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State Vs. Chiranjilal Agarwalla and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberGovt. Appeal Nos. 7 and 8 of 1955
Judge
Reported inAIR1958Ori44; 1958CriLJ398
ActsCode of Criminal Procedure (CrPC) , 1898 - Secton 423; Essential Supplies (Temporary Powers) Act, 1946 - Sections 7
AppellantState
RespondentChiranjilal Agarwalla and anr.
Appellant AdvocateR. Mohanty, Adv. for ;Govt. Adv.
Respondent AdvocateS.C. Roy, Adv.
DispositionAppeal dismissed
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........was proposed that the lower court records in both the appeals might be returned. to the additional district magistrate, mayurbhanj with a request to resubmit them with all the original exhibits therein and a letter to that effect was actually issued on 8-10-56. but the additional district magistrate, mayurbhanj seems to have slept over the matter though ha was directed to resubmit the records with the originals at once. consequently, another re-minder was sent to him on 31-10-56 reminding him of the necessity for compliance of this court's letter dated 8-10-56.this letter also did not evoke any response and consequently he was again reminded by an express letter dated 13-11-56 and on 19-11-56 the additional district magistrate submitted the records which were received by this court on.....
Judgment:

P.V.B. Eao, J.

1. Government Appeals Nos. 7 and 8 of 1955 were filed by the State against the acquittal of the respondents Chiranjilal Agarwalla and Lachhminarayan Sharama respectively who were tried separately in two cases on charges for an offence punishable under Section 7 of Act 24 of 1946 and were acquitted by the Sub-Divisional Magistrate, Bamanghaty, Rairangpur. Both the appeals were heard together as there are common questions of' law and as some common questions of fact are involved in both the appeals.

2. The prosecution case in Government Appeal No. 7 of 1955 is that, on 6-5-53, the Enforcement Supervisor, Rairangpur inspected the accounts of yarn of Ramawater Agarwalla, the yarn retailer, Rairangpur and found heavy shortages in respect of 10s, 14s and 20s, yarn and detected that Ramawater Agarwalla had shown fictitious sales in names of many persons including the respondent by issuing ante-dated cash memos. The Supervisor then inspected the shop of the respondent on 26-5-53 and found several irregularities.

The irregularities found against the respondent are four in number. The first is that he made a fictitious purchase of 4 bales of 10 s yarn from Ramawater Agarwalla on 3-5-53 and showed disposal of the same within a period of four days and made incorrect entries in his accounts in contravention of condition No. 1 (b) of the license.

The second is that, on 3-5-53, the respondent dropped 40 bundles of yarn out of his account and on 6-5-53 he showed an excess of sale of one bundle over the real sale and that on 13th, 14th and 16th May, 1953 he showed no sale in the sale Register whereas his stock Register showed sales of 40, 14 and 10 bundles of yarn respectively and thus maintained incorrect accounts in contravention of condition No. 1 (b) of the license.

The third is that he showed, in his account books, bogus sales of yarn to weavers, in contravention of condition No. 1 (b) of the license, and the fourth is that the cash memos issued by the respondent do not contain the names and addresses of the purchasers and also not in accordance with the legal instructions which are in contravention of condition No. 4 of the license.

3. The prosecution case against the respondent in Government Appeal No. 8 of 1955 is that the Enforcement Supervisor inspected the shop of Ramawater Agarwalla of Rairangpur on 6-5-53 (on the same day as in the above case) and found heavy shortage of yarn. On investigation he got information that Ramawtar Agarwalla had shown disposal of the yarn in favour of some persons including the respondent in a fictitious manner by showing ante-dated cash memos in order to account for his shortage.

The Enforcement Supervisor inspected the shop of the respondent on 20-7-53 and found several irregularities. In this case also there are four irregularities found by the Enforcement Supervisor. The first is that the respondent made a fictitious purchase of one bale of 12 s yarn from Ramawatar Agarwalla on 4-5-53 & showed disposal of the entire quantity on 11-5-53 to seven persons only & made incorrect entries to that effect on the Stock Register in contravention of condition No. 1 (b) of the license.

The second is that in the seven cash memos relating to the above transactions, signatures and addresses of four purchasers were found legible and those of others were found to be of fictitious persons and that the disposal of the yarn shown against them was found bogus. The third is that the respondent maintained accounts of 20 s and 36 s dyed yarn together in contravention of the condition No. 1 (b) of the license and the fourth is that the respondent did not take legible signatures from the purchasers on the duplicate copies of cash memos relating to the above transactions in contravention of condition No. 4 of the license read with Government Notification No. 29272 dated 20-8-52.

