1. The appellant Rejeswar Prosad Misra, who has been convicted under s. 408of the Indian Penal Code on three counts and sentenced in the aggregate tosuffer rigorous imprisonment for one year and to pay a fine of Rs. 2,000 (indefault 6 months' further rigorous imprisonment), was a travelling salesman ofMessrs. Dabur (Dr. S. K. Burman) Private Ltd. The area of his operation was theSuburbs of Calcutta and the Mill Area. His duty was to secure orders fromAgents and to effect delivery of goods to them in the Company's vans. He wasrequired to receive payments from the agents and to deposit the money with thecashier of the Company. The three charges on which he was tried and convictedwere : on 10th and 19th February, 1958 he received, on behalf of the Company,sums of Rs. 300 and Rs. 240 respectively, from a firm Isaq and Sons and on 3rdMay, 1958 a sum of Rs. 1502 from Bombay Fancy Stores, but failed to depositthese sums with the cashier. A complaint was accordingly filed against him inthe Court of the Chief Presidency Magistrate, Calcutta on August 29, 1958. Thecharges were framed against him under s. 408 I.P.C. on July 16, 1959. Theprosecution proved the receipt of the money by him and his failure to depositit with the cashier. His defence was that he had deposited the amount and thatthe case was-started against him as a counter-blast to a dispute between himand v. D. Srivastava, sales supervisor, who had taken away certain documentsfrom him and in respect of which he had filed a case against Srivastava, S. N.Mukerjea, General Manager, R. C. Burman, Managing Director and others beforethe Police Magistrate, Alipore. On August 17, 1959 the appellant served throughcounsel on the complainant a notice to produce in court on August 20, 1959 thefollowing documents :
(a) Sale Book (Mill Are) for1958.
(b) Collection Register from 2ndJanuary, 1958 upto 15th July, 1958.
(c) Challans for the year 1958 asper parcel no. etc. (entered in the related sale books) of Agent No. 1026,1185, 296, 1021 and 181.
(d) Agency Ledger for the year1958.
(e) Staff Security DepositRegister.
(f) Relevant register/statementshowing accused's dues on account of commission earned on the basis of saleseffected by him for the years 1957 and 1958.
2. The complainant's counsel replied to the notice as follows :-
'Your request to producecertain books cannot be complied with for the objections noted against theitems separately.
(1) Sale Book - this bookcannot be produced unless you specify either the agent or the parcel no. Onfurnishing particulars the relevant entries will be shown.
(2) Collection Register-We haveobjection to the other salesman's collection being shown to you. As far as yourclient's returns are concerned they have been filed, if anything more relatingto your client is necessary we will produce that on getting particulars.
(3) Challans for the year1958-We have no objection to produce them for your inspection.
(4) Challans for the year1958-Please supply particulars-The number of agents must be furnished.
(5) Staff Security DepositRegister-This took cannot be produced for your inspection. Only an attestedcopy of the page showing security deposit by your client can be supplied.
(6) Accused's commissionaccount-Will be produced. Please supply the particulars asked for so that thenecessary papers may be produced for your inspection by 22nd August,1959.'
3. The documents were not produced. In the cross-examination of somewitnesses for the complainant a suggestion was made that these documents werewithheld because they would have demonstrated that the appellant had depositedthe money with the cashier. A. C. Burman (P. W. 7) was questioned and hereplied as follows :-
'...... I know that defence wanted the productionof Sale Book, Agency Ledger and the Register containing the commission ofaccused. The documents were not produced as it was not possible to produce thesame without particulars. There are 20 Sale Books of 1958. It is not a factthat the books were not produced as they would show that the complaint is false...... '.
4. The appellant produced no evidence in rebuttal of the prosecution case. ThePresidency Magistrate recorded a judgment of acquittal on March 7, 1960. He wasof opinion that the only question was whether the accused had deposited theamount with the cashier of the Company. He held that the complainant had notbeen able to disprove the claim of the accused (appellant) that he had made thedeposit. The learned Magistrate pointed out that some of the documents whichthe accused (appellant) had asked for were not produced by the complainant andthe benefit of the doubt ought to go to the accused (appellant).
5. The complainant then obtained special leave under s. 417(3) of the Codeof Criminal Procedure from the High Court of Calcutta to appeal against theacquittal. The appeal was heard by S. K. Sen and A. C. Roy JJ. On June 28, 1962,the learned Judges ordered the production of the documents in question and thetaking of additional oral evidence to prove the documents. The order is briefand it may be conveniently set out here :
'After hearing the arguments on both sides itappears to be necessary to take certain additional documentary evidence forarriving at a just decision in the case. The documents in question are theagency ledgers for 1958 relating to the selling agents Md. Isaq and Sons andBombay Fancy Stores; and the collection book Part I of 1958 which supplementsthe collection book Part II which was marked as Ext. 19. The PresidencyMagistrate S. N. Sanyal or his successor-Magistrate will please take thenecessary evidence so that the above documents and registers are formallyproved and allow the accused an opportunity to cross-examine the witnessesproving the documents, and then transmit the records with the registers anddocuments to this Court within a period of six weeks from the date.'
