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PETITIONER: NIRMALJIT SINGH HOON

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL AND ANR.

DATE OF JUDGMENT06/09/1972

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. DUA, I.D. KHANNA, HANS RAJ

CITATION:  1972 AIR 2639            1973 SCR  (2)  66  1973 SCC  (3) 753  CITATOR INFO :  RF         1976 SC1672  (15)  R          1977 SC2018  (5)  RF         1979 SC 437  (8)  D          1981 SC  22  (20,21)  RF         1986 SC2045  (45)

ACT: Code  of  Criminal Procedure (Act 5 of  1898),  ss.  156(3), 195(1)(c), 202 and 204-Scope of.

HEADNOTE: H-company (in voluntary liquidation) was the owner of 51% of the ,shares in T-company and 707 shares out of them were  in the possession ,of T-company.  The 5th respondent owned  the balance  of 49% shares.  In a suit filed by him against  the H-company the High Court passed a decree directing H-company to deliver the 51% shares to him on payment of a certain sum and  issued  an  injunction  restraining  H-company,   until delivery of the shares, from exercising its rights as holder of  those :shares.  Some time later one of the  liquidators, V, of H-company, and M went to the office of T-company where V  executed  a receipt and an indemnity bond.   The  receipt recorded  the  fact  that the 707  share  certificates  were received from the 2nd respondent one of the directors of the T-company.   It also contained two endorsements; one in  the handwriting  of the 2nd respondent stating "shares with  me" and  another, addressed to the 2nd respondent  alleged  to. have  been  written by V, stating, "I do not want  to  carry these  with me, hence leaving meantime with  personally  for delivery  to  me later".  The indemnity  bond  purported  to indemnify T-company against any claims by the 5th respondent in  respect  of the 707 shares and  contained  also  certain undertakings. H-company  took  out  execution against  T-company  for  the delivery  of  the  707 shares claiming  entrustment  of  the shares to the second respondent by V. Copies of the  receipt and  the indemnity bond were filed, and the  originals  were shown  to the Counsel for T-company, during the  proceedings for satisfying them that the copies were correct copies. Thereafter,  the  appellant, another liquidator  of  the  H- company,  filed  a  complaint before  the  Chief  Presidency

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Magistrate  against  respondents 2 to 5, the  directors  and Secretary  of the T-company, alleging that V and M  went  to the  office of, T-company for obtaining the 707  shares  for delivering them to respondent 5, that the second  respondent delivered  the  shares  to V, that since V  had  a  luncheon engagement he did not want to take them with him, that  the second respondent made the first endorsement on the  receipt and V himself made the second endorsement to clarify why the shares  were  left with the second respondent, that  V  took away  the indemnity bond with him as the  second  respondent wanted  the signature of the appellant also, that later,  on that day, the solicitors of H-company sent their  assistant C to the second respondent for the shares, that the  :second respondent gave an assurance that he would send them through the solicitors of the T-company but did not do so, that  the second respondent was withholding the shares at the instance of  the  fifth  respondent  who was,  as  a  result  of  the injunction,  in a position to control the T-company  without having  to  pay  for  the 51  %  shares  and  was  therefore interested  in preventing H-company deliverng the shares  to him,  and  that respondents 2 to 5 were guilty  of  offences under ss. 120B, 406 and 420, I. P. C. The second respondent filed a counter complaint against  the appellant,  V  and M, under ss. 467, 471, 193, 474  and  109 I.P.C. He alleged that the 707 shares were always lying with the T-company as the T-company 67 claimed a lien over them in respect of certain payments  for income-tax  purposes,, that the second  respondent  produced them  before V for his inspection, that he objected  to  the word  "received" in the receipt and wanted instead the  word "inspected",  that  V  declined to  alter  the  receipt  and thereupon   the  second  respondent  wrote  out  the   first endorsement   with  a  view  to  clarify  that   the   share certificates  were  still in his custody and  not  with  the fifth respondent.  He denied his having delivered them to  V or that V entrusted them to him or, that he promised to hand them  over to the solicitors of H-company.  He alleged  that the  appellant  later on made an interpolation,  namely  the second  endorsement in the receipt to give a false twist  to the  first  endorsement and to show ;that  the  certificates were entrusted to the second, respondent by V. The  Chief  Presidency  Magistrate directed  the  police  to enquire  into  the appellant’s complaint  under  s.  156(3), Cr.P.C.  The receipt was produced before the police  by  the appellant,  and  the police seized the 707 shares  from  the fourth respondent, the Secretary of T-company.  The  ,police however  reported that the complaint was a false  one.   The appellant   thereupon   filed  objections  and   the   Chief Presidency  Magistrate directed a judicial enquiry into  the complaint.   The  Chief  Presidency  Magistrate  find   also directed a judicial enquiry into the counter complaint.  The Magistrate  who  inquired into the matter  reported  to  the Chief  Presidency  Magistrate that no prima facie  case  was made  out  in the complaint, by the appellant,  but  that  a prima  facie case was made out against the appellant, V  and M. In  the  course of the enquiry, the appellant and C  and  M, were examined as witnesses, but V, who was in U.K., was  not examined.  His affidavit was sought to be filed, but it  was held that the affidavit could not be received in evidence. The  Chief  Presidency  Magistrate and  the  High  Court  in revision  agreed that the complaint of the appellant  should be dismissed, but held that in the cunter complaint  process should issue but only against the appellant.  Reference  was

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also  made  by  the High Court to the  nonexamination  of  V during the judicial enquiry. In appeals to this Court, (1) allowing the appeal  regarding the  com-plaint by the appellant, (by the Majority) and  (2) dismissing  the appeal regarding the complaint  against  the appellant. HELD  (per Shelat and Dua, JJ.): (1) Under s.  202  Cr.P.C., Magistrate,  ’on  receipt of a complaint, may  postpone  the issue of process and either inquire into the case himself or direct on inquiry to be made by a Magistrate subordinate  to him  or by a police officer for ascertaining. its  truth  or falsehood.  The inquiry by the Magistrate envisaged at  this stage  is  for ascertaining the truth or  falsehood  of  the complaint,  that  is,  for  ascertaining  whether  there  is evidence in support of the complaint. so ’as to justify  the issue  of process.  Unless, therefore, the Magistrate  finds that  the evidence led before him is self-contradictory,  or intrinsically  untrustworthy, process cannot be  refused  if that  evidence makes out a prima facie case.  In a  revision against  such refusal, the High Court also has to apply  the same test. [79A-B, F-H] In  the  present case, ’both the receipt and  the  indemnity bond were before the Magistrate and were marked as documents in  the  case.  They were also before the High  Court.   The receipt  prima facie showed that V at first "received"’  the share   certificates  from  the  2nd  respondent  and   ’the endorsement  admittedly  written  by  the  2nd   respondent, indicates that V had left them with the 2nd respondent.  The evidence of M and the appellant was that the 2nd  respondent had  demanded  an indemnity bond which was signed by  V  and later by the appellant.  Such a bond containing 68 the indemnity and undertakings would not have been  executed unless  the  share  certificates had been  delivered  to  V. According  to the evidence of M, C, and the  appellant,  the two  documents were executed on the date when V went to  the T-company to obtain delivery of the shares.  V, if examined, would have been the principal witness, and his affidavit, in his absence, could not constitute admissible evidence.   But examination of V would have meant bringing him to India from England  at  considerable  cost.  The  mere  fact  that  the appellant  did  not examine him could not be  a  ground  for throwing out the appellant’s complaint when there was  other evidence  making  out  a  prima  facie  case.   Neither  the Magistrate  nor the High Court expressed any view  that  the evidence  either of the appellant or of the other  witnesses was  false  or intrinsically unbelievable.  It may  be  that much could be said on both sides, but certainly this was not a  case of there being no prima facie, case or the  evidence being  so self-contradictory or intrinsically  untrustworthy that process could properly be refused.[81H; 82A-H] (Per Khanna, J. dissenting) : An enquiry or investigation is ordered under s. 202, Cr.P.C., by a Magistrate on receipt of a  complaint  for the purpose of ascertaining the  truth  or falsehood  of  the  complaint.   If  the  Magistrate,  after considering  the statement on oath of the  complainant   and hiswitnesses   and   the   result  of   the   enquiry   or investigation under the section,is  of the  opinion  that there  is no sufficient cause for proceeding,be may  dismiss the  complaint.  If, on the contrary, he is of opinion  that there issufficient  cause for proceeding he  should  issue process against the accusedin  accordance  with  s.  204. The  evidence  which  is  required  to  be  adduced  by  the complainant at this stage need not be sufficient for record- ing  a finding of conviction; but that does not absolve  the

