Vasudeo Kulkarni Vs. Suryakant Bhatt
& ANR [1977] INSC 72 (2 March 1977)
GOSWAMI, P.K.
GOSWAMI, P.K.
SHINGAL, P.N.
CITATION: 1977 AIR 1331 1977 SCR (3) 109 1977
SCC (2) 304
ACT:
Practice and Procedure--Trial Court acquitted
the accused--High Court-When could reverse trial court's findings.
HEADNOTE:
The appellant was a lawyer, under whom the
complainant (first respondent) was a junior. The appellant was engaged as
counsel in certain cases by the complainant's father. The appellant submitted
statement of accounts to the complainant's father in respect of the sums spent
by him in the suits. After a lapse of three years the complainant filed a
complaint against the appellant making allegations under ss.
409, 468 and 474 I.P.C. The trial Court
acquitted him holding that the prosecution had been launched after inordinate
delay and that there was no clear and conclusive evidence of criminal intention
and dishonest mental act on the appellant's part. The High Court, on appeal,
set aside the acquittal holding that the appellant's explanation in regard to
the discrepancies was not true and could not be accepted.
Allowing the appeal to this Court,
HELD: There was no sufficient ground for the
High Court to interfere with the acquittal in this case when the reasons given
by the trial Court were weighty and cogent and there was no compelling
justification to take a contrary view. [112 F] The mere fact that certain
amounts were in the hands of the appellant and the accounts submitted were
incorrect would not lead to the conclusion that the appellant committed
criminal breach of trust. [111 F] In the instant case, the complainant was a
junior of the appellant and he could himself easily find out the discrepancy in
the accounts and could have drawn the appellant's attention to it. The
complainant's father did not authorise him to file the complaint nor was he
examined to corroborate the complainant. Secondly, in a notice issued to the
appellant by the complainant's father the latter did not attribute any
dishonest intention or criminal intent on former's part. The High Court was
wrong in holding the charge as proved and in reversing the order of the trial
Court.
[111 G; 112 C]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 24 of 1972.
(Appeal by Special Leave from the Judgment
and Order dated 22-10-1971 of the Madhya Pradesh High Court (Indore Bench) in
Crl. A. No. 292/70).
R.L. Kohli, R.C. Kohli and A.G. Ratnaparkhi,
for the appellant.
M.K. Khan and S.K. Dhingra, for respondent
No. 1.
Ram Panjwani and H.S. Parihar, for respondent
No. 2.
The Judgment of the Court was delivered by
GOSWAMI, J. This appeal by special leave is directed against the judgment of
the High Court of Madhya Pradesh convicting the appellant under section 409,
Indian Penal Code, and sentencing him to one 110 year's rigorous imprisonment
and to a fine of Rs. 250/-, in default further rigorous imprisonment for three
months, in appeal against acquittal at the instance of the complainant (first
respondent herein).
The appellant is a senior lawyer of 25 years'
standing in Indore and the complainant was acting as his junior. The
complainant's father, Dinubhai, was the senior partner of a firm of Chartered
Accountant, M/s. Dinubhai & Co., with its registered office in Bombay and a
branch office in Indore.
The Indore office was looked after by the
second partner, M.C. Mehta. It appears that the firm was dissolved on July 5,
1960, when Mehta ceased to be a partner and Dinubhai appointed the appellant as
counsel and attorney for filing suits and for recovering dues from various
parties. Dinubhai filed a suit, being suit No. 13 of 1962, for recovery of Rs.
12,500/in the court of the Third Additional District Judge, Indore, impleading
M.C. Mehta and one Chandulal Shah as defendants in that suit. Although the suit
was decreed, it appears there were two cross appeals against the decree in the
High Court, one by Dinubhai and the other by Chandulal Shah. The appellant was
appearing for Dinubhai in both the appeals. He received some amounts in advance
from Dinubhai and submitted a statement of account of Shri Dinubhai (Ex. P-1)
dated February 9, 1965, wherein two items, namely, Rs. 210/and Rs. 110/were
mentioned as being towards "paper book charges" respectively on
21-4-1964 and 22-9-1964. The entry on 22-9-1964 shows that the amount of Rs.
110/is one of several items mentioned therein as expenses incurred in the
appeal flied by Chandulal Shah against Dinubhai. So far as the items mentioned
in Ex. P-1 on 21-4-1964 including the last item of Rs. 210/-, there is no
mention whether the expenditure was actually incurred on that date.
The complainant was not pulling on well with
his father for some reason or other and also parted company with his senior,
the appellant. He filed a complaint against the appellant on December 8, 1967,
making allegations under sections 409, 468 and 474 IPC. Ultimately the
appellant was charged under section 409 IPC with regard to the amounts of Rs.
210/and Rs. 110/which were mentioned in the statement of account (Ex. P-1)
received by the complainant on February 10, 1965. The complainant examined
himself and a clerk of the High Court to prove that no paper book charges were
deposited on the dates mentioned in the accounts. On the other hand a sum of
Rs. 26.50 was deposited as paper book charges on March 18, 1965, in the
particular appeal.
