Full Judgment Text
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PETITIONER:
ALMOHAN DAS AND ORS.
Vs.
RESPONDENT:
STATE OF WEST BENGAL
DATE OF JUDGMENT:
25/10/1968
BENCH:
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
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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]
JUDGMENT:
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 through
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
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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 evi
dence 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
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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
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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.
526