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complainant,  who  wants  the Magistrate  to  issue  process against  the  accused, from leading some  credible  evidence which  shows,, prima facie, that the offence was  committed. [95E-H] In  the present case, there seems to be an inconsistency  in the receipt between the writing of V and the endorsement  by the  2nd respondent.  The receipt is thus ambiguous, and  in the absence of oral evidence, it is difficult to infer  from the  receipt that the shares were entrusted by V to the  2nd respondent.   The best and most important person to  explain the  ambiguity and prove the entrustment was V but  he  was; not  examined as a witness, and his affidavit could  not  be received in evidence under s. 510A, Cr.P.C., as his evidence was  not of a formal character.  The other person,  who  was present  at the time of the alleged entrustment was  M,  but his evidence does not prove the delivery of the shares to  V or  entrustment  by  him  to  the  second  respondent.   The evidence  of  C,  the indemnity bond,  the  letters  of  the Solicitors  of  H-Company and the statement  of  the  second respondent in his compsaint-assuming it could be referred to in the appellant’s complaint-do, not reveal any  entrustment of the shares to the 2nd respondent. [92C; 93B-C; 94A-B,  D, G; 95A-E] (2)(Per  Curiam)  :  The  first part  of  s.  195(1)  (c), Cr.P.C.,  provides that the offence in respect of which  the complaint in question is filed must be one under s. 463,  or s. 471, or s. 475 or 4. 476, I.P.C. The second part provides that such an offence must be alleged to have been  committed by  a party to any proceeding in any court in respect  of  a document  produced or given in evidence in such  proceeding. A document can be said to have been produced in a court when it is not only produced for the purpose of being tendered in evidence,  but also for some other purpose.  It is  only  if the  two requirements are satisfied that no court  can  take cognizance of such an offence except on a complaint filed by such  Court  or a Court subordinate to it.  [85-D-F;  87G-H; 88A-B] 69 (a)In  the  present  case,  in  respect  of  the   counter complaint, the receipt was produced by the appellant  before the police, and formed part of the record of the case  which went  to  the  Chief Presidency Magistrate  along  with  the police  report.  It could not however be said  that  because the  investigation  was  ordered  by  the  Chief  Presidency Magistrate  under s.156(3), Cr.  P.C. the investigation  was part of the proceedings in his Court. [86E-G] (i)Section  156(3) expressly states that an  investigation ordered by a Magistrate would be an investigation made by  a police officer in his statutory right under sub-sections (1) and (2).  That being so, once an investigation by the police is   ordered  by  the  Magistrate,  he  cannot   place   any limitations  on, or direct the officer conducting it  as  to how  to  conduct  it.  It cannot be  said  that  the  police officer  acting  under  s.156(3)  was  a  delegate  of   the Magistrate   or  that  the  investigation  by  him  was   an investigation  by  or on behalf of the  Magistrate.  [86B-F; 87A-B] In  re : Gopal Sidheshwar, (1907) 9 Bom.  L.R.737  and  King Emperor v.     Khawaja  Ntzir Ahmad. 71 I.A.  203,  referred to. (ii)Before   a  Magistrate  can  be  said  to  have   taken congizance of an offenceunder  s.  190(1) (a),  Cr.P.C.  he must have not only applied his mind tothe contents of  the complaint presented to him, but must have done sofor    the purpose  of  proceeding  under  s.  200  and  the  following

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sections.   In  the  present  case,  the  Chief   Presidency Magistrate  applied  his  mind  only  for  the  purpose   of directing police investigation under s. 156(3).   Therefore, the  Chief  Presidencey  Magistrate having  not  even  taken cognizance  of the offence, no proceeding could be  said  to have commenced before him of which the inquiry by the police could be said to be part and parcel. [86F-H] R.R. Chari v. U.P. [1951] S.C.R. 312 and Jamuna Singh  v. Bhadai Sah, [1964] 5 S.C.R. 37, referred to. (b)(i)  It  is  only the copies of  the  receipt  and  the indemnity  bond, that were annexed to the affidavit  in  the execution  proceeding  that  could  be  said  to  have  been produced  in proceedings before the High Court and  not  the originals,  which  were  only shown to  the  Counsel  of  T- company. [87B-D] (ii)Moreover, assuming the receipt was produced before  the High Court, the offence charged against the appellant is not its  user in the proceedings before the High Court, but  its production   and   user   by  the   appellant   during   the investigation  by  the police in the  appellant’s  complaint against the respondents. [87E-F] (iii)  It could not be said that once a document alleged  to be forged is used in any proceeding before any court at  any time; s.195(1) (C), Cr. P.C. would at once be attracted  and would he a bar against a complaint by a party complaining of its fraudulent user in any later proceeding because, if that were so, a party to the proceeding before a court can go  on producing such a document ad seriatim in several  subsequent proceedings with impunity, if the Court before which it  was first  produced thinks it inexpedient to file  a  complaint. That clause only says that in respect of any of the offences enumerated  there, no congnizance can be taken of a  private complaint  when such offence is said to have been  committed by a party to a proceeding in a court in respect of a  docu- ment  produced  or tendered in evidence in  that  proceeding except on a ,complaint by such court. [88C-G] 7 0

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.  213 and 214 of 1968. Appeals by special leave from the judgment and orders  dated December  7,  1967 of the Calcutta High  Court  in  Criminal Revisions Nos. 304 and 291 of 1967. M.C. Chagla, K. K. Jain and H. K. Puri, for the appellant (in both the appeals). P.K.   Chatterjee,  S.  Joseph  and  D.  N.  Gupta,   for respondent No. 2    (in  Cr.   A. No. 213 of  1968  and  for respondents Nos. 2 and 3 (in Cr.  A. No. 21th of 1968). Debabroto Mookherjee, G. S. Chatterjee, for respondent No. 1 tin Cr.  A. No. 213 of 1968). Debabroto  Mookherjee,  P.  K.  Chakravarty,  Prodyot  Kumar Chakravarty,  for  respondent No. 1 (in Cr.  A. No.  214  of 1968.). The  Judgment of J.M. SHELAT & 1. D. DUA, JJ. was  delivered by SHELAT, J., H. R. KHANNA, J., gave a dissenting opinion. SHELAT, J. These two appeals, by special leave, arise out of two  complaints, both of which were filed in respect of  the same  transaction and are therefore disposed of by a  common judgment. Appeal  No. 214 of 1968 is against the judgment of the  High Court  of  Calcutta dismissing, the complaint filed  by  the appellant  on January 5, 1966 under secs. 120B, 406 and  420

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of  the Penal Code against respondents 2 to 5, who  are  the directors’  and the secretary of M/s Turner, Morrison &  Co. Ltd. (hereinafter referred to as the company). The  case  of  the appellant in the said  complaint  may  be stated as follows : At the material time, the appellant, one S. Varma and  Frank Goldstein were the liquidators of Hungarian Investment Trust Ltd.  (in voluntary liquidation) hereinafter referred to  as Hungerford).   At  all  material times  Hungerford  was  the registered owner of 51 % of the shares of the company and as much  was  ordinarily  entitled  to  have  the  control  and management of that company.  These 51 % shares numbered 2295 shares  of the face value of Rs. 1.000 each.  Out of  these, 707 shares were in possession of the company. Respondent  5,  Haridas  Mundra, owned the  balance  of  49% shares.   In  or about 1961, Hungerford agreed to  sell  and Mundra agreed to purchase the said 51% shares.  Mundra filed a suit being Suit No. 600 of 1961 against Hungerford in  the High Court of Calcutta for specific performance of the  said agreement. 7 1 The  High  Court decreed the suit  directing  Hungerford  to deliver the said 2295 shares against payment of Rs. 86  lacs and  odd  and issued until delivery of the said  shares  was made to Mundra, aninjunction  restraining Hungerford  from exercising  its  rights as holder of those 51%  shares.  The curious  result of the said induction was that Mundra  could get  control  and  management of the company  with  the  49% shares  held by him without having to pay the price  of  the said 51% shares, until Hungerford gave delivery of all those 2295 shares, out of which, as aforesaid, 707 shares were  in the custody of the company. The problem for Hunger-ford  was how  to get back those 707 shares from the company so as  to be able to deliver all those 2295 shares and obtain  payment against such delivery of Rs. 86 lacs and odd from Mundra. The said S. Varma, who was then residing in England, came to India   in   or   about   May   1965.   According   to   the complaint,Varma, accompanied by one N. K. Majumdar, went  to the  office  of the company on May 27, 1965,  and  upon  his request  for the said 707 share certificates, obtained  from respondent 2(D.M.Jaffray)  the- said share  certificates. Varma thereupon issued areceipt     for     those     share certificates  and also executed an indemnity bond in  favour of  the  company against any possible  claims  which  Mundra might  make  in respect of those 707 share certificates.  By the said bond the liquidators of Hungerford indemnified the, company to the extent of Rs. 53 lacs said to have been  paid by  that  company  by way of taxes for  the  Turner  family, undertook  to assist that company to  recover that sum  from the  estates of that family and furthermore to  produce  the said  707 share certificates whenever required for  delivery to  Mundra in terms of the said decree and to indemnify  any claim  which might arise as a result of delivery thereof  to Varma.  It is clear that once those 707 share  certificates, were handed over to Verma, Hungerford would, in terms of the said decree, be able to deliver to Mundra all the said  2295 shares  and  Mundra  would have to  take  delivery  of  them against payment of Rs. 86 lacs and odd. The  receipt (document 2) which Varma executed at  the  time recorded the fact of the said 707 share certificates  having been received by him from Jaffray, and their particulars and numbers.  The prosecution case was that as Varma had, then a luncheon  engagement he did not wish to carry those  scripts together with the corresponding bank transfer forms endorsed by the company, and therefore, gave them back to Jaffray  to

