1. The appellant has been convicted by the Chief Presidency Magistrate, Bombay, under Section 408 of the Indian Penal Code, of having, while a servant in the employment of Rai Bahadur Seth Tricumchand and his son, between April 30, 1927, and July 6, 1927, committed breach of trust in respect of an aggregate sum of Rs. 19,651-11-3, and is sentenced to six months' rigorous imprisonment and a fine of Rs. 1,000, in default six months' further rigorous imprisonment. The appellant has appealed from his conviction and sentence.
2. Mr. Kolaskar, on behalf of the appellant, has raised a preliminary point, that the trial before the learned Magistrate was vitiated by a certain procedure adopted by him. The procedure complained of is that while Mr. Kolaskar was finally addressing the learned Magistrate on behalf of the appellant, the Magistrate suggested to him that in lieu of his speech he might substitute a written address which the Magistrate would read and take into consideration. Mr. Kolaskar acceded to that request and the case was postponed to enable him to write out his address. At the nest hearing Mr. Kolaskar handed in his written address to the learned Magistrate who heard him further on some points arising out of that address and thereafter directed that Mr. Thanawalla, counsel for the prosecution, should write out his comments on the written address of Mr. Kolaskar and file it in the Court. Mr. Kolaskar complains that he was given no opportunity either of considering or replying to the written comments which Mr. Thanawalla subsequently filed in Court, and that the learned Magistrate delivered his judgment without calling upon the appellant's counsel to reply to the comments of Mr. Thanawalla. Mr. Kolaskar contends that according to the well established practice of our Courts, particularly in criminal matters, m trials where the accused has not called any evidence on behalf as in this trial, his counsel is entitled to the last word in addressing the Court on the case; that right, he says, was denied to him in this case, and hence the trial is vitiated.
3. The learned Magistrate's account of what happened on this occasion is set out in his judgment, as follows :-
After Mr. Thanawalla finished addressing me I heard Mr. Kolaskar and in order to save time asked him to put down in writing the contentions in the form of categorical propositions. This be acceded to and I postponed the case to enable him to do so. The result was that the learned Counsel put before me a lengthy address whioh after perusing I heard the learned Counsel (in some points which required clearing up. I asked Mr. Thanawalla also to put down his arguments in writing which he also has done. The two addresses of the learned Counsel will form part of the record, I have carefully considered the evidence and the arguments advanced and I have no doubt in ray mind that the charge is proved and the accused is guilty.
4. We do not see how these addresses could form part of the record. There is no provision of law to which our attention has been called by which such procedure could be justified. No doubt in trials by a Court of Session the notes of addresses of counsel taken down by the trial Judge are forwarded to this Court whenever the matter comes up in appeal. Such notes, however, are only the notes of the learned Judge and are not part of the record. In our opinion these two written addresses cannot stand higher than notes of counsel's arguments taken down by the learned Magistrate,
5. The procedure adopted by the learned Magistrate was of a somewhat novel nature. In matters where counsel on behalf of the accused is entitled to be heard, he is entitled generally to be heard by an oral address and not by a written speech. No doubt in the course of an oral address, it may sometimes be found convenient or necessary to summarise in writing some facts or arguments and hand in copies of such writing to the Magistrate and the opposing counsel. There may be complicated cases of accounts and other matters where such a procedure may be found to be desirable; but to require counsel to write out his address and hand it in lieu of his oral address is, in our opinion, a procedure which cannot, except on special grounds, be justified. The oral address of counsel is a valuable right which every party accused of a crime who engages counsel to defend him is entitled to regard as such. By means of such an address counsel can be of great assistance to his client. Many points might escape his attention if he only wrote out a written argument. The advantage of an oral address is that counsel is in direct touch with the Magistrate and can more effectively direct his remarks to such points in the case as from the demeanour of the Court might seem to him to require elucidation. In our opinion, however, the procedure followed by the learned Magistrate in requiring Mr. Kolaskar to write out his address in lieu of addressing him constitutes not an illegality or nullity but only an irregularity which might be waived. As Mr. Kolaskar acceded to the learned Magistrate's request and did not protest against it, he must be deemed to have waived the irregularity. The distinction between what is an illegality or nullity and what is an irregularity is well put, in a civil case in Ashutoeh Sikdar v. Behari Lal Kirtania I.L.R (1907) Cal. 61 where the Full Bench of the Calcutta High Court following the English cases has laid down the proper test in such matters. Mookerjee J. remarks (p. 72) :-
One test, however, is well-established, and is often useful; as was observed by Mr. Justice Coleridge in Holmes v. Russel (1841) 9 Dowl. 487 it is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity,' To the same effect are the observations of Mr. Justice Taunton in Garratt v. Hooper (1831) 1 Dowl. 28.
