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Abinash Chandra Bose Vs. Bimal Kumar Sen and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberAdmitted Appeal No. 423 of 1958
Judge
Reported inAIR1962Cal113
ActsConstitution of India - Article 134(1)
AppellantAbinash Chandra Bose
RespondentBimal Kumar Sen and anr.
Appellant AdvocateNalin Ch. Banerji and ;Sukumar Sen, Advs.
Respondent AdvocateSurathi Mohan Sannyal and ;Prasun Ch. Ghose, Advs.
Cases ReferredS. Kuppuswami Rao v. The King
Excerpt:
- .....the accused petitioner was tried under section 409 of the indian penal code before the learned magistrate and was acquitted. in fact, two cases were started by the complainant--one case being no. c 2062 of 1956 for the sum of rs. 5000/-alleged to have been paid on the 27th february,1953 against a receipt which ended in acquittal being affirmed in this court in criminal appeal no. 424 of 1958. the other case was c 2067 of 1956 for two sums of rs. 800/- and rs. 4200/- alleged to have been paid respectively on the 27th february, 1954 and the 20th march, 1954 amounting to rs. 5000/-. these proceedings arise out of this latter case. the learned magistrate found the accused not guilty of the charge under section 409 of the indian penal code and acquitted him, of that charge under.....
Judgment:

P.B. Mukharji, J.

1. This is an application under Article 134(1)(c) of the Constitution. The accused petitioner was tried under Section 409 of the Indian Penal Code before the learned Magistrate and was acquitted. In fact, two cases were started by the complainant--one case being No. C 2062 of 1956 for the sum of Rs. 5000/-alleged to have been paid on the 27th February,1953 against a receipt which ended in acquittal being affirmed in this Court in Criminal Appeal No. 424 of 1958. The other case was C 2067 of 1956 for two sums of Rs. 800/- and Rs. 4200/- alleged to have been paid respectively on the 27th February, 1954 and the 20th March, 1954 amounting to Rs. 5000/-. These proceedings arise out of this latter case. The learned Magistrate found the accused not guilty of the charge under Section 409 of the Indian Penal Code and acquitted him, of that charge under Section 258 (1) of the Code of Criminal Procedure and ordered him to be set at liberty forthwith. The complainant appealed before a Division Bench of Debabrata Mookerjee, J. and D. N. Das Gupta., J. The Division Bench allowed the appeal, set aside the order of acquittal and, in fact, directed a new trial in accordance with law and in the light of the observations made by the Division Bench.

2. Serious questions of law arise on the observations made by the Division Bench which have been urged by the petitioner as grounds for us to certify this to be a fit case for appeal to the Supreme Court. These observations relate to a letter Ex. 1 alleged to be written by the accused on the 18th March, 1954. That document was relied upon by the prosecution to establish and prove payment of Rs. 4200/-. This is a crucial document for the prosecution. This document was. challenged as forgery. Particularly it was said on behalf of the accused at the trial before the learned Magistrate that the words '4200 sankranta' were interpolated and not in the handwriting of the accused. It was also a part of the defence of the accused that the alleged reply of the complainant Ex. 1/2 was never sent and the words 'Yes--A. C. Bose' marked Ex.. 1/3 were not in the handwriting of the accused. Indeed, the defence was that the letter 'Ex.' 1 with the Bengali signature Ex. 1/1 was written by the accused Abinash Bose (the petitioner) without the words '4200 Sankranta' and this paper was utilised by Bimal Sen to fabricate evidence, against the accused by interpolating Exs. 1/2 and, 1/3.

3. This defence case was clearly put to the complainant Bimal Kumar Sen when he was giving evidence and it was clearly suggested to him that the impugned portions of the document were plain, forgeries in order to implicate the accused. It is, admitted that in spite of this challenge the complalnant took no steps whatever to prpduce expert evidence to aid the Court in coming to any conclusion as to the authorship of the impugned portion of the document Indeed, the learned Magistrate himself says that on a careful scrutiny even without the handwriting expert, the difference are obvious and as such be could place no reliance on Exs. 1/2 and 1/3. The learned Magistrate, therefore, came to the conclusion that the prosecution, failed to prove by reliable evidence that the words ''4200 sankranta' in Ex. 1 and the -words and signature in Ex. 1/3 were in the handwriting of the accused petitioner or that the complainant Bimal wrote back Ex. 1/2 or the letter and that he sent back the paper to the accused on the 18th March, 1954 and got it back from the accused with Ex. 1/3.