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hold  them on his behalf until called for them later in  the day.  He thereupon took  Jaffray’s    endorsement,     viz., "shares with me" under which Jaffray affixed his  signature. There  was  no  dispute that the said  endorsement  and  the signature underneath it were in the handwriting of 72 Jaffray.    In   order  to  clarify  how  the   said   share certificates  remained with Jaffray, Verma also  wrote  over the said endorsement the following:               "Dear Mr. Jaffray,               I  do not want to carry these with  me,  hence               leaving  meantime  with  you  personally   for               delivery to me later." Were  this  writing  to be genuine,  the  word  ’personally’ therein would mean safe custoday of Jaffray in his  personal capacity as distinguished from that of the company. Later that day, on the instructions of Varma, M/s  Sanderson & Morgan, the Solictors of Hungerford, sent their assistant, one  Chaudhry,  with  their  own letter  as  also  a  letter addressed by Varma to Jaffray with a request to hand over to Chaudhary those 707 share certificates.  Jaffray declined to do  so  stating that he would send them to M/s  Sanderson  & Morgan   through  M/s  Orr  Dignam  &  Co.,  the   Company’s solicitors.  Since the said share certificates were not sent to  them,  M/s Sanderson & Morgan, by  their  letter,  dated August 31, 1965 to the appellant, recorded the fact of their having  sent the said Chaudhary to Jaffray, the  refusal  of Jaffray to deliver the said share certificates to  Chaudhary and  his assurance to hand them over through  the  Company’s solicitors, and lastly, of their having not received so  far the  said  share certificates either from  Jaffray,  or  the Company’s  solicitors.   In  the meantime  Jaffray  went  to England  and the rest of the directors of the company,  when demands  for  the said shares were made, replied  that  they would  wait  for  Jaffray’s instructions on  his  return  to India.  This position appears to emerge from Varma’s  letter dated  November 29, 1965 to the appellant.  In  that  letter Varma,  repeated that Jaffray had the said shares  for  safe custody on his behalf, that Jaffrar was withholding delivery thereof  at the instance of Mundra and the other  directors, that Jaffray thereby committed breach of trust and that  the appellant should adopt criminal proceedings against  Jaffray and t he other directors. The  appellant’s  case was that it was at  the  instance  of Mundra  that  Jaffray  withheld  delivery  of  those   share certificates   with  a  view  to  prevent  Hungerford   from delivering all the said 2295 shares and compelling Mundra to pay Rs. 86 lacs and odd against such delivery.  It is  clear that  so long as the liquidators could not deliver  all  the 2295 shares, Mundra could not be called upon to pay the said price, and Mundra in the meantime could continue to have the control  of the Company, although he had only  the  minority holding  of 49% shares and thus keep Hungerford at bay  pre- venting it by virtue of the said injunction from  exercising its rights in respect of its 51 % shares as against 49% held by Mundra.  It 73 was in this background that on January 5, 1966 the appellant filed  a  complaint before the Chief  Presidency  Magistrate against Jaffray, C.N. Rodewald and Mundra, the directors  of the Company and A.J. Hormusji, its secretary. Para  3  of the said complaint set out the delivery  of  the said  707  share certificates with the  corresponding  blank transfer  deeds  therefore by Jaffray to Varma,  his  having executed  the  receipt  in favour of  the  Company,  Jaffray

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having made the said endorsement and Varma thereafter having written the said note partly by the side of and partly  over the  said  endorsement.   Para 9 of the  complaint  read  as follows:               "That  your petitioner has come to  know  that               accused No. 1 (Jaffray) has parted custody  of               the  said 707 shares illegally and  wrongfully               to   Turner  Morrison  &  Co.,   Calcutta   in               conspiracy   with  the  other  three   accused               connected  with  Turner  Morrison  &  Co.   to               deprive  your  petitioner  from  the  physical               custody of the said 707 share certificates and               the blank transfer deeds with the sole  object               of   defeating  your  petitioner’s  right   to               recover  Rs.  86,60,000 from  accused  No.  4,               Haridas  Mundhra against physical delivery  of               2,295   shares  of  Turner  Morrison  &   Co.,               Calcutta." The Chief Presidency Magistrate directed, under sec.  156(3) of  the  Code of Criminal Procedure, the police to  make  an inquiry.   In the course of that inquiry the  police  seized the  said  707 share certificates from Hormusji.   It  would appear   that   although   the   appellant   requested   the investigating  officer  to examine the  said  Majumdar and Varma,  who, it was said, was prepared to come to India  for that  purpose, that officer declined to do so.   The  police thereafter  made their report recommending discharge of  the accused on the ground that the complaint filed by the appel- lant was false, that the said receipt was a forged  document and  sought  permission  of the Magistrate  to  take  action against the appellant.  On May 7, 1966, the appellant  filed a  protest  application  requesting  the  Chief   Presidency Magistrate to take the matter out of the hands of the police and  to  order  a judicial  inquiry.   Thereupon  the  Chief Presidency  Magistrate directed the  Presidency  Magistrate, 3rd   Court,  Calcutta  to  hold  such  an   inquiry.    The proceedings  thereupon went to that magistrate  before  whom the appellant and his witnesses P. R. Chaudhary and Majumdar gave their depositions.  Varma was not examined as he was in England,  but  an affidavit by him was produced  before  the Magistrate. In  his deposition before the Magistrate the appellant  pro- duced the said receipt (marked document 2) and the said 7 4 indemnity  bond (marked document 5) and stated on oath  that the receipt was in the handwriting of Varma, that the  words "shares  with  me" marked ’2’ and the  signature  thereunder were  in the handwriting of Jaffray, and that the  indemnity bond  was in Varma’s handwriting and which he had  given  to the  witness for his signature He also deposed that he  had gone  to  Jaffray on that very day, that is, May  27,  1965, with the receipt, the said bondand  a letter from  Varma to Jaffray and had demanded from himthe  said 707  share certificates and had said at the time that he was  agreeable to sign the said bond as the other liquidator of Hungerford, that Jaffray thereupon showed the said sharecertificates to him and assured him that he would hand them overto     M/s Sanderson  & Morgan, and that on that assurance  he  affixed his signature on the indemnity bond and told Jaffray that he would send his solicitors to take delivery of the said share certificates  His evidence further was that  thereafter,  he returned back to his hotel where Mundra was waiting.  Mundra inquired of him as to why he wanted those share certificates to  which he replied that he wanted them together  with  the rest  of  the  share certificates to be  delivered  to  him,

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against payment of Rs. 86 lacs, whereupon Mundra  threatened that he would see that the said 707 share certificates  were not  handed over to him.  Faced with this threat, he  called on  his  solicitors and instructed them to  call  for  those share  certificates immediately.  M/s Sanderson  and  Morgan sent  their assistant with their own letter and  the  letter written by Varma, with whom he, (the appellant) also  went. The assistant handed over those letters to Jaffray and asked for the delivery of the share certificates.  Jaffray pleaded that it was late in the day, that the office was closed  and its  key was not with him, but promised that he  would  send them  to  his  solicitors M/s Orr, Dignam &  Co.  The  share certificates  were, however, not sent and were later  seized by  the  police  from the custody, not of  Jaffray,  but  of Hormusji to, whom Jaffray must have handed them over in  his capacity as the secretary of the Company. To the same effect was the deposition of P.  R.  Chaudhry, the  assist-ant  of M/s Sanderson & Morgan  with  ’Whom  the appellant  had on that day approached Jaffray.  Wit.  N.  M. Majumdar, who was said to have accompanied Varma earlier  in the  day,  deposed  that both  Jaffray  and  Rodewald  were, present  when they went to the office of Turner  Morrison  & Co., that on Varma asking for the shares, the two  directors wanted him to execute the indemnity bond, that Varma  signed the bond, that as the two directors wanted the signature  of Hoon  also,  Varma kept the bond with him so  as  to  secure Hoon’s  signature,  that Varma then left, leaving  the  said certificates with Jaffray to be sent later to M/s  Sanderson & Morgan.  He ’also deposed to the fact of 75 Varma  having  written out the receipt in his  presence  and Jaffray  making the said endorsement and then Varma  writing on  the receipt the reason why he left the said shares  with Jaffray. Varma did not come to India to give his deposition, but sent in  affidavit giving his version as to the delivery  of  the said  share certificates to him by Jaffray, his having  been accompanied  by Majumdar at that time, his having  executed the  said  receipt and ’he indemnity bond, his  having  then entrusted  the  said shares to Jaffray, and  Jaffray  having assured him to keep them in his personal custody and to hand them over later to M/s Sanderson, & Morgan, his having given a  note  addressed  to Jaffray to  deliver he  said  share certificates  to the appellant, and lastly,  Jaffray  having told  him  on telephone that as the  representative  of  M/s Sanderson & Morgan had arrived late he had not been able  to hand  over  the  said. share  certificates  and  once  again assuring  him that he would deliver them to M/s Sanderson  & Morgan. At  that stage of the inquiry, when no process bad yet  been issued, Jaffray could not give his version.  But his version as to what took place on May 27, 1965 is avail-able from his deposition in the counter-complaint he lodged against  Hoon. That complaint is the subject matter of Criminal Appeal No,. 213 of 1968 heard along with this appeal.  His case in  that deposition,  was that the said 707 share  certificates  were lying  with the company as the company claimed a lien  over them in respect of a sub of Rs. 53 lacs having been paid  by it to the Income Tax authorities in India for and on  behalf of Hungerford and for which the company had filed a suit and had  a  receiver appointed’ to ’obtain possession  of  them. There  is, however, no doubt that ,these share  certificates were  with the company on May 27, 1965, for, even  according to  affray, when Varma saw him on that day complaining  that the  company  had parted with those  share  certificates  to