6. The right to address the Magistrate on the case was one which was for the benefit of the appellant. The appellant would be entitled to waive such a right and his counsel Mr. Kolaskar was competent to waive it as he did in favour of a written address which he put in.
7. Mr. Kolaskar's real grievance, however, is that counsel for the prosecution was allowed to put in a written reply to his written address and the prosecution had thus the final word with the Court. The Government Pleader has pointed out that under the scheme of the Criminal Procedure Code, both with regard to warrant and summons oases, no address by counsel is contemplated. This point, however, is settled by a ruling of this Court in Emperor v. Iboo (1904) 6 Bom. L.R. 665 where it is laid down that it is an elementary principle of law that no order should be made to a man's prejudice, especially in a criminal case, without hearing him, and the very object of the Legislature in allowing parties to be represented at trials by counsel is that counsel must be heard before final opinion is formed by the Court. It is not a question of indulgence but of right. It is not necessary that the Magistrate should be asked by the accused's counsel to be heard; it is clearly the Magistrate's duty to give counsel the usual opportunity to be heard on the case, In that case it appears that the Magistrate had not at all heard the counsel for the accused. In the present case, no doubt, the learned Magistrate did partly hear Mr. Kolaskar and also heard him after he had put in his written address; but the complaint made here is that Mr. Kolaekar was given no opportunity of being heard after Mr. Thanawalla had put in his written comments on Mr. Kolaskar's written address. In our opinion the right of counsel in such matters is not only that they shall be heard, but that they shall be given an opportunity of being effectively heard. Where counsel on behalf of his client has the right of being last heard in the matter t counsel, in our opinion, is entitled to an opportunity to be so beard.
8. From the record it appears that the learned Magistrate, at the last hearing of the cases before judgment, postponed it for judgment and stated that the date would be notified, and. if further arguments were required the date would be notified. Mr. Kolaskar states that he remained under the impression that when Mr. Thanawallfi would file his written comments he would be supplied with a copy and if on perusal of Mr. Thanawalla's written comments, the learned Magistrate felt inclined to give judgment against his client, he would before so doing give Mr. Kolaskar an opportunity to address him on those comments and would then further consider his judgment. When the learned Magistrate notified the date for the judgment, both Mr. Kolaskar and his client inferred that the judgment was to be in favour of the appellant as the matter had not been notified for further argument. Mr. Kolaskar was absent owing to illness on the date the judgment was delivered and in his absence the appellant was unable to lodge a protest against the irregularity which had occurred. We accept Mr. Kolaskar's version of what occurred in the Magistrate's Court. We do not think that the conduct of the appellant or of his counsel can be said to amount to a waiver of this irregularity. In our opinion, however, what occurred before the learned Magistrate on this point was not an illegality which would vitiate the trial but must be regarded as an irregularity to which the provisions of Section 537 of the Criminal Procedure Code would apply.
