorise the
Manager to perform any of the duties of the Secretary to facilitate, the working
of the Society.
Receipts passed on behalf of the Society
shall be, signed by the Secretary. Share certificates and other774 documents
shall be signed by the Secretary and one member of Board of Directors
jointly." Byelaw 42 contains directions I regarding advances against proof
goods and clause (1) of this byelaw provides :
"(1) The Board of Directors shall, at
the beginning of the session, fix the amount of advance, indicating the
percentage of the market price of produce or goods pledged with the society,
that may be granted to a member.
Such limits may be fixed for different commodities
and varied from time to time according to fluctuation in markets or otherwise.
It shall also be competent for the Board of
Directors to call on a borrower at any time before the due date to repay a
portion of the loan or advance issued or to produce additional security for the
outstanding loan or advance within a time fixed by them, if in their opinion,
there is fall or likely to be a fall in the market value of the produce or
goods pledged." Under byelaw 44 loans may be granted to members in
suitable cases on such terms and conditions as regards individual and maximum
limits, repayment of loan,, rate of interest thereon etc., as may be fixed by
the Board of Directors from time to time. According to the learned judicial
Commissioner "the overall picture" emerging .from the evidence on the
record, to quote his own words, it "(1) A sum of Rs. 18,200/was said to
have been disbursed in 1958 and 1959.
(2) It was said to have been repaid in the
last week of June, 1959 towards the end of the co-operative year of 1959 and
long after the maximum period of 6 months allowed by rule 42 (4) of the
byelaws.
(3) The same amount was again said to have
been disbursed in a few days in the first week of July commencing with the next
cooperative year (1959-60).
(4) Except the 2nd and 4th respondents, the
others were not members of the Cooperative Society and in this regard the 1st
respondent disregarded sub-rule (1) ,of r. 42 of the byelaws.
(5) The 1st respondent did not obtain any
general or special orders of the Board of Directors to make the disbursements
and violated sub-rule (1) of r. 42 of Ext. P-41.
775 (6) Ext. P-56 and P-59 show that the
alleged collections of the monies in June 1959 was false and that the accounts
were got up.
(7) The fact that a discount of Rs. 10/was
paid to cash a cheque on 29-6-1959 shows that the society had no funds on that
day.
(8) None of the alleged loanees was a Jute
grower and no jute was deposited in the godowns of the society before the
advances were made and in this regard the mandatory provisions of sub-r. (2) of
r. 42 were also disregarded by the 1st respondent.
(9) A number of adjustments were made in the
Accounts to show that the sum of Rs. 18,200/was disbursed.
(10) The three persons to whom ultimately the
amounts were said to have been disbursed are interested in the 1st respondent.
The 4th respondent C. C. Das Gupta is a relation of the 1st respondent and
proved by P. Ws 1, 6 and 8 and as admitted by the 4th respondent himself in
Ext. P-56. The 3rd respondent Sudhir Ranjan Roy is a servant of D.W. I who is a
co-Director of the Match Factory and friend of the 1st respondent. The 3rd
respondent Haradhan Deb was appointed by the 1st respondent in the C.M.S. The
3rd respondent was also an employee of the C.T.S.
of which the 1st respondent was a
Director." On the basis of these observations the appellant was held to
,have committed criminal breach of trust and to have either misappropriated or
misapplied the funds of the Society dishonestly to benefit himself of his
relations and friends. Counsel failed to point out any legal infirmity in the
final conclusion drawn in the impugned order from the overall picture. Indeed,
counsel, after a faint attempt to find fault with this conclusion felt
constrained to admit that the money had been advanced against the rules of the
Society and also to the persons not entitled to it, his only contention in
support of the appeal being that it did not constitute a criminal offence and
that in any event the Board of Directors of the Society having ratified the
advances, the foundation for the criminal charge must be deemed to have
disappeared. We are unable to agree.
The offence of criminal breach of trust is
committed when a person who is entrusted in any manner with property or With
dominion over it, dishonestly misappropriates it, or converts it to his own
use, or-dishonestly uses it or disposes it of in violation 776 of any direction
of law prescribing the mode in which the trust is to be discharged, or of any
lawful contract, express or implied, made by him touching such discharge, or
wilfully suffers any other person so to do. The appellant's manner of dealing
with the money entrusted to his custody clearly constitutes criminal breach of
trust. Counsel was not able to point out any provision which empowers the
Directors to prescribe the mode of making advances, which violates or is in
breach of, or contrary to the Byelaws. If the Directors,-possess no authority to
give any directions contrary to the byelaws they can scarcely claim or assume
power to ratify violation of the Byelaws in the matter of dealing with the
trust money. Our attention was not drawn to any over-riding provision
conferring power on the Board of Directors to ratify use of the trust money
contrary to the directions contained in the Byelaws. Exhibit P-27, the
resolution of the Board of Directors dated January 10, 1960, on which reliance
in support of' the argument was placed, merely states "investments made by
the Secretary upto date are hereby approved" without pointing out the
provisions under which such approval could validate breaches of the Byelaws.
Incidentally it may be mentioned that the learned Judicial Commissioner also
entertained some suspicion about the manner in which the meeting, in which this
resolution was passed, was held. This contention of the council must,
therefore, be repelled.
In the last submission the counsel made a
grievance against the joint trial of several accused persons on several items
of embezzlement. According to him there was a mis joinder of charges which
vitiated the trial. In our opinion, charges under s. 408 and s. 477-A, Indian
Penal Code, could, in the circumstances of this case, be tried together and the
joint trial of all the accused was proper and lawful. Our attention was not
drawn to any provision of law against the legality of the joint trial. In any
event no failure of justice in consequence of the joinder of charges was
pointed out, with the result that the question of mis joinder of charges must
be held to be of little consequence at the stage of appeal.
Before closing we may point out, as has
repeatedly been said by this Court, that there is normally no right of appeal
to this Court in criminal matters except in cases provided :by Art. 134 ( 1 )
(a) and (b) of the Constitution.
Clause (c) of this Article empowers the High
Court to certify cases to be fit for appeal to this Court. The word
"certify" is a strong word; it postulates exercise of judicial discretion
by the High Court and the certificate should ordinarily show on-the face of it
that the discretion was invoked and properly exercised. This Court should be in
a position to know that the High Court has not acted mechanically 777 but has
applied its mind. A certificate under this clause is impermissible on questions
of fact and when a case does not disclose a substantial question of law or
principle then the certificate granted by the High Court is liable to be
revoked by this Court, though such prima facie nondisclosure would not by
itself automatically invalidate the certificate. In the case in hand no
substantial question of law or principle was made out at the bar and the
certificate was clearly misconceived though it vaguely states that several questions
of law are involved. The appeal fails and is dismissed.
V.P.S. Appeal dismissed.
Back