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Mundra,  he produced them before Varma for  his  inspection. According  to him, Varma at that stage brought out  a  typed receipt  "to  show that be had inspected the  shares".   His case  was  that he objected to the word "received"  in  that receipt and wanted instead the word "inspected", but.  Varma declined to alter the receipt and thereupon be wrote out the words "shares with me" with a view to clarify that the shard certificates were still in his custody and not with  Mundra. He  denied  his  having delivered them to  Varma,  or  Varma having entrusted them to him, or his having promised to hand them  over to M/s Sanderson & Morgan, and alleged that  Hoon later  on  made  an interpolation marked  (3)  in  the  said receipt to give a false twist to hi said endorsement and  to show  that the said certificates were entrusted to  ’him  by Varma.   Since the share certificates remained all along  in the possession of the company, the police. seized them, 7 6 Later  on  from Hormusji.  We may note that Jaffray  in  his deposition did not mention the indemnity bond though it  had been  ,executed at the same time when the said  receipt  was executed. The  Presidency  Magistrate, 3rd Court, held  by  his  order ,dated January 5, 1967 that the appellant had failed to make out  a  prima  facie  case, and  he  could  not,  therefore, recommend ,the issue of process.  His order records two main reasons  why  he thought that no prima facie case  was  made out.   The  first  was that though, according  to  him,  the receipt, if believed, would establish entrustment, it  could not be given "even its face value", since Varma, the central figure, had failed to give evidence.  Though in England at that  time, he could have flown to India for the purpose  of giving evidence.  He discarded his affidavit’ as  acceptance of  such evidence was not permissible either under sec.  60 or  sec.  32  of the Evidence Act.  He  also  discarded  the evidence of Majumdar on the ground that sec. 60 required the ,best  evidence and such best evidence would have been  that of  Varma,  had  he  been  examined.   Besides,   Majumdar’s evidence,  according  to  him,  contained  "some  points  of obvious  absurdities", in that Jaffray’s insistence that  an indemnity  bond  should  be Signed by both  Varma  and  Hoon indicated  that  he  could not have parted  with  the  share certificates before Hoon had signed ’that bond. The  case together with the report went back to  the-  Chief ’Presidency  Magistrate.   By his order dated  February  15, 1967, "the Chief Presidency Magistrate held that "it  cannot be said that the share scripts in question were entrusted to accused No.   and accordingly therefore the suggested charges Cannot be brought against any of the accused persons".   The reasons  he  gave  for  his  order  were:  (1)  that  though entrustment  of share certificates, was stated in para 5  of the  complaint, it was no where stated that it was  done  on the  strength  of  the receipt, (2) that  the receipt  was introduced  in the case "in a curious way", in that, it  was brought on record by Hoon, who was not present either at the time  when  Varma wrote out the portion marked  (3)  in  the receipt, or when he entrusted the said share certificates to Jaffray, and that he (Hoon) had "very carefully avoided that issue  in his statement", and (4) that though Hoon  had  the ,,opportunity to examine Varma, he failed to do so. Reason  No.  I was actually incorrect.  Para 3 of  the  com- plaint, dated January 5, 1966 clearly asserts that Varma en- trusted the said share certificates to Jaffray and to record that  entrustment wrote the note [portion marked (3) in  the receipt  and  that Jaffray also for that  purpose  made  his endorsement that ’the said share certificates were with him.

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Reason  No.  2  is  understandable.   It  is  difficult   to appreciate how the Magistrate                              77 could  remark that Hoon either introduced the receipt "in  a curious  way"  or that he "avoided the  issue  carefully  Ad mittedly, Hoon was not present at the time of the  execution of  the  receipt  or the alleged entrustment  of  the  share certificates  to affray.  Obviously, he could not depose  to those  two  facts from his personal  knowledge.   There  was accordingly  no question of his avoiding the issue.   These observations,  therefore,  could not have  been  justifiably made.   As  for the third reason, Varma was,  no  doubt  not examined.  The question is whether at that preliminary stage when  the only consideration was whether a prima facie  case of  entrustment was made  out or not, it was  necessary  for Varma to be called from England to give evidence ?   Besides examining himself, the appellant had examined Majumdar,  who claimed  to be an eye-witness to the delivery of  the  said share certificates to Varma and Varma’s entrustment of  them to,  Jaffray, the execution of the receipt and the  bond  by Varma,  and finally, Jaffray’s assurance to hand  them  over later  when called for.  Strangely, the  learned  Magistrate did  not discuss Majumdar’s evidence, nor the two  documents nor the evidence of Chaudhary, nor the letter written by M/s Sanderson  &  Morgan on that very day to Hoon of  their  not having been given the share certificates by Jaffray. The revision application filed by the appellant against  the order of dismissal was rejected by the High Court.  The High court  gave  two grounds for dismissing that  application  : firstly,  the failure of the complainant to explain how  the said  707  share  certificates got into  possession  of  the Company,  which  failure  made  the  story  of  Varma  about delivery  to  him and entrustment by him to Jaffray  of  the said  share certificates "open to criticism"; secondly,  his failure to explain the reasons for furnishing, the indemnity bond  on  behalf of Hungerford.  The High Court was  of  the view  that  these two circumstances were "the  most  unusual cercuinstances   which  could  be  inconsistent   with   the prosecution   story   of   entrustment   and   of   criminal misappropriation  and cheating".  It noted the  omission  to examine  Varma  and also the refusal by  the  Magistrate  to consider  Verma’s affidavit.  According to the  High  Court, however, this was "not an important aspect of the case.  The really  important aspect are (sic) provided by the two  most unusual circumstances that I have referred to above.  Unless those  circumstances could be sufficiently explained to  the satisfaction of the court, no process could be issued.   And those circumstances were not explained." It  is clear from these remarks that unlike the  Magistrate, the  High  Court  did  not attach  much  importance  to  the omission  to  examine Verma although he was said to  be  the author  of  the  entrustment. what appears  to  have  mainly weighed with the 78 High Court were the "two most unusual circumstances", namely the omission to explain the, initial possess-ion of the said share  ,certificates  by  the Company and  the  omission  to explain why the indemnity bond had to be executed. With  respect to the High Court, the fact that the said  70’ ,share  certificates  were initially with  the  Company  was never in ,issue between the parties.  The issue between them was  whether  on  May  27, 1965  Jaffray  and  Rodewald  had delivered them to Varma, and whether Varma, in his turn  had handed  them  over  to  Jaffray’s  personal  custody  to  be returned to him later on that day.  Therefore, the  question