The appellant denied the charge and stated
that there was a typing error in the accounts and the actual figures should
have been Rs. 211/(and not Rs. 210/-) and Rs. 10/(and not Rs. 110/-). When the
appellant's attention had been drawn to these amounts he admitted these to be
typing errors and asked for adjustment of the amount of Rs. 300/towards his
fees in the case of Kothari Book Depot.
It is rather curious that a criminal
complaint should have been lodged against the appellant nearly three years
after the receipt of the accounts by the complainant.
111 The trial court acquitted the accused
(appellant herein) by observing as follows :-"To sum up, the prosecution
has been launched after inordinate unexplained delay, there is no clear and
conclusive evidence of the criminal intention and dishonest mental act of the
accused, the real aggrieved person has not come with the complainant but has
already sought the alternative remedy in Civil Court which is being already
pursued. The question whether or not the adjustment made by the accused towards
his fees was proper can more appropriately be decided by Civil Court.
Accused having reasonable claim against the
complainant for any equivalent sum of money, his user of the disputed sum for
his own purpose will not amount to criminal breach of trust".
The High Court, on the other hand, held that
the charge was established against the accused and set aside the acquittal. The
High Court held that the explanation of the accused did not appear to be true
and, therefore, could not be accepted. It further held that it was clear that
on the dates mentioned in the accounts no amounts were deposited as paper book
charges in the High Court. The High Court concluded as follows :-"Consequently
it cannot be doubted that the respondent, who as an agent of the complainant's
father was entrusted with the amounts, showed false expenses and thereby kept
the amounts with himself. In the face of these facts and also on the finding
that the explanation given by the respondent cannot be accepted, the respondent
cannot escape conviction under section 409 I.P.C. as that was the only charge
framed against him by the trying Magistrate".
The statement of account (Ex. P.I ) as well
as the correspondence between the appellant and the complainant's father, who
was client, dearly show that there was mutual accounting and adjustment between
them. The mere fact that certain amounts were in the hands of the appellant and
the accounts submitted were incorrect would not lead to the inevitable
conclusion that the appellant committed criminal breach of trust in respect of
these items.
The complainant, who was a junior attached to
him and was looking after his cases could himself easily find out the
discrepancies in the accounts and in a normal course he would have drawn the
attention of his senior on receipt of the statement of account in February
1965. The accused in his statement under section 342, Criminal Procedure Code,
stated, inter alia, as follows :-"Typing error has occurred in the
statement of account of Ex. P-1. The difference of Rs. 300.00 which has
occurred, has been adjusted against my fees in Kothari Book Depot's case at the
instance of Suryakant. I have given a receipt for it which is in possession of
Suryakant. Surya kant used to maintain account of Court expenses of Dinubhai's
cases in a register. That register is with Suryakant.
112 Suryakant used to remain present in the
court on each date along with me. He knows everything. Nothing is concealed
from him. There is Gadbad of money between Suryakant and his father. Hence on
the instigation of other people this false case has been launched.
Suryakant had got typed the statement of
account Ex. P-I from the register".
On one side we have the solitary statement of
the complainant. Even his father is not there to corroborate him or even to
show that he authorised him to file the complaint. As against his statement, we
have the explanation of the appellant. The trial court who had an opportunity
to see the complainant giving evidence did not choose to rely on his version of
the case and preferred to accept the explanation of the appellant. In this
state of the evidence we fail to see how the High Court, in an appeal against
acquittal, thought it possible to hold the charge as proved.
While the complaint was filed on December 8,
1967, a few months earlier on May 16, 1967, a lawyer's notice was addressed to
the appellant on behalf of Dinubhai. We may extract the following passage from
that letter:
"My client has instructed me to call
upon you to remit to him the balance of Rs. 1700/lying with you (after
deducting your fees of Rs. 3300/from the amount of Rs. 5,000/paid to you)
within 24 hours of the receipt of this reply otherwise my client will not only
place the matter before the Bar Council of M.P. but, if so advised, will also
file a suit for its recovery against you at your cost and consequences which
please note".
This would clearly show that neither Dinubhai
nor his lawyer ever thought of attributing any dishonest intention or criminal
intent to the appellant. In view of this letter it is not possible to accept
the sole testimony of the complainant imputing dishonest intention on the part
of the appellant. We are clearly of opinion that there was no sufficient ground
for the High Court to interfere with the acquittal in this case when the
reasons given by the trial court were weighty and cogent and there was no compelling
justification to take a contrary view.
At the conclusion of the argument by Mr. Khan
on behalf of the complainant pressing for conviction of the appellant, Mr.
Panjwani, appearing on behalf of the State, fairly enough, did not think it
proper to support the judgment of the High Court.
In the result the appeal is allowed. The
judgment of the High Court is set aside. The appellant shall be discharged from
his bail bond.
P.B.R. Appeal allowed.
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