6. The complainant thereupon produced the documents as ordered and examinedtwo witnesses in proof of the documents. The appeal was then heard and allowedand the acquittal of the appellant was set aside and he was convicted andsentenced as already stated. The High Court held that there was overwhelmingevidence to prove the receipt of the three sums by the appellant and that theadditional evidence demonstrated clearly that the money received by theappellant was not deposited with the cashier of the Company. The appellant hasfiled this appeal by special leave, and it is contended that the High Courtacted beyond the jurisdiction conferred by s. 428 of the Code of CriminalProcedure in receiving additional evidence which has enabled the prosecution toimprove its case. This is the only point which was argued and which we needconsider, because, if the evidence was rightly received, there is no doubt thatthe conclusion of the High Court on fact is correct.
7. The appellant strongly relies upon a decision of this Court reported inAbinash Chandra Bose v. Bimal Krishna Sen and another A. I. R.  S. C. 316 and the respondents upon Ukha Kolhe v. State of Maharashtra, A. I. R.  S. C. 1531 another case of this Court which is to be found in the samevolume at p. 1531. Both sides have referred us to many cases decided by theHigh Courts defining the powers of the appellate Court to take additionalevidence. The appellant contends that additional evidence could not be taken inthe appeal against the order of acquittal in the present case.
8. It may be stated at once that the Code does not differentiate between theambit of an appeal from a conviction and that of an appeal from an order ofacquittal except that an appeal against a conviction is as of right and lies toCourts of different jurisdiction depending on the nature of sentence, the kindof trial and the court in which it was held, whereas an appeal against an orderof acquittal can only be made to the High Court by the High Court by the StateGovernment or by a complainant (where the case started on a complaint) with thespecial leave of the High Court. The matters on which an appeal under the Codeis admissible are stated in s. 418 and they are the same for the two kinds ofappeals. Such appeals lie on a matter of fact as well as a matter of law(except in trials by July). The procedure for dealing with the two kinds ofappeals is identical and the powers of appellate Courts in disposing of theappeals, though indicated separately in s. 423 are in essence the same. Under thatsection the appellate Court (which means the High Court in an appeal against anorder of acquittal) may--
'(a) in an appeal from anorder of acquittal, reverse such order and direct that further inquiry be made,or that the accused be re-tried or committed for trial, ad the case may be, orfind him guilty and pass sentence on him according to law;
(b) in an appeal from aconviction (1) reverse the finding and sentence and acquit or discharge theaccused, or order him to be re- tried by a Court of competent jurisdictionsubordinate to such Appellate Court or committed for trial, or (2) alter thefinding, maintaining the sentence, or with or without altering the finding,reduce the sentence, or (3) with or without such reduction and with or withoutaltering the finding alter the nature of the sentence but, subject to theprovisions of section 106, sub-section (3), not so as to enhance the same;
9. Section 428 next provides :
'428. (1) In dealing withany appeal under this Chapter, the Appellate Court, if it thinks additionalevidence to be necessary, shall record its reasons, and may either take suchevidence itself, or direct it to be taken by a Magistrate, or when theAppellate Court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidenceis taken by the Court of Session or the Magistrate, it or he shall certify suchevidence to the Appellate Court, and such Court shall thereupon proceed todispose of the appeal.
(3) Unless the Appellate Courtotherwise directs, the accused or his pleader shall be present when theadditional evidence is taken; but such evidence shall not be taken in thepresence of jurers or assessors.
(4) The taking of evidence underthis section shall be subject of the provisions of Chapter XXV, as if it werean inquiry.'
10. It was at one time felt that the powers of the High Court were somewhatlimited when dealing with an appeal against an order of acquittal but that wasdispelled by the Judicial Committee in Sheo Swarup & others v. King Emperor 61 I. A. 398 in a categoric pronouncement (later accepted by this Court inmany cases) that :
'There is....... no foundation for the viewapparently supported by the judgments of some Courts in India that the HighCourt has no power or jurisdiction to reverse an order of acquittal on a matterof fact except in cases in which the lower court has 'obstinately blundered' orhas 'through incompetence, stupidity or perversity' reached such 'distortedconclusions as to produce a positive miscarriage of justice', or has in someother way so conducted itself as to produce a glaring miscarriage of justice orhas been tricked by the defence so as to produce a similar result. Sections417, 418 and 423 of the Code give to the High Court full power to review at largethe evidence upon which the order of acquittal was founded, and to reach theconclusion that upon that evidence the order of acquittal should be reversed.No limitation should be placed upon that power unless it be found expresslystated in the Code. But in exercising the power conferred by the Code andbefore reaching its conclusions upon fact, the High Court should and willalways give proper weight and consideration to such matters as (1) the views ofthe trial Judge as to the credibility of the witnesses; (2) the presumption ofinnocence in favour of the accused, a presumption certainly not weakened by thefact that he has been acquitted at his trial; (3) the right of the accused tothe benefit of any doubt, and (4) the slowness of an appellate Court indisturbing a finding of fact arrived at by a Judge who had the advantage ofseeing the witnesses.'