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as  to,  bow  and  in what  circum,stances  the  said  share certificates  were in possession of the Company was  totally irrelevant.   Equally  irrelevant were the  reason  why  the indemnity  bond was executed first by Varma and the  by  the appellant.   In any case, the reasons for executing it  were not.   Par  to seek.  The Company claimed a  lien  on  those share ,.Certificates on account of its having satisfied  the tax  liabilities  of Turner family as recited  in  the  bond itself.     As  further  recited in  the  bond,  Mundra  also claimed  those shares by virtue of the ,said decree  in  his favour.   According to the appellant, Jaffray and  Rodewald, therefore,  insisted  that, the liquidators of  Hunger  ford should  execute the said bond to cover the  company  against any  risk arising from the said claims.  Besides, there  was no question of the appellant having to explain how the  said share, certificates were in possession of. the company, for, on that aspect the. parties were never at variance.  So  far as  the  bond  was concerned, both the  appellant  and  wit. Majumdar  had  deposed  that it had  been  executed  at  the insistence  of Jaffray and Rode wald.  Therefore, these  two circumstances, the failure to explain ,which the High  Court characterised  as  the most unusual circumstances,  were  on record and since the parties were not at issue ,on the first and  the bond itself recited the reasons for its  execution, there  was  no question of the appellant and  his  witnesses having failed to explain them. Under  sec. 190 of the Code of Criminal Procedure, a  magis- Irate can take cognizance of an offence, either on receiving a  ,complaint  or  on a police  report  or  on  information’ otherwise  received.  Where a complaint is presented  before ’him,  he can under sec. 200 take cognizance of the  offence made out therein and has then to examine the complainant and his  witnesses.   The  object  of  such  examination  is  to ascertain  whether  there is prima facie case  ’against  the person  accused  of  the offence in the   comptaint  and  to prevent the issue of process on a complaint which is  either false or vexatious or intended only to harass such a person. Such  examination  is provided therefore to  find  ouwhether there is or not sufficient ground for proceeding.  Under 79 sec.  202,  a  magistrate, on receipt of  a  complaint,  may postpone  the issue of process and either inquire  into  the case himself or direct an inquiry lo be made by a magistrate subordinate  to him or by a police officer for  ascertaining its truth or falsehood.  Under sec. 203, he may dismiss  the complaint; if, after taking the statement of the complainant and  his witnesses and the result of the investigation,  if any, under sec. 202, there is in his judgment "no sufficient ground  for proceeding".  The words ’sufficient ground  used also   in  sec.  209  have  been  construed  to  mean   ,the satisfaction that a prima faice case is made out against the person  accused by the evidence of witnesses entitled  to  a reasonable  degree of credit, and not sufficient ground  for the  purpose of conviction. [see R. G. Ruia  v.  Bombay(1)]. In Vadilal Panchal v. Ghadigaonkar(2) this Court  considered the  scheme  of sees. 200 to 203 and held that  ,he  inquiry envisaged  there is for ascertaining the truth or  falsehood of the complaint, that is, for ascertaining whether there is evidence  in support of the complaint so as to justify  the issue of process.  The section does not say that a  regular trial  of  adjudging the truth or otherwise  of  the  person complained  against  should take place at that  stage,  for, such  a person can be called upon to answer  the  accusation made against him only when a process has been issued and  he is  on  trial. Sec. 203 consists of two parts.   The  first

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part  lays  down  the materials which  the  magistrate  must consider, and the second part says that if after considering those  materials  there  is in-his  judgment  no  sufficient ground  for proceeding, ’he may dismiss the  complaint.   In Chandra   Deo  Singh  v.  Piokash  Chandra  Bose,(1)   where dismissal  of a complaint by the Magistrate at the stage  of sec.  202 inquiry was set aside, this Court laid  down  that the  test  was  whether  there  was  sufficient  ground  for proceeding  and not whether there was sufficient ground  for conviction, and observed (p. 653) that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to  be left  to  be  decided  by  the  appropriate  form at   the appropriate  stage  and  issue of a  process  could  not  be refused.   Unless, therefore, the Magistrate finds that  the evidence   led   before   him   is   selfcontradictory,   or intrinsically  untrustworthy, process cannot be  refused  if that  evidence makes out a prima facie case.  In a  revision against such a refusal, the High Court also has to apply the same test.  The question, therefore, is whether while apply- ing  this test the Chief Presidency Magistrate was right  in refusing  process  and  the High  Court  in  revision  could confirm such a refusal. (1)[1958] S.C.R. 618. (3) [1964] 1 S.C.R. 639. (2) [1961] 1 S.C.R. 1. 8 0 As earlier stated, there were before the Magistrate, besides the  evidence  of  the appellant  and  wit.   Majumdar,  who claimed to be an eye-witness, the receipt and the  indemnity bond.   Over’  and  above this, there was  the  evidence  of Chaudhary,  who  had  gone to Jaffray to  obtain  the  share certificates armed with Varma’s letter and the letter of M/s Sanderson  & Morgan which prima facie supported the case  of entrustment.   The receipt prima facie showed that Varma  at first ’received’ the share certificates from Jaffray and the endorsement   thereunder  admittedly  written  by   Jaffray, namely, "shares with me", seemed to indicate that Varma,  as the  complaint  alleged, had left them with  Jaffray  to  be subsequently handed over to M/s Sanderson & Morgan on behalf of  Hungerford.  The evidence of Majumdar and Hoon was  that Jaffray  had demanded an indemnity bond, that the  bond  was signed  first  by Varma and later at his instance  by  Hoon. Prima  facie,  such  a bond containing  both  indemnity  and undertakings  could not have been executed unless the  share certificates  had been delivered to Varma as stated  in  the receipt.  Once It was shown through these two documents that the  share certificates were delivered, the  endorsement  of Jaffray  below  the receipt, namely, "shares  with  me"  was capable of being construed as Varma having, left the  share certificates with Jaffray lo be handed over to him or on his behalf when called for. As  against the case of entrustment, Jaffray’s case, as  set out earlier, was that the word ’receive& in the receipt  was wrongly  used by Varma and that he had insisted  that  Varma should  use the word ’inspected’, for, he had allowed  Varma the  inspection of the share certificates only and  had  not delivered them to him and made the said endorsement to  make that position clear.  That undoubtedly was his defence.  But reading  the  two  documents one is  bound  to  ask  himself whether  Varma and Hoon were likely to execute the  bond  if Varma  had  merely  inspected and  not  received  the  share certificates.   It  would also prima facie  appear  that  if faffray  had only given their inspection, he would not  have allowed  Varma to prepare the receipt in the words in  which

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it  was couched.  In any event, with the word ’received’  in it, he would not have written out the endorsement which  was capable  of  showing that the shares were with  him  because after  executing  the  receipt Varma had left  them  in  his personal custody. In support of the High Court’s order counsel for the respon- dents  argued that there was no reference of the receipt  in the  protest application, dated May 7, 1966, that  likewise, there  was no reference therein of the indemnity bond,  that there were contradictions in the versions of Varma and  Hoon as  to when the appellant signed that bond, that  the  said share certificates were 81 tinder attachment, and therefore, Jaffray, was not likely to deliver  them  to  Varma,  that  Majumdar  did  not  mention entrustment  in  his evidence, that the letter of  Varma  to Jaffray  said to have been carried by Chaudhry when he  went to  take  delivery of the said share  certificates  was  not produced,  and lastly, that though Hoon had complained  that the  police  had  not given him an  opportunity  to  examine Varma,  he  failed  to produce him  before  the  Magistrate, though  he  had  both time and opportunity  to  do  so.   In addition,  Mr. Chatterjee, appearing for  Jaffray,  Rodewald and Horniusji argued that so far as Hormusji was concerned, there was no evidence against him except the bare allegation of   conspiracy,  that  the,indemnity   bond   intrinsically contradicted the case of delivery of the shares to Varma and their  entrustment to Jaffray inasmuch as according to  that document delivery was to be made to M/s.  Sanderson & Morgan and  not to, Varma, and finally, that the evidence  at  best showed  that  it was a case of promise to  deliver  and  its breach and not one of entrustment and breach of trust. We  refrain  at  this stage to express our  views  on  these contentions lest such views might later on affect one  party or  the other.  Nevertheless, we are bound to say that  both the  receipt and the indemnity bond, whether referred to  in the  protest application or not, were before the  Magistrate and were marked by him as documents 2 and 5. They were  also before the High Court.  Over and above these two  documents, there  was  the evidence of Majumdar,  Hoon  and  Chaudhary, according  to which the two documents- were executed on  May 27,  1965 when Varma went to the Company’s office to  obtain delivery of the said shares.  It is true that Varma was  not examined  though,  if  examined,  he  would  have  been  the principal  witness.  It is also true that his affidavit  in his  absence  could  not  constitute  admissible   evidence. Despite  that  omission, there was evidence, both  oral  and documentary,  supported  by contemporaneous letters  of  M/s Sanderson  & Morgan, demanding the said  share  certificates from Jaffray personally.  It may be that much could be  said on both the sides.  But it was certainly not a case of there being  no  prima facie case or the evidence being  so  self- contradictory  or intrinsically untrustworthy  that  process could properly be refused.  This follows from the fact  that neither  the Chief Presidency Magistrate nor the High  Court expressed  the  view  that  the  evidence,  either  of   the appellant  or  of Majumdar or, of Chaudhary,  was  false  or intrinsically   unbelievable.    Indeed,  both   the   Chief Presidency  Magistrate  and  the High  Court  founded  their orders  of  dismissal mainly on the ground  of  omission  to examine  Varma  without  considering  whether  despite  that omission there was other evidence on record which made out a sufficient   ground  for proceeding with the case.   At  the stage of sec. 202 7-L348Sup.C.I./73