4. The Division Bench in setting aside the order of acquittal and allowing the appeal and directing a retrial by its judgment observed that the complainant's failure to call expert evidence in spite of challenge and in spite of the express allegation that the document was a forgery was serious but the Division Bench took the view that as the relationship in this case was that of a lawyer and client, the matter acquired something of a fiduciary character and therefore in the interest of justice there should be retrial before another Magistrate with the direction that if the complainant failed to produce expert evidence then the Court itself will call an expert witness.

5. Now, this raises, in our opinion, a very serious and important question of criminal jurisprudence. In the first place, if the prosecution fails to prove the guilt of the accused in spite of the fact that attention is clearly drawn to an allegation of forgery, then conld it be corrected by setting aside that order and asking for a retrial? Indeed, the Division Bench was alive to the seriousness of the situation because it said that if it was an ordinary case between one client and another they would have hesitated at this distance of time to send the case back even though the prosecution did not avail itself of the opportunity to prove its own case. The learned Advocate for the petitioner has contended that in a case under Section 409 of the Indian Penal Code no different standard either of proof or of procedure or of evidence is to be assumed. The question of relationship between lawyer and client may be germane to a question of disciplinary jurisdiction of the Court but is irrelevant in an appeal from an acquittal under Section 409 of the Indian Penal Code.

5a. A Division Bench of this Court of Harries, C. J. and Lahiri, J. in Ramanlal Rathi v. State, reported in : AIR1951Cal305 , made the following observation (per Harries, C. J.) :

'It is not for the Court to advise the prosecution or the defence as to how they should establish their respective cases.' Apparently the learned Magistrate was satisfied in this case that there were grave discrepancies and the document relied on to prove the case of the prosecution was a dubious document. Apparently also the Division Bench could not come to their own conclusion that the document was genuine for otherwise they would have themselves decided on the evidence on record. On the contrary the Division Bench thought that evidence should be taken by observing :

'Still, in a case of this kind it is eminently desirable that the Court should be assisted by a qualified expert since almost the whole case depends on the proof of the fact whether the impugned portions of. the document were in the hand of the respondent.' In those circumstances, the question naturally arises on the observations of Harries C. J. quoted above, was it for the court to advise the prosecution as to how the case should be established.

6. It was not contended before us either on behalf of the State or on behalf of the complainant: that this is not a point which makes it a fit case for a certificate for appeal to. the Supreme Court. Unquestionably it is a far reaching question of great importance.

7. What however was contended was a technical point that this judgment or order is not a final order within the meaning of Article 134(1) of the Constitution. We have no hesitation in rejecting this objection as without any substance in this case. Here the accused petitioner was acquitted and set at liberty by the learned Magistrate. His order of acquittal was set aside and an entirely new trial was directed by this Court. The judgment of the Division Bench of this Court finally disposes of this matter so far as this Court is concerned. The trial that it had directed not to be confused with an order of remand. The trial was directed to proceed de novo with all evidence including the evidence of the handwriting expert. In fact the new trial was directed to be in accordance with law. Nothing therefore is going to come back before that Division Bench which has finally disposed of this matter. Reference was made to the Federal Court decision in S. Kuppuswami Rao v. The King . That case is really against this contention for at page 4 of that report Kania C. J. Observed as follows :

'In criminal proceedings an examination of the discussion in paras 260-64 of Vol. IX of Halsbury's Laws of England (Hailsham Edition) shows that the word 'judgment' is intended to indicate the final order in a trial terminating in the conviction or acquittal of the accused.'

Here, in this case the learned Magistrate acquitted -the accused petitioner and the Division Bench set aside that order of acquittal. That being so, this decision clearly comes within the meaning of the expression 'Judgment, final order or sentence in a criminal proceeding of a High Court' within the meaning of Article 134(1) of the Constitution. So far as 'a criminal proceeding of this High Court' is concerned, the Division Bench has finally disposed it of by this order of new trial. The fact therefore that on the old complaint the proceeding will again go before the Magistrate is immaterial and does not make this judgment and order of the Division Bench of this Court any the less a judgment and a final order within the meaning of Article 134(1) of the Constitution.

8. For the reasons stated above, we certify that this case is a fit one for appeal to theSupreme Court under Article 134(1)(c) of the Constitution.

9. Further proceedings in the Court below will remain stayed for a period of three months from this date to enable the petitioner to get further orders from the Supreme Court.

10. Let a certificate under Article 134(1)(e) of the Constitution be drawn up and issued.

Law, J.

11. I agree.


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