11. The appellant relies upon certain observations of this Court in the caseof Abinash Chandra Bose A. I. R. 1963 S. C. 316. The accused in that casewas prosecuted under s. 409, Indian Penal Code for misappropriating an amountbelonging to his client who was the complainant. Prosecution was based upon aletter said to be written by him which he stated was a forgery. No expert wasexamined by the complainant and the accused was acquitted. The High Court setaside the acquittal and ordered a retrial. It was held by this Court that thiswas against 'all well-established rules of criminal jurisprudence'that 'an accused person should not be placed on trial for the same offencemore than once, except in very exceptional circumstances'. Holding that ifthe High Court did not think that 'the appreciation of the evidence by thetrial court was so thoroughly erroneous as to be wholly unacceptable, ''it should not have put the accused to the botheration and expense of asecond trial simply because the prosecution did not adduce all the evidencethat should and could have been brought before the Court of firstinstance' and which 'it was nowhere suggested had been refused to bereceived.' Mr. Chakravarti contends that there is no essential differencebetween the taking of fresh evidence under s. 428 or the ordering of a retrialunder s. 423, that this evidence was always available and had, in fact, beenasked to be brought in at the trial but was not, and the prosecution should nothave another chance whether by way of retrial or additional evidence- The otherside contends that in Ukha Kolhe's caseA.I.R.  S.C. 1531) the principleswere restated exhaustively and that we should guide ourselves by the statementof the law laid down there. In that case there was a conviction of the accusedunder s. 66(b) of the Bombay Prohibition Act. The report of the ChemicalExaminer proved the existence of alcohol in the sample of blood but there weremany points in the evidence of experts, which remained unexplained and theirexamination was perfunctory. On appeal the conviction was set aside and aretrial was ordered. Tin's Court in dealing with the order of retrial observedin the majority judgment :
'An order for retrial of a criminal case is made inexceptional cases, and not unless the appellate Court is satisfied that theCourt trying the proceeding had no jurisdiction to try it or that the trial wasvitiated by serious illegalities or irregularities or on account ofmisconception of the nature of the proceedings and on that account in substancethere had been no real trial or that the Prosecutor or an accused was, forreasons over which he had no control, prevented from leading or tenderingevidence material to the charge, and in the interests of justice the appellateCourt deems it appropriate having regard to the circumstances of the case, thatthe accused should be put 1 his trial again............'
12. It was pointed out that the Sessions Judge could have taken recourse tothe power conferred by s. 428 and not ordered a retrial.
13. Section 428 occurs in Chapter XXXI which deals with appeals. It speaksof any appeal under that Chapter and the word 'any' means every one of theappeals (no matter which) mentioned in the thirty-first Chapter of the Code.Section 417(3) is in that Chapter and s. 428 clearly applied to the appealwhich was in the High Court. It only remains to determine the limits (if any)of the jurisdiction and power of the appellate Court (here the High Court) inordering additional evidence and whether the limits so determined were exceededby the High Court in the present case.
14. Mr. Chakravarti contends that the discretion under s. 428 is subject tothe same conditions as those in s. 423 and which were laid down in AbinashChandra Bose's case A.I.R  S.C. 316. He lays special emphasis on thecondition that the prosecution should not be given a second chance to fill upthe gaps in its case. He submits that this has been done here. Mr. SarjooPrasad on the other hand explains the Abinash Chandra Bose's case with the aidof Ukha Kolhe's case A.I.R.  S.C. 1531 and submits that in the latter,this Court gave an exhaustive list of circumstances in which an order forretrial can be made and indicated that in cases falling outside thosecircumstances, the appellate Court has a discretion to order additionalevidence, if considered necessary.