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82 inquiry  what  a  complainant  has to make  out  is  such  a sufficient ground.  He need not necessarily produce at  that stage all the evidence available to him.  Merely because the appellant did not examine Varma, (however important he  was) because  that  would have meant bringing him to  India  from England  at  considerable cost, could not be  a  ground  for throwing  out his complaint,, even though such of the  other evidence  he  led was capable of making out  a  prima  facie case. There is no gainsaying that although respondent Mundra held only  minority  shares,  he was and continues  to  be  in  a position to control the management of Turner Morrison & Co. without having to pay the price of the rest of the shares by reason  only  of the said 707 share  certificates  being  in possession  of  that company and  therefore  unavailable  to Hungerford  to  deliver  them to him.   He  had,  therefore, sufficient interest, to say the least, to bring about such a position  that  Hungerford  would not be in  a  position  to deliver  the  said  shares and he could  continue  to  have control  if the company without owning the  majority  shares and without paying for them.  It was, therefore, not totally improbable  that  jaffray  had at  first  thought  that  the indemnity bond sufficiently safeguarded the interests of the company even against a possible plaint who Mundra might make in respect of the said 707 shares, and therefore,  delivered them to Varma.  The evidence on record and the circumstances of the case would suggest that he probably changed his  mind later  on  possibly  at  the instance  of  Mundra,  who,  as aforesaid, was interested in withholding the deliver of  the said  707  share  certificates,  and  handed  them  over  to Hormusji   instead   of   to  Varma.    We   mention   these circumstances  as possibilities only which might have to  be considered  at a later stage and not as our  conclusions  in these proceedings. As  regards  respondent Rodewald, Mr.  Chatterjee  drew  our attention  to  an order dated April 10, 1967  by  which  the Court  discharged  the  rule against  him.   Mr.  Chatterjee argued  that no separate special leave petition having  been filed  against that order, the appeal so far as  Rodewal  is concerned  has to be dismissed.  We find, however, that  the appeal was against all the four accused, including Rodewald. The  special  leave granted on September 16, 1968  was  also against  all  of them.  The special leave  Was  against  the judgment and order of the High Court dated December 7,  1967 by which the revision filed by the appellant against all the four  accused was rejected.  That being so, and the  special leave  petition being against all the four accused, it  must include  the  order  dated  April  10,  1967.   There   was, therefore,  no  necessity  of  a  separate  application  for special leave against that order. In our view. there was sufficient evidence before the  Chief Presidency Magistrate which made out a prima facie case, and 83 even if much could be said on ’both the sides, it was not  a case of refusal of process. For  the reasons aforesaid the order of dismissal passed  by the Chief Presidency Magistrate and its confirmation by  the High  Court  cannot be sustained.   Consequently,  the  High Court’s  judgment  and  order has to be set  aside  and  the appeal  allowed.  We direct the Chief Presidency  Magistrate to issue the process and proceed with the case.  SHELAT,  J.,  This  appeal  arises  out  of  the   counter- complaint,  dated  June 18, 1966, filedby  Jaffray  charging offences under secs. 467, 471, 193, 474 and 109, Penal  Code

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against  appellant  Hoon, Varma and  Majumdar.   Though  the complaint  gives the impression as if the whole of the  said receipt  dated May 27, 1965 was alleged to be  a  fabricated document, Jaffray’s de-position before the Magistrate  makes clear  that according to him, the body of the  receipt and his  own endorsement thereon were genuine and that only  the portion said to be falsely fabricated was the writing on  it marked  ’3’  purporting  to be in  Varma’s  handwriting  but written out subsequently by Hoon with a view to give a false twist  to the said endorsement.  Jaffray’s case was that  on May  27,  1965,  when Varma came to  the  office  of  Turner Morrison  &  Co. he brought out 707 shares in  question  for Varma’s inspection, that those shares were never handed over by  him  or  "received"  by Varma, that  he  made  the  said endorsement  only to show that they were in  his  possession but that with a view to make out a false case of entrustment to  him  by  Varma, Hoon subsequently  wrote  out  the  said portion  marked ’3’.  Jaffray prayed in the  complaint  that the   Chief  Presidency  Magistrate  should  direct   police investigation  under  S.  156(3) of  the  Code  of  Criminal Procedure.    However,  on  January  25,  1966,  the   Chief Presidency  Magistrate  directed  judicial  inquiry  by  the Presidency Magistrate, 3rd Court, Calcutta.  The  Magistrate accordingly  held  an  inquiry in  which  Jaffray  gave,  as aforesaid,   his  deposition.   On  January  5,   1967   the Magistrate reported that a prima facie case was made out and process  should  issue.   The case together  with  the  said report went back to the Chief Presidency Magistrate, who  on the  record of evidence before him accepted the said  report and ordered issue of process but only against Hoon.  He also held that s. 195(1) (c) of the Code did not come in the  way of  Jaffray filing a private complaint as the  said  receipt alleged to be a false document was 84 produced  before the police during their investigation  into the  other  complaint  filed by  Hoon  against  Jaffray  and others, which investigation was not a proceeding before  any Magistrate.   Hoon  thereupon filed a  revision  application before the High Court for quashing the said order.  The only argument urged in the High Court on behalf of Hoon was  that the complaint by Jaffray was barred under s. 195 (1) (c)  of the Code, as the alleged forged document, i.e., the receipt, had  been  produced in a judicial inquiry.  The  High  Court turned  down  the contention holding that  the  receipt  was produced  by  Hoon in the course of inquiry  by  the  police ordered in his complaint under s. 156(3) of the Code and was then  seized by them.  There was thus, according to the  Hi& Court  no production of a fabricated document in a  judicial proceeding,  the  document  having been  long  ago  produced before  and seized by the police before a  judicial  inquiry was  held in that case.  The contention urged on  behalf  of Hoon having thus been rejected. the High Court dismissed the revision.   It  is this order which has been  challenged  in this appeal. Mr. Chagla for the appellant wanted to go into the merits of the  case, but we prevented him from doing so, as the  argu- ments  before  the  High Court were  confined  only  to  the question  of the applicability of s. 195(1)(c) of the  Code. Mr. Chagla thereupon urged two contentions : (1) that though it  was  true  that  Hoon  had  produced  the  said  receipt (document   2)   before  the  police  in   the   course   of investigation  by  them  ordered  by  the  Chief  Presidency Magistrate  under  s. 156(3) of the Code in  the  matter  of Hoon’s  complaint, those proceedings before the police  were part  and parcel of the proceedings before the Chief  Presi-

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dency  Magistrate  and therefore production of  the  receipt there  was production before the Magistrate; (2)) that  even before  that, the receipt had been produced before the  High Court and that having been done, it was the High Court alone who could cause a complaint to be filed under s. 195(1)  (c) of the Code and not Jaffray.  According to Mr. Chagla, after the  decree  in Mundra’s suit No. 600 of  1961  was  passed, Hungerford  took out execution proceedings claiming  therein that  Turner Morrison & Co. should be made to hand  over  to the   liquidators   of  Hungerford  the   said   707   share certificates  to enable them to satisfy the said  decree  by delivering all the 2,295 shares (including the 707 shares in dispute)  to  Mundra  against payment of  price  thereof  by Mundra.  Those proceedings were opposed by Turner Morrison & Co. on the ground that they did not lie against it as it was not  a party to that suit.  As ’against  that  contention, Hoon,  as  one  of the liquidators of  Hungerford,  filed  a counter-affidavit  claiming- entrustment of the said  shares to Jaffray by Varma and annexed to that affidavit copies  of the said receipt and the indemnity bond.  It was during  the hearing of that matter- that Hoon showed the 85 original of the receipt to counsel for Turner Morrison & Co. to  satisfy him that the copy annexed to his  affidavit  was genuine.  Counsel for the company thereupon inspected it and found the copy to be a correct copy.  It would thus  appear that what was produced ’before the High Court was a copy  of the  said receipt, the original not having  been  "produced" before,  the Court, but was shown to counsel to prevent  any contention  that the copy was not a correct or genuine  one. The  question,  therefore is whether on either  of  the  two grounds urged by Mr. ChagJa, Jaffray’s complaint can be said to be barred by s. 195 (1) (c) of the Code. The  relevant  part of sec. 195(1) provides no  court  shall shall take cognizance :               "(c)  of any offence described in section  463               or               punishableunder  section 471, section 475  or               section               476 of thesame  Code,  when such  offence  is               alleged to               have, beencommitted   by  a  party   to   any               proceeding in               any Court in respect of a document produced or               given  in evidence in such proceeding,  except               on the complaint in writing of such Court,  or               of  some  other Court to which such  Court  is               subordinate." Cl. (c) falls into two parts.  The first part provides  that the offence in respect of which the complaint in question is filed  must be one under s. 463 or 471 or 475 or 476 of  the Penal  Code.  The second part provides that such an  offence must  be  alleged to have been committed by a party  to  any proceeding in any court in respect of a document produced or given  in  evidence  in  such  proceeding.   If  both  those requirements are there, then no court is to take  cognizance of such an offence except on a complaint filed by such court or a court subordinate to it. On  the first limb, of Mr. Chagla’s argument,  the  question arises  whether  Hoon  can be said  to  have  "produced"  or tendered  in  evidence the said receipt  before,  the  Chief Presidency  Magistrate  ?  there is  no  question  that  the receipt  was  ever  tendered in evidence by  Hoon.   It  was produced  by  him  before the police in the  course  of  the investigation  by  them ordered by the Magistrate  under  s.

