C.B. Capoor, J.C.
1. This application by Bishan Dass is to obtain special leave to appeal against an order of acquittal, recorded by a Magistrate second class, in a case under Section 406, I. P. C. The applicant had filed a complaint against the accused for offences under Sections 406, 408, 465, 471, 477 and 477A, I. P. C. The complaint was filed in the Court of the Magistrate first class, Mahasu. After having recorded the prosecution evidence, the learned Magistrate transferred the case to Shri B. R. Lakhan Pal, Magistrate second class, with the direction that a charge under Section 406, I. P. C., may be framed against the accused.
2. The complainant was a licensee for the sale of country liquor for the year 1957-58 in respect of Koti unit. The accused had been employed by him on a salary of Rs. 40/- p.m. to look after the liquor vend shop at Mashobra. The approval of the Excise Department had been obtained for employing the accused. According to the complainant, it was the duty of the accused to sell the liquor and to maintain an account of the sales and to hand over the sale proceeds to him. The gravamen of the complainant was that the accused falsified the accounts by changing some of the leaves of the account books and also committed criminal breach of trust in respect of a sum of Rs. 4,000/5/-.
3. It was further alleged that, on 20-4-1958, settlement of accounts took place between the complainant and the accused and the latter admitted that he utilized a portion of the sale proceeds of the liquor to his own use and that some money was outstanding against the persons, who had purchased liquor on credit.
4. The accused repudiated the charge framed against him and alleged to have been implicated falsely in the crime under consideration out of enmity. He further stated that the complainant used to visit the liquor vend shop every third or fourth day and used to check the accounts and take the sale proceeds. It was further alleged that, often, the complainant used to come to the aforesaid shop along with some boon-companions of his and used to consume liquor in their company. It was also stated that on 17th and 18th of April, settlement of accounts took place between the complainant and the accused and nothing was found to be due against the latter.
5. In order to bring home guilt to the accused, the complainant, besides himself, examined six witnesses, namely, Shadi Lal (P.W. 2), Parmodh Singh (P. W. 3), Shun Chand (P.W. 4), Dhian Singh (P.W. 5), Laiq Ram (P.W. 6) and Makardhawaj (P.W. 7). Of the aforesaid witnesses, Shadi Lal, Parmodh Singh, Laiq Ram and Makardhawaj deposed that on 20-4-1958, the accused admitted having appropriated to his own use a portion of the sale proceeds and agreed to repay the said amount.
6. The learned Magistrate was, however, not impressed well with the aforesaid evidence and he was not satisfied that the offence under Section 406, I. P. C., was established. The correctness of the aforesaid conclusion has been challenged on behalf of the applicant.
7. The principles, which govern appeals against acquittal, are well established. In Ajmer Singh v. State of Punjab, AIR 1953 S. C. 76, it was held that the presumption of innocence in favour of the accused is further reinforced after an order of acquittal and that such an order can be reversed only for very substantial and compelling reasons. The above view was reiterated in Aher Raja Khima v. State of Saurashtra, (S) AIR 1956 S. C. 217. It was held by Bose and Chandrasekhara Aiyar, JJ., who constituted the majority of the Bench, that in an appeal by the State Government under Section 417 against the acquittal of the accused, it is not enough for the High Court to take a different view of the evidence and that there must also be substantial or compelling reasons for holding that the trial Court was wrong. It was further held that if the trial Court took a reasonable view of the facts of the case, interference under Section 417 was not justifiable unless there were really strong reasons for reversing that view. Venkatarama Ayyar, J., who was the other member of the Bench, however, did not subscribe to the aforesaid view in its entirety.
8. Sub-section (3) of Section 417 has been the subject-matter of interpretation in a ruling of the Allahabad High Court, reported in (Municipal Board, Lucknow v. Bhagwan Das), AIR 1959 All 500 and it was held in that case that an application for leave to appeal against acquittal will not be granted unless the High Court is convinced that the conclusion of the Court below that the accused was entitled to an acquittal was erroneous and could not be justified, at all.
9. The principle that is deducible from the aforesaid cases is that special leave to appeal under Sub-section (3) of Section 417 is not to be granted, unless the order of acquittal is not, at all, justifiable on evidence and that the mere fact that another Court would reach a different conclusion would not justify interference with such a finding.
10. It has, therefore, to be seen if the instant case satisfied the test laid down by judicial authority for granting special leave to appeal.
11. The prop of the complainant's case was that the accused had on 20-4-1958, admitted in the presence of witnesses that he had appropriated a portion of the sale proceeds to his use and that he was liable to pay to the complainant a sum of Rs. 4,000/5/-. The witnesses examined on behalf of the complainant were, however, not unanimous on that point. Shri Laiq Ram (P.W. 6) did not state that the accused admitted that he was liable to pay a sum of Rs. 4,000/5/- to the complainant. The witness has stated that it appeared to him from the talk that was going on between the complainant and the accused that the latter owed some money to the former.
He has, however, stated that, on being asked by him, the accused said that he owed nothing to the complainant. He has further stated that no final settlement of account took place in his presence. The circumstance that no writing was obtained from the accused in acknowledgment of his liability went a long way to show that reliance could not safely be placed on the oral statements made by the witnesses that the accused had admitted to have misappropriated a portion of the sale proceeds of the liquor vend shop. There were also discrepancies in the statements made by the prosecution witnesses on the question as to who were present at the time of the alleged settlement of account on 20-4-1958.
There was again undue delay in the filing ofthe complaint. It was filed on 6-6-1958, whereas dispute between the complainant and the accused had arisen soon after 31-3-1958. None of theprosecution witnesses was able to state as to howthe figure of Rs. 4,000/5/- was worked Out. Thefather of the complainant is alleged to have maintained an account, Ex. P. B, relating to the liquorvend shops and, on behalf of the complainant, reliance was placed on that account, but, surprisingly,the father of the complainant was not examined asa witness. It could not, therefore, be said that theconclusion reached by the learned Magistrate wasperverse, or unreasonable and was not, at all, supported on the evidence. Special leave to appeal is,therefore, refused and the application filed by thecomplainant under Sub-section (3) of Section 417, Cr. P. C.,is dismissed.