PETITIONER:
VASUDEO KULKARNI
Vs.
RESPONDENT:
SURYAKANT BHATT & ANR.
DATE OF JUDGMENT02/03/1977
BENCH:
GOSWAMI, P.K.
SHINGAL, P.N.
CITATION:
1977 AIR 1331 1977 SCR (3) 109
1977 SCC (2) 304
ACT
Practice and Procedure--Trial Court acquitted the ac-
cused--High Court-When could reverse trial court’s findings.
HEADNOTE
The appellant was a lawyer, under whom the complainant
(first respondent) was a junior. The appellant was engaged
as counsel in certain cases by the complainant’s father.The
appellant submitted statement of accounts to the complain-
ant’s father in respect of the sums spent by him in the
suits. After a lapse of three years the complainant filed a
complaint against the appellant making allegations under ss.
409, 468 and 474 I.P.C. The trial Court acquitted him
holding that the prosecution had been launched after inordi-
nate delay and that there was no clear and conclusive evi-
dence of criminal intention and dishonest mental act on the
appellant’s part. The High Court, on appeal, set aside the
acquittal holding that the appellant’s explanation in regard
to the discrepancies was not true and could not be accepted.
Allowing the appeal to this Court,
HELD: There was no sufficient ground for the High Court
to interfere with the acquittal in this case when the rea-
sons given by the trial Court were weighty and cogent and
there was no compelling justification to take a contrary
view. [112 F]
The mere fact that certain amounts were in the hands of
the appellant and the accounts submitted were incorrect
would not lead to the conclusion that the appellant commit-
ted criminal breach of trust. [111 F]
In the instant case, the complainant was a junior of the
appellant and he could himself easily find out the discrep-
ancy in the accounts and could have drawn the appellant’s
attention to it. The complainant’s father did not authorise
him to file the complaint nor was he examined to corroborate
the complainant. Secondly, in a notice issued to the appel-
lant by the complainant’s father the latter did not at-
tribute any dishonest intention or criminal intent on for-
mer’s part. The High Court was wrong in holding the charge
as proved and in reversing the order of the trial Court.
[111 G; 112 C]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 24
of 1972.
(Appeal by Special Leave from the Judgment and Order
dated 22-10-1971 of the Madhya Pradesh High Court (Indore
Bench) in Crl. A. No. 292/70).
R.L. Kohli, R.C. Kohli and A.G. Ratnaparkhi, for the appel-
lant.
M.K. Khan and S.K. Dhingra, for respondent No. 1.
Ram Panjwani and H.S. Parihar, for respondent No. 2.
The Judgment of the Court was delivered by
GOSWAMI, J. This appeal by special leave is directed
against the judgment of the High Court of Madhya Pradesh
convicting the appellant under section 409, Indian Penal
Code, and sentencing him to one
110
year’s rigorous imprisonment and to a fine of Rs. 250/-, in
default further rigorous imprisonment for three months, in
appeal against acquittal at the instance of the complainant
(first respondent herein).
The appellant is a senior lawyer of 25 years’ standing
in Indore and the complainant was acting as his junior. The
complainant’s father, Dinubhai, was the senior partner of a
firm of Chartered Accountant, M/s. Dinubhai & Co., with its
registered office in Bombay and a branch office in Indore.
The Indore office was looked after by the second partner,
M.C. Mehta. It appears that the firm was dissolved on July
5, 1960, when Mehta ceased to be a partner and Dinubhai
appointed the appellant as counsel and attorney for filing
suits and for recovering dues from various parties. Dinub-
hai filed a suit, being suit No. 13 of 1962, for recovery of
Rs. 12,500/- in the court of the Third Additional District
Judge, Indore, impleading M.C. Mehta and one Chandulal Shah
as defendants in that suit. Although the suit was decreed,
it appears there were two cross appeals against the decree
in the High Court, one by Dinubhai and the other by Chandu-
lal Shah. The appellant was appearing for Dinubhai in both
the appeals. He received some amounts in advance from
Dinubhai and submitted a statement of account of Shri
Dinubhai (Ex. P-1) dated February 9, 1965, wherein two
items, namely, Rs. 210/- and Rs. 110/- were mentioned as
being towards "paper book charges" respectively on
21-4-1964 and 22-9-1964. The entry on 22-9-1964 shows that
the amount of Rs. 110/- is one of several items mentioned
therein as expenses incurred in the appeal flied by Chandu-
lal Shah against Dinubhai. So far as the items mentioned in
Ex. P-1 on 21-4-1964 including the last item of Rs. 210/-,
there is no mention whether the expenditure was actually
incurred on that date.
The complainant was not pulling on well with his father
for some reason or other and also parted company with his
senior, the appellant. He filed a complaint against the
appellant on December 8, 1967, making allegations under
sections 409, 468 and 474 IPC. Ultimately the appellant was
charged under section 409 IPC with regard to the amounts
of Rs. 210/- and Rs. 110/- which were mentioned in the
statement of account (Ex. P-1) received by the complainant
on February 10, 1965. The complainant examined himself and
a clerk of the High Court to prove that no paper book
charges were deposited on the dates mentioned in the ac-
counts. On the other hand a sum of Rs. 26.50 was deposited
as paper book charges on March 18, 1965, in the particular
appeal.