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156(3) of the Code and was then seized by them.  The receipt formed  part  of the record of The case which  went  to  the Chief Presidency Magistrate together with the report of  the police recommending discharge of Jaffray and others who were accused  in  that  case  of criminal  breach  of  trust  and cheating.  But the contention of Mr. Chagla was that  though the   receipt   was  not  tendered  in  evidence,   it   was nevertheless  ’produced’,  an expression which  has  a  wide connotation.  There Mr. Chagla is 86 right, for, a document can be said to have been produced  in a  court  when it is not only produced, for the  purpose  of being tendered in evidence, but also for some other purpose. [cf.  In re, Gopal Sidheshwar(1)] on the footing, therefore, that  Hoon ’produced’ the receipt, the question still  would be  whether he produced it in a proceeding before  a  court. Mr.  Chagla’s  argument  was  that  it  was  produced  in  a proceeding   before  the  Court  of  the  Chief   Presidency Magistrate ’because the investigation by the police was  one ordered  by  him under s. 156(3) of the Code  and  therefore that investigation was part of the proceedings in his Court. Such a proposition does not appear to be correct.   Firstly, the  police authorities have under ss. 154 and 156  of  the, Code  a  statutory right to investigate  into  a  cognizable offence  without  requiring  any sanction  from  a  judicial authority,  [cf. King Emperor v. Khwaja Nazir Ahmad(2)]  and even  the High Court has no inherent power under s. 561A  of the  Code to interfere with the exercise of  that  statutory power.  It is true that the Chief Presidency Magistrate  had under s. 156(3) ordered in the present case an investigation by  the police.  But once that was done, the inquiry by  the polic e  was  of the same nature and character  as  the  one which  the police had the power to conduct under  sub-secs. (1) and (2) of that section.  Indeed sub sec. (3)  expressly states  that an investigation ordered by a Magistrate  would be   an   investigation  "as  above-mentioned",   i.e.,   an investigation  made  by a police officer  in  his  statutory right  under sub-sections (1) and (2).  That being so,  once an  investigation by the police is_ordered by a  magistrate, the magistrate cannot place any limitations on or direct the officer conducting it as to how to conduct it.  Secondly, it is well settled that before a Magistrate can be said to have taken  cognizance of an offences under s. 190(1) (a) of  the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for  the  purpose  of  proceeding  under  s.  200  and   the provisions following that section.  But where he has applied his mind only for ordering an investigation under s.  156(3) or  issuing  a warrant for purposes  of  investigation.  he, cannot be said to have taken cognizance of the offence.  See R.  R. Chari v. U.P.(8); also Jamuna Singh v. Bhadai  Sah(4) The  Chief  Presidency  Magistrate  having  not  even  taken cognizance  of the offence but having applied his  mind  for the  purpose only of directing a police investigation  under s.  156(3),  no proceeding could be said to  have  commenced before him, of which the inquiry by the police could be said to be part and parcel.  Further, it cannot be said that  the police officer- acting under s. 156(3) was a delegate of the Chief Presidency Magistrate or that the (1)  [1907]  9 Bom.  L.R. 735. (2) 71 I.A. 203.  (3)  [1951] S.C.R. 312, 320-21 (4) [1964] 5 S.C.R. 37. 87 investigation  by him was an investigation ’by or on  behalf of  the, Magistrate.  Production of the receipt by  Hoon  in

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the  course  of  such an  investigation  was  therefore  not production  in  a  proceeding before  the  Chief  Presidency Magistrate  so as to attract the ban under s. 195  (1)  (c). The first limb of Mr. Chagla’s argument, therefore cannot be accepted. In  support of the second limb of his argument,  Mr.  Chagla relied  on the affidavit of S. K. Ganguli, the solicitor  of Hungerford, dated March 26, 1969, according to which  during the  course of the said execution proceedings taken  out  by Hungertord he had produced in the High Court the receipt and the said indemnity bond for inspection by counsel of  Mundra and  Turner Morrison & Co. in the presence of  Rodewald  who also,  along  with  counsel, inspected  the  two  documents. Obviously,  the originals of the receipt and the  bond  were produced  in  the Court to satisfy counsel  that  copies  of these  documents  annexed  to the  affidavit  of  Hungerford tallied  with  the originals and were  correct.   Since  the copies  were  used  as  annexures  to  the  affidavit,  they certainly  can  be  said  to  have  been  produced  in   the proceedings  before the Court.  But it cannot be  said  that their  originals were produced in those  proceedings,  since they  were only shown to counsel for the limited purpose  of satisfying them that the copies were correct copies.  It was nobody’s  case that those copies were fabricated  documents. Jaffray’s case was that it was part of the original  receipt which  was  fabricated  rendering the whole of  it  a  false document.   Apart from this difficulty, the offence  charged against Hoon in Jaffray’s complaint was not the user of  the receipt  in the proceedings before the High Court,  but  its production  and  user by Hoon during  the  investigation  of Hoon’s  complaint  by  the police.   To  that  Mr.  Chagla’s argument  was that once a document alleged to be forged  is used in any proceeding before any court at any time, s.  195 (1)  (c)  would  at once be attracted and  would  be  a  bar against a complaint by a party complaining of its fraudulent user  in any later proceeding.  Such a proposition,  in  the first place, is not warranted by the language of cl. (c)  of s. 195(1).  That clause in clear terms says that in  respect of  any of the offences enumerated there, no cognizance  can be taken of a private complaint when such offence is said to have been committed by a party to a proceeding in a court in respect  of a document produced or tendered in  evidence  in that  proceeding extent on a complaint by such  court.   The words "such court" mean the very court before which a  party to  a proceeding in that court has produced or  tendered  in evidence  a  document  in respect of which  the  offence  is alleged  to have been committed.  Cl. (c), in  other  words, means  that  it  is  that court  before  which  there  is  a proceeding and a party to such a proceeding is said to have 88 committed an offence in respect of a document produced  or tendered in evidence by him, on whose complaint the  offence can  be taken cognizance of.  The object and purpose  of  s. 195(1)(c) is that it is the court before which an offence is alleged to have been committed in respect of a document pro- duced  in  a  proceeding before it ’by.,  a  party  to  such proceeding,  which  should  file  or cause  to  be  filed  a complaint and not a private party. Assuming,  however,  that Hoon  had  produced-,the  receipt, alleged  to be a forged document, in the  proceeding  before the High Court, a complaint in respect of that offence by or at the instance of the High Court could be taken cognizance, of by the Magistrate.  But no one moved the High Court to do so  in  those  proceedings and so such  complaint  was  ever filed.   In  the  second place, if we were  to  accept  Mr.,