4. The respondents in both the appeals denied the charges made against them and pleaded not guilty, and, after trial of the cases, the Sub-Divisional Magistrate acquitted both of them. The Government has filed these two appeals against their acquittals.

5. These two appeals came up for hearing before us on 2-7-57 and in the course of hearing it was found that the original licenses in both the cases granted to both the respondents containing the conditions of license and which are the bases of the prosecution cases were not on the records. The appeals were consequently adjourned so that the licenses might be called for.

6. I regret to note that even after four adjournments we were not able to get the ori-ginal licenses which were marked as Exts. 11 and 16 respectively in both the appeals. I feel, it is necessary for me to state all the circumstances present after the filing of these appeals and comment on them in the interests of the administration of criminal justice in the State.

7. Both the appeals were filed on 29-3-55 and were admitted on 1-4-55. The records of the Magistrate's Court, according to the office note of this Court, were received, examined and acknowledged on 27-4-55. But there is another note in the margin of the order sheet made by the office on 6-10-56 that, in verification of the lower Court records in both the cases, it appeared that Ext. 11 in Government Appeal No. 7 of 1955 and Ext. 1 in Government Appeal No. 8 of 1955 were not forthcoming with the said records and that besides, some of the original exhibits had not been sent, but only unautnenticated copies of them were kept with the records.

It was proposed that the lower Court records in both the appeals might be returned. to the Additional District Magistrate, Mayurbhanj with a request to resubmit them with all the original exhibits therein and a letter to that effect was actually issued on 8-10-56. But the additional District Magistrate, Mayurbhanj seems to have slept over the matter though ha was directed to resubmit the records with the originals at once. Consequently, another re-minder was sent to him on 31-10-56 reminding him of the necessity for compliance of this Court's letter dated 8-10-56.

This letter also did not evoke any response and consequently he was again reminded by an express letter dated 13-11-56 and on 19-11-56 the Additional District Magistrate submitted the records which were received by this Court on 31-11-56 with a letter explaining the circumstances under which Ext. 11 could not be supplied. The letter also says that the Civil Supplies Officer, Baripada, was requested to supply an authenticated copy of the document, its available in his office, but he too reported that it was not available in his office.

8. I am constrained to note that the Additional District Magistrate was not alive to the responsibility to comply with the requisitions of this Court forthwith however much he might have been busy with his executive work. The District Magistracy should note that it is their imperative duty to comply with the orders of this Court in criminal appeals pending before the Court for disposal. The delay in disposal of these criminal appeals, it may be noted, is mostly due to the non-compliance of the orders of this Court by the executive magistracy of the District.

9. The lower Court records were actually received on 5-1-57 as seen from the office note to the effect 'T. C. records received, checked and acknowledged'. Even then no attempt seems to have been made by the assistant concerned in the office whether the records were resubmitted along with the papers requisitioned. It is on 15-1-57, a note was made that at the time of picking out papers for preparation of paper books in the two appeals, it was found that Ext. 11 in the lower Court records of Government Appeal No. 7 of 1955 alleged to be the license and Ext. 1 in those of Government Appeal No. 8 of 1955, cash memos were not found on the record.

On a note put up by the office on 29-3-57 in Government Appeal No. 7 of 1955 to the effect that Ext. 11 might be excluded from the paper book with the consent of the Government Advocate, a memo was issued to the Government Advocate to that effect. The learned Government Advocate filed a plain paper copy of the application for renewal of the license in question alleged to be a copy of Ext. 11 with an endorsement 'True copy' and requested that it might be accepted as Ext. 11.

A similar copy, it appears, was also supplied by the Civil Supplies Officer, Mayurbnanj. The office note correctly pointed out that these are not the copies of the original license in question and therefore proposed that the matter might be placed before the Registrar if they could be substituted in place of Ext. 11 and included in the paper book. On 3-4-57, the Registrar ordered, 'Let copy of Ext. 11 filed by Government Advocate be included in the paper book, subject to objection if any by the respondent.'

10. Ext, 1 which was missing in Government Appeal No. 8 of 1955 is a book of cash memos. According to the list of exhibits in the judgment, the license in Government Appeal No. 8 of 1955 is Ext. 16. That is not on the record, but a copy of Ext. 16, authenticated to be a true copy presumably by the Civil Supplies Officer is on the record. It is stated by the Additional District Magistrate in his report that as the original was taken away to another case, the copy was substituted.

On the reverse of the true copy of Ext. 16, some conditions of the license are typed, but these are not acknowledged by the officer concerned as 'True copy' and no signature appears on the reverse of the said true copy authenticating it. When records are called for by the appellate Court, it is an elementary rule that the trial Court or the Court which is in custody of the records should call for all the records even ii they were returned to the parties, make the records complete and then send them to the appellate Court.