9. We have heard Mr. Kolaskar at great length with a view to ascertain if this irregularity in the procedure has occasioned a failure of justice within the meaning of Section 537 of the Criminal Procedure Code. Mr. Kolaskar was able to point out only one matter in respect of which he contends that the learned Magistrate was misled by the comments put in by Mr. Thanawalla. It is a part of the case of the prosecution that on April 30, 1927, there was in the hands of the appellant a, balance in cash of Rs. 16,800 and odd; that the appellant's cash book had been examined by the witnesses Harshadrai and Yadram and this balance was found there without any protest or explanation by the accused. In cross- examination by Mr. Kolaskar, Harshadrai stated that on this occasion he had actually handled the balance and counted the difi'erent notes and cash and that Yadram too had done the same. When Yadram gave his evidence he was not asked any question in examination-in-chief as to whether he had actually counted the currency notes and the cash. In cross-examination Mr. Kolaskar too refrained from putting such a question to him. In the comments made by Mr. Thanawalla on Mr. Kolaskar'a written address, it appears that he stated that Yadram had corroborated Harshadrai with regard to the cash balance being actually with the accused as on April 30, 1927. There is an expression in the judgment which according to Mr. Kolaskar makes it appear that the learned Magistrate was of the same opinion as Mr. Thanawalla, viz., that Yadram had corroborated Harshadrai on this point. From the learned Magistrate's judgment, it ap-peara that he was favourably impressed by Harshadrai whose evidence he has entirely accepted. Apart from that consideration, the fact that a certain balance is found as of a particular date in the cash book of the appellant would seem to raise a presumption that that entry would conform with the fact that such balance was in the hands of the appellant. No doubt the presumption could be rebutted by evidence or satisfactory explanation. The case of the accused has been that this amount of Rs. 16,800 and odd was merely a book entry and the cash in his hand on that date was only Ks. 1,200 and the balance of the amount was represented by certain cash slips which Harshadrai had subsequently removed and suppressed. On the point of the cash slips the learned Magistrate has disbelieved the appellant's statement and there is no satisfactory evidence which would justify such a finding in his favour. On this particular point, to which our attention has been called by Mr. Kolaskar, after going through the record, we are satisfied that no injustice has ensued to the appellant. On a careful consideration of the case we have independently of the learned Magistrate, come to the same conclusion as he did, namely, that the prosecution have conclusively proved their case against the appellant.
10. The next Point urged by Mr. Kolaakar is that the appellant is not criminally liable in respect of any criminal breach of trust, but that this a matter Only of civil liability and of accounts between Rai Bahadur Seth Tricurachand and his son on the one band and the appellant on the other. Mr. Kolaakar contends that the appellant was not merely a receiving agent, but his duties were those of both a receiving agent and an expending agent. He relies upon the ruling in Emperor v. Mohan Singh I.L.R (1920) All. 522 which lays down that criminal Courts should not be resorted to in matters which properly relate to civil liability only.
11. The appellant was employed as a pay-clerk in this office and his duties were to receive from his masters cheques in respect of certain amounts which had become due and payable on certain bills. He had to cash the cheques, keep the proceeds with him, and from time to time make payments thereout as and when those bills were presented to him. The evidence in this case shows that between the relevant dates cheques were handed over to the appellant which realized an aggregate sum of Rs. 1,78,132-14-0. He had also in his hands Rs. 16,800-7-3, the balance struck on April 30, 1927. The total of these two sums came to Rs. 1,94,933-5-3. It was further proved that during the relevant period the appellant had paid off bills aggregating Rs. 1,75,281-10-0 leaving a balance of Rs, 19,651-11-3 in respect of the unpaid bills which it was his duty to have paid up under the instructions given to him when the cheques were handed to him. The nature of the complainant's case against the appellant was made clear in the evidence in chief of Harshadrai. The appellant was given full and free inspection of all the documents, books and vouchers which were in any manner relevant to the inquiry. The charge against him was of a specific nature in respect of a specific sum. In my opinion it satisfies the provisions of Section 222, Sub-section (2), of the Criminal Procedure Code.
12. The case of Emperor v. Mohan Singh I.L.R (1920) All. 522 has been distinguished by this Court in Emperor v. Byramji Chaewalla (1927) 30 Bom. L.R. 325. In commenting on that case, Fawcett J. remarks (p. 329):-
In that case, according to the report at page 523, a prosecution was Started against the accused on charges which amounted rather to charges of a general deficit on the whole of his accounts than of the misappropriation of deflnite and specific items, and the judgment naturally animadverts upon the danger of convicting a person on some vague or general notion, when the real charge has not been established.
13. A perusal of the case in Emperor v. Mohan Singh will show that the accused in that case was commissioned to perform multifarious duties, He was given a general authority to sell goods, collect money, purchase goods, pay labour dues and general ex-penses and the prosecution was brought in respect of a general alleged deficit. The present case, in our opinion, does not fall within the ruling in Emperor v. Mohan Singh.
14. It is next contended by Mr. Kolaskar that the charge of criminal breach of trust cannot be sustained and that at the most the facts would disclose a case of criminal misappropriation of certain specific sums. If the argument on this point were a valid one, it would affect only the question of sentence; but the learned Magistrate has passed a very lenient sentence which could be sustained even if the conviction was for criminal misappropriation. There is not much practical force, therefore, in the objection that has been taken. In our opinion, however, the charge as framed is applicable to the case. The appellant was a clerk or servant and was entrusted as such by his master with a certain sum of money which it was his duty in that capacity to apply in a particular manner according to his master's instructions. His misappropriation of those moneys and failure to apply them as directed amount, in our opinion, to a criminal breach of trust in respect of those moneys. In our opinion Mr. Kolaskar's contention under this head must also fail.