15. These arguments disclose a tendency to read the observations of thisCourt as statutory enactments. No doubt, the law declared by this Court bindsCourts in India but it should always be remembered that this Court does notenact. The two cases of this Court point out that in criminal jurisdiction the guidingprinciple is that a person must not be vexed twice for the same offence. Thatprinciple is embodied in s. 403 of the Code and is now included as aFundamental Right in Art. 20(2) of the Constitution. The protection, however,is only as long as the conviction or acquittal stands. But the Codecontemplates that a retrial may be ordered after setting aside the convictionor acquittal (as the case may be) if the trial already held is found to beunsatisfactory or leads to a failure of justice. In the same way, the Codegives a power to the appellate Court to take additional evidence, which, forreasons to be recorded, it considers necessary. The Code thus gives power tothe appellate Court to order one or the other as the circumstances may requireleaving a wide discretion to it to deal appropriately with different cases. Thetwo cases of this Court deal with situations in which a retrial was considerednecessary by the appellate Court. In the case of Abinash Chandra Base, thisCourt held that the order for retrial was not justified. In Ukha Kolhe's case too the order for retrial was considered unnecessary because the end could havebeen achieved equally well by taking additional evidence. This Court mentioned,by way of illustration, some of the circumstances which frequently occur and inwhich retrial may properly be ordered. It is not to be imagined that the listthere given was exhaustive or that this Court was making a clean cut betweenthose cases where retrial rather than the taking of additional evidence was theproper course. It is easy to contemplate other circumstances where retrial maybe necessary as for example where a conviction or an acquittal was obtained byfraud, or a trial for a wrong offence was held or abettors were tried asprincipal offenders and vice versa. Many other instances can be imagined. TheLegislature has not chosen to indicate the limits of the power and this Courtmust not be understood to have laid them down. Cases may arise where either ofthe two courses may appear equally appropriate. Since a wide discretion isconferred on appellate Courts, the limits of that Court's jurisdiction mustobviously be dictated by the exigency of the situation and fair play and goodsense appear to be the only safe guides. There is, no doubt some analogybetween the power to order a retrial and the power to take additional evidence.The former is an extreme step approximately taken if additional evidence willnot suffice. Both actions subsume failure of justice as a condition precedent-There the resemblance ends and it is hardly proper to construe one section withthe aid of observations made by mis Court in the interpretation of the othersection.
16. Additional evidence may be necessary for a variety of reasons which itis hardly necessary (even if it was possible) to list here. We do not proposeto do what the Legislature has refrained from doing, namely, to controldiscretion of the appellate Court to certain stated circumstances. It may,however, be said that additional evidence must be necessary not because itwould be impossible to pronounce judgment but because there would be failure ofjustice without it. The power must be exercised sparingly and only in suitablecases. Once such action is justified, there is no restriction on the kind ofevidence which may be received. It may be formal or substantial. It must, ofcourse, not be received in such a way as to cause prejudice to the accused asfor example it should not be received as a disguise for a retrial or to changethe nature of the case against him. The order must not ordinarily be made ifthe prosecution has had a fair opportunity and has not availed of it unless therequirements of justice dictate otherwise. Commentaries upon the Code are fullof cases in which the powers under s. 428 were exercised. We were cited a fairnumber at the hearing. Some of the decisions suffer from the sin ofgeneralization and some others from that of arguing from analogy. The facts inthe cited cases are so different that it would be futile to embark upon theirexamination. We might have attempted this, if we could see some useful purposebut we see none. We would be right in assuming the existence of a discretionarypower in the High Court and all that we consider neces-.sary is to see whetherthe discretion was properly exercised.
17. The appellant here had received three sums from the agents and theallegation was that he had misappropriated the amount. During his trial heasked for certain documents but for some reason, into which it is hardly necessaryto go, they were not brought. There was oral evidence tending to show that themoney was not credited with the cashier of the Company. The Magistrate was notinclined to accept oral evidence and basing himself entirely on this failure,ordered an acquittal. The High Court took additional evidence because it was ofthe opinion that this evidence was necessary. It is manifest that, if the HighCourt wished to rely on oral evidence, fair play at least demanded that theaccused (appellant) should be given a chance of seeing the documents where thedeposit by him would be mentioned, if made. Mr. Chakravarti contends that theMagistrate had drawn a presumption against the complainant from the failure ofthe complainant to produce this evidence and the order of the High Courtdeprived the appellant of the benefit of the presumption. There is no force inthis argument which may be raised invariably is all cases in which the powersunder s. 428 are exercised. There was a serious defalcation of money. The moneywas received and the only question was whether it was deposited or not. Oralevidence showed that it was not. The accused insisted that the books of accountshould have been brought and so they were brought as a result of the order. Theaccused himself demanded that evidence and but for the vagueness of his demand,this evidence would have been produced earlier. Rather than take a differentview of the oral evidence, the High Court rightly thought that interests ofjustice and fair play demanded that this additional evidence should be taken.In our judgment, the High Court acted within the powers conferred by the Code.
18. The appeal thus has no substance. It fails and is dismissed.
19. Appeal dismissed.