But this rule, it appears, is more honoured in the breach than in its observance. It would be better if, in the interests of justice, the subordinate magistracy follows this rule whenever it is called upon to submit the records to the appellate Court.

11. As already noted, these appeals were part-heard on 2-7-57 when they were adjourned to 8-7-57 for further hearing and the learned Assistant Government Advocate was asked to communicate with the District Magistrate and find out what actually happened to the missing document and where it was lost. On 8-7-57, the learned Assistant Government Advocate again prayed for time on the ground that no reply was received from the District Magistrate and it was accordingly adjourned to 15-7-57.

On that day also no reply was received by the Assistant Government Advocate who again prayed for time. Taking advantage of the delay in the office of this Court of the actual verification of the records and the letter sent by the office immediately after the receipt of the records acknowledging receipt of the same, the Sub-Divisional Magistrate making the enquiry asked for, audaciously reported that the missing document was lost in the High Court, as can be seen from the enclosure to the letter, of the Additional District Magistrate to the Assistant Government Advocate dated 20-7-57.

Then we ordered the Deputy Registrar to enquire and report by 12-8-57 as to the circumstances under which Ext. 11 in Government Appeal Mo, 7 of 1955 was missing and directed the Government Advocate to rule copies of the reports of the Additional District Magistrate by the next day which were accordingly filed. The Deputy Registrar was given two weeks' time on 12-8-57 to submit his report of enquiry' as he could not file the same before on account of the absence of the concerned assistant.

On 26-8-57, the Deputy Registrar after exhaustive enquiry submitted a report that the papers were received in the office along with the original records at the time when they were sent and that the concerned assistant sent a letter acknowledging receipt of the records without verifying the same. He also reported that on enquiry he was of opinion that Ext. 11 was not sent when the records were originally submitted and it was not missing in the High Court.

12. The two appeals finally came up for hearing on 20-9-57 and the learned Advocate General represented to us that the Assistant Government Advocate wrote another letter calling for the original of Ext. 16 in Government Appeal No. 8 of 1955, but he did not receive any reply to the same. I am constrained to remark that even the letters sent from, the office of the Advocate General are not replied to by the Additional District Magistrate.

It is imperative on his part to reply to the letters sent by the Public Prosecutor of the State who is to look after the interests of the State in matters pending in the High Court. The learned counsel for the respondent in Government Appeal No. 8 of 1955 informed us that he received letters from his client on his enquiry that the original of the license was resubmitted to the District Magistrate for renewal and it was in his office and he also sent him the concerned vouchers of the license having been so sent.

13. Under these circumstances, the position in these two appeals is that the licenses, the breach of the conditions of which was the gravamen of the charges in the two cases, are not before the Court and the Officers of the Government are not keen in trying to produce those documents before the Court to enable the Court to decide the appeals filed on behalf of the State against the acquittals.

The copy of Ext. 16 which is on the records in Government Appeal No. 8 of 1955 cannot be looked into by us as the conditions typed on the reverse side are not authenticated. The learned Advocate for the State wanted to pely, for the conditions of the license, on a copy of those conditions printed in the form. It may be that at the time of granting the license, certain conditions might be struck out or new conditions added. Under these circumstances, we cannot act upon a printed form of the conditions contained in the relevant Act or an unverified typed copy of the conditions on the reverse.

In Government Appeal No. 7 of 1955, Ext. 11 is not to be found and there is no certified copy of the same on the record. Under these circumstances, it is difficult for this Court to set aside the orders of acquittal passed upon the respondents by the trial Court, specially without the primary documents evidencing the conditions a breach of which is made punishable.

14. For the above reasons, we dismiss both the appeals. Let the bail bonds of the respondents be cancelled.

15. After I wrote the judgment and sent it for approval of my learned brother, the learned counsel for the respondent in Criminal Appeal No. 8 of 1955 filed into Court a memo dated 26-9-57 along with a document purporting to be the original license marked Ext. 16 in the case and a postal envelope in which it was sent to the learned counsel by the respondent.

As already stated in paragraph 12 of my judgment, the learned counsel for the respondent in Criminal Appeal No. 8 of 1955 submitted that the original license was sent to the District Magistrate for renewal and it was in his office and that his client sent him also the vouchers of the license having been so sent to the District Magistrate. In the present original license filed, I do not find any statement to the effect that it was renewed or it was sent to the District Magistrate for renewal. Under these circumstances, no useful purpose will be served by taking this document into consideration now, specially in an appeal against acquittal.

Mohapatra, J.

16. I agree.


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