15. On the merits, Mr. Kolaakar has contended that the prosecution has failed to establish the charge brought against the accused. He contends that the various cheques, comprising the sum of Rs. 1,78,132-14-0, have not been produced nor have they been proved. In our opinion there is not much force in this contention as the regular books of account evidencing the handing up of these cheques to the accused were produced and the appellant was given full and free inspection of all such books and documents. The appellant did not by his cross-examination or otherwise challenge the prosecution to produce these cheques. He himself relied upon some of these cheques appearing in the complainant's books as being in the nature of what he called 'accommodation' cheques. In our opinion Mr. Kolaskar's contention under this head cannot be upheld.
16. Mr. Kolaskar's next contention is that according to a confidential report made by Harshadrai to the Police-officers, Harshadrai admitted that the witness Mr. Mehta had admitted to him that 1928 when in 1921 he had handed over charge of his post of pay clerk to the accused there was a deficit of Rs. 4,500 in his, accounts. The prosecution called Mr. Mehta as a witness. Mr. Kolaskar, however, did not cross-examine him to elicit from him this fact. The statement made by Mr. Mehta to Harshadrai cannot in itself be regarded as evidence. The onus was on the accused to satisfactorily account for the deficit in respect of which he was charged. If he wished to rely upon this fact he should have brought it out in the evidence of Mr. Mehta. There is no satisfactory explanation with regard to this alleged deficit of Rs. 4,500 in 1921. If this deficit was taken over by the then manager of the office, one Cowashaw Paymaster, there is no satisfactory evidence or explanation which would enable us to conclude that this deficit was never made up to the appellant by Cowashaw Paymaster before his death in March 1827.
17. The next point relied upon by Mr. Kolaskar is, that out of the moneys in his hands the appellant had, at the instance of Cowatihaw, paid a sum of Rs. 2,000 to one Shahiyar and that this amount was never repaid to him. After he was taken in police custody the appellant gave to the police officer the names of certain persons who owed him moneys in this manner, and among those he gave the name of Harshadrai as owing him Rs. 2,000. Harshadrai was originally the assistant of Cowashaw Paymaster in the office and since his death has held a joint general power of attorney from his masters in favour of himself and the witness Yadram for managing the affairs of the office. When the Police-officer questioned him, Harshadrai, according to his version, wanted the Police-officer to deduct this sum of Rs. 2,000 from the total amount of the liability of the accused in respect of which he was being prosecuted. The case for the prosecution is that in addition to the present prosecution certain other prosecutions in respect of other defalcations aggregating Rs. 72,000 are now pending against the appellant. Harshadrai's explanation is that as he was not in a position to disprove the statement of the appellant to the Police that Cowashaw had failed to repay him this sum of Rs. 2,000 he had agreed that credit might be given for this sum to the appellant as against the aggregate amount due by him in respect of his various defalcations. As the Police-officer insisted upon receiving the amount in cash from Harshadrai, Harshadrai paid up the amount of Rs. 2,000 and informed his masters that he had done so. From this circumstance Mr. Kolaskar asks us to infer that there had been many irregularities in this office and the appellant was obliged to part with moneys entrusted to him for specific objects in order that Cowashaw or after his death his successor Harshadrai should utilize them in objects which were not authorised. Apart from the suspicious circumstance that Harshadrai paid up Ks, 2,000 to the Police- officer on behalf of the appellant there is no reliable evidence in the case which would make us differ from the finding of the learned Magistrate that the accused has failed to establish such a case. We understand that a civil suit is now pending in respect of this sum of Rs. 2,000 and other sums-in all Rs. 9,000, being the aggregate amount recovered by the Police-officer. Putting the matter at its highest the appellant would be entitled to have the charge amended by substituting therein a sum less by Rs. 2,000 for the sum in respect of which he is charged with criminal breach of trust. No grievance is made about the sentence. In our opinion the appeal should be dismissed and the conviction and sentence confirmed.
18. I agree.