The appellant denied the charge and stated that there
was a typing error in the accounts and the actual figures
should have been Rs. 211/(and not Rs. 210/-) and Rs. 10/-
(and not Rs. 110/-). When the appellant’s attention had
been drawn to these amounts he admitted these to be typing
errors and asked for adjustment of the amount of Rs. 300/-
towards his fees in the case of Kothari Book Depot.
It is rather curious that a criminal complaint should
have been lodged against the appellant nearly three years
after the receipt of the accounts by the complainant.
111
The trial court acquitted the accused (appellant herein)
by observing as follows :--
"To sum up, the prosecution has been
launched after inordinate unexplained delay,
there is no clear and conclusive evidence of
the criminal intention and dishonest mental
act of the accused, the real aggrieved person
has not come with the complainant but has
already sought the alternative remedy in Civil
Court which is being already pursued. The
question whether or not the adjustment made by
the accused towards his fees was proper can
more appropriately be decided by Civil Court.
Accused having reasonable claim against the
complainant for any equivalent sum of money,
his user of the disputed sum for his own
purpose will not amount to criminal breach of
trust".
The High Court, on the other hand, held that the charge
was established against the accused and set aside the ac-
quittal. The High Court held that the explanation of the
accused did not appear to be true and, therefore, could not
be accepted. It further held that it was clear that on the
dates mentioned in the accounts no amounts were deposited as
paper book charges in the High Court. The High Court con-
cluded as follows :--
"Consequently it cannot be doubted that
the respondent, who as an agent of the com-
plainant’s father was entrusted with the
amounts, showed false expenses and thereby
kept the amounts with himself. In the face of
these facts and also on the finding that the
explanation given by the respondent cannot be
accepted, the respondent cannot escape con-
viction under section 409 I.P.C. as that was
the only charge framed against him by the
trying Magistrate".
The statement of account (Ex. P.I ) as well as the
correspondence between the appellant and the complainant’s
father, who was client, dearly show that there was mutual
accounting and adjustment between them. The mere fact that
certain amounts were in the hands of the appellant and the
accounts submitted were incorrect would not lead to the
inevitable conclusion that the appellant committed
criminal breach of trust in respect of these items.
The complainant, who was a junior attached to him and
was looking after his cases could himself easily find out
the discrepancies in the accounts and in a normal course
he would have drawn the attention of his senior on receipt
of the statement of account in February 1965. The accused in
his statement under section 342, Criminal Procedure Code,
stated, inter alia, as follows :--
"Typing error has occurred in the
statement of account of Ex. P-1. The differ-
ence of Rs. 300.00 which has occurred, has
been adjusted against my fees in Kothari Book
Depot’s case at the instance of Suryakant. I
have given a receipt for it which is in
possession of Suryakant. Surya kant used to
maintain account of Court expenses of Dinub-
hai’s cases in a register. That register is
with Suryakant.
112
Suryakant used to remain present in the court
on each date along with me. He knows every-
thing. Nothing is concealed from him. There
is Gadbad of money between Suryakant and
his father. Hence on the instigation of other
people this false case has been launched.
Suryakant had got typed the statement of
account Ex. P-I from the register".
On one side we have the solitary statement of the
complainant. Even his father is not there to corroborate him
or even to show that he authorised him to file the com-
plaint. As against his statement, we have the explanation
of the appellant. The trial court who had an opportunity to
see the complainant giving evidence did not choose to rely
on his version of the case and preferred to accept the
explanation of the appellant. In this state of the evidence
we fail to see how the High Court, in an appeal against
acquittal, thought it possible to hold the charge as proved.
While the complaint was filed on December 8, 1967, a few
months earlier on May 16, 1967, a lawyer’s notice was ad-
dressed to the appellant on behalf of Dinubhai. We may
extract the following passage from that letter:
"My client has instructed me to call
upon you to remit to him the balance of Rs.
1700/- lying with you (after deducting your
fees of Rs. 3300/- from the amount of Rs.
5,000/- paid to you) within 24 hours of the
receipt of this reply otherwise my client will
not only place the matter before the Bar
Council of M.P. but, if so advised, will also
file a suit for its recovery against you at
your cost and consequences which please note".
This would clearly show that neither Dinubhai nor his
lawyer ever thought of attributing any dishonest intention
or criminal intent to the appellant. In view of this letter
it is not possible to accept the sole testimony of the
complainant imputing dishonest intention on the part of the
appellant. We are clearly of opinion that there was no
sufficient ground for the High Court to interfere with the
acquittal in this case when the reasons given by the trial
court were weighty and cogent and there was no compelling
justification to take a contrary view.
At the conclusion of the argument by Mr. Khan on behalf of
the complainant pressing for conviction of the appellant,
Mr. Panjwani,appearing on behalf of the State, fairly
enough, did not think it proper to support the judgment of
the High Court.
In the result the appeal is allowed. The judgment of
the High Court is set aside. The appellant shall be dis-
charged from his bail bond.
P.B.R. Appeal
allowed.
113