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Chagla’s   proposition,   it   would   have   far   reaching consequences  which the legislature while  en:acting  clause (c) could never have contemplated. if the High ,Court  alone could have filed or caused to be filed a complaint  be-cause the  document was at one time produced before, it,  then  no other  court  where it is produced subsequently can  file  a complaint  even  if  the  forged  document  is  produced  or tendered in evidence in a proceeding before it.  If the High Court,  in  the  case  stated above,  were  to  consider  it inexpedient  to  file a complaint, a party to  a  proceeding before  the High Court can go on producing ad seriatim  that document  in  several  subsequent  proceedings  in   several different  courts  with complete impunity because  the  High Court  has in respect of the proceeding before it  refrained from  causing  a complaint to be filed against  that  party. Surely,  such  a  consequence could  never  have  been  con- templated when cl. (c) was enacted.  The proper construction of  that  clause,  therefore,  is that when  a  party  to  a proceeding before any court produces or tenders in  evidence a document in respect of which an offence, e.g., s. 471 read with  s. 467, is alleged to have been committed, it is  that court  before which the document is produced or tendered  in evidence  which  can  file a  complaint  regarding  such  an offence and a magistrate cannot take cognizance of such  an offence  except  upon a complaint by such court or  a  court subordinate  to  it.  On this construction  ,the  contention urged by Mr. Chagla must fail. In the result, the appeal fails and is dismissed. KHANNA, J.-I agree so far as criminal appeal No. 213 of 1968 is concerned. 1, however, express my inability to agree with the  proposed judgment in criminal appeal No. 214  of  1968. In my. opinion, both the appeals should be dismissed. 89 Nirmaljit Singh Hoon appellant is a co-liquidator along with S. Varma and Frank Goldstein of Hungerford Investment  Trust Limited (in voluntary liquidation).  On January 5, 1966  the appellant filed a complaint under sections 120B, 406 and 420 Indian   Penal  Code  in  the  court  of  Chief   Presidency Magistrate  Calcutta against four persons.  Out of them  the first  two accused, D. M. Jaffray and C. H.  Rodewald,  were the  directors  of Turner Morrison & Co. Ltd., while  A.  J. Hormusji  was  the secretary of that  company.   The  fourth accused  was Haridas Mundhra.  According to the  appellant’s allegation  Hungerford  Investment  Trust  Limited  was  the registered  holder  of  51  per cent  of  shares  of  Turner Morrison  & Co. Ltd.  Haridas Mundhra accused had option  to purchase those shares for Rs. 86,60.000. On May 27, 1965  S. Varma, one of the liquidators of Hungerford Investment Trust Limited,  was  stated to have received  707  ordinary  share scrips, the details of which were given, of Turner  Morrison & Co. Ltd. from the directors of Turner Morrison & Co.  Ltd. According  to the, appellant, Varma preferred not  to  carry those  share scrips with him and entrusted them with.  blank transfer  deeds to Jaffray accused for safe custody.   Varma thereafter  asked  the  solicitors  of  his  Company,   M/s. Sanderson  &  Morgan, to take delivery of the  share  scrips from  Jaffray,  but JaffTay accused on one  pretext  or  the other  declined  to  give the shares.  Jaffray  accused  was further  stated  to have in violation of his  trust  and  in conspiracy with the other accused disposed of 707 shares  by delivering them illegally to Turner Morrison & Co. Ltd. with the  object  of dishonestly converting them to the  use  and benefit  of  the  accused persons and also with  a  view  to defeat  the appellant’s right to recover Rs. 86,60,000  from Haridas Mundhra accused.

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The above complaint was sent by the Chief Presidency  Magis- trate to the police for investigation under sub-section  (3) of  section  156  of the Code of  Criminal  Procedure.   The police registered a case and after investigation submitted a report that it was a false case.  The complainant thereafter filed objections against the police report before the  Chief Presidency  Magistrate  on May 7, 1966.  The  complaint  was thereafter sent on June 18, 1966 to a Presidency  Magistrate for  judicial  enquiry.  In the course of that  enquiry  the appellant examined four witnesses.  Sachindra Mohan (PW  1), P. N. Chowdhry (PW 2), Hoon 90 appellant  (PW 3) and N. K. Majumdar (PW 4).   Affidavit  of Varma,  who  was  in the United  Kingdom,  was  also  filed. Reliance  was  also placed upon receipt dated May  27,  1965 which readsas follows : Document-2 Document  2/1.   Recived from Turner Morrison  ;  Co.  Ltd., Calcutta  the  following Shares Certificates   covering  707 Ordinary Shares of Turner Morrison & Co. Ltd., 1.   Share  Certificate  No. 19 fir 3 ordinary  shares  Nos. 1452, 1593 & 1594. 2.   Share  Certificate No. 28 for 695 ordinary shares  Nos. 1601-2295. 3    Share  Certificate  No. 29 for 3 ordinary  shares  Nos. 1455. 1597 & 1598. 4.   Share  Certificate  No. 75 for 3 ordinary  shares  Nos. 1453, 1595 & 1596 5.   Share  Certificate  ND. 76 for 3  ordinary  share  Nos. 1454, 1599 & 1600 Sd/- S. Varma S. VARMA) Liquidator Hungerford Investment Trust Ltd. Shares with me. Sd/- D. N. Jaffray." It  may be stated that the above receipt also  contains  the following words :               "Dear Mr. Jaffray,               I  do not want to carry these with me.   Hence               leaving  meantime  with  you  personally   for               delivering to me later." These words, according to a complaint filed by Jaffray  were inserted subsequently and a criminal case under section  474 Indian Penal Code is pending against Hoon appellant on  that account.   Criminal appeal No. 213 filed by Hoon in  respect of  that prosecution has been disposed of separately  today. Reliance  by  Hoon  was  also  placed  upon  the   following indemnity bond               "     Indemnity & Warranty Bond dated 27-5 65               INDEMNITY & WARRANTY               In  consideration  of  handing  over  the  707               shares  of  Turner Morrison &  Co.  Ltd.  with               blank transfers to Sanderson & Morgan, as  per               original  letter  of Hopwood, Hilbery  &  Co.,               dated  the 9th December 1964  the  Liquidators               hereby  indemnify Turner Morrison & Co.  Ltd.,               Calcutta  that they will have no objection  to               be  enjoined with the old Liquidators and  the               Executors  of  the deceased  Turners  for  the               claim of approximately Rs. 53,00,000/- (Rupees               fifty  three  lakhs), which has been  paid  by               Turner Morrison & Co. Ltd., Calcutta               91               by  way  of taxes for the Turner  family,  and

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             furthermore the new Liquidators undertake that               they  will assist Turner Morrison & Co.  Ltd.,               Calcutta in every way in the recovery of these               amounts from the Estates of the Turner  family               and   the   old  Liquidators   of   Hungerford               Investment Trust Ltd.               The  new  Liquidators further  guarantee  that               they  will cause these shares to  be  produced               whenever  required  in terms of Suit  600  and               without jeopardising the rights of Mr. Haridas               Mundhra arising out of that decree.               Lastly,   the   Liquidators   indemnify    the               Directors  of  Turner  Morrison  &  Co.               Ltd.,  Calcutta  against  any  claims  of  tax               authorities or any Government body and  others               should  it arise by virtue of the delivery  of               these shares by them.               (Sd.) ILLEGIBLE               Liquidators.               Hungerford Investment Trust Ltd."               Calcutta,               27th July, 1965               According  to the  complainant-appellant,  the               above   indemnity  bond  also   contains   the               following endorsement of Jaffray               "Accepted               For & On Behalf of Turner Morrison & Co. Ltd.               Sd/- D. M. Jaffray               Directors               27-5-65 The  Presidency  Magistrate in his report dated  January  5, 1966  observed that no prima facie case of  entrustment  had been  made out, Reference was made to the fact  that  Varma, who  was  the  central figure, had not  made  any  statement during the course of enquiry.  Varma’s affidavit was held to be  not admissible.  The Chief Presidency Magistrate  agreed with the Presidency Magistrate and dismissed the  complaint. In  revision the High Court declined to interfere  with  the order  of  the Chief Presidency Magistrate.   Reference  was made by the High Court also ;to the non-examination of Varma during the judicial enquiry. Mr.  Chagla  has contended in this Court on  behalf  of  the appellant,  that there is prima faice case to show that  707 ,hare scripts were handed over to Varma on May 27, 1965  and thereafter were entrusted by Varma to Jaffray.  The  refusal of Jaffray 92 to  make over those shares to the liquidators of  Hungerford Investment  Trust Limited or their Solicitors, according  to Mr.  Chagla, amounts to criminal breach of trust.  The  said offence,  it  is staated, has been committed by  Jaffray  in conspiracy with the other accused.  The above stand has been controverted by Mr. Mukherjee on behalf of the State of West Bengal  as well as by Mr. Chatterjee on behalf  of  Jaffray, Rodewald and Hormasji respondents. After  giving the matter my consideration, I am of the  view that  no  prima  facie case for  entrustment  of  the  share scripts in question to Jaffray accused has been proved. It is common case of the parties that the 707 share  scripts question  were before May 27, 1965 in the custody of  Turner Morrison  & Co. Ltd.  The case of the appellant is  that  on morning of May 27, 1965 Varma accompanied by Majumdar(PW  4) met  Jaffray and Rodewald and asked for the delivery of  707 share scrips.  Those 707 share scrips were then handed ,over to, Varma by Rodewald accused.  Varma thereupon signed typed

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receipt  reproduced  above.   As  Varma  had  some  luncheon appointment  he did not want to carry the share scrips  with himself.   Share  scrips were thereupon left  with  Jaffray. Jaffray then wrote on the receipt the words "Shares with me" and put his signature underneath.  It is further the case of the  appellant that the, indemnity bond dated May  27,  1965 was also executed by Varma and Hoon petitioner and the  same was  accepted  by  Jaffray accused.  In order  to  show  the entrustment of shares to Jaffray, Mr. Chagla has relied upon the  affidavit of Varma.  Varma, as stated earlier, did  not appear in the course of the judicial enquiry which was  held by  the Presidency Magistrate.  He, however, chose  to  send his  affidavit  from  United  Kingdom.   The  courts   below declined  to take that affidavit into consideration and.  in my  opinion, they were justified in doing so.  According  to section 510A of the Code of Criminal Procedure, the evidence ,of  any person whose evidence is of a formal character  may be given  by  affidavit  and may,  subject  to all  just exceptions,  be  read in evidence in any inquiry,  trial  or other  proceeding  under  this  ,Code.   This  section   was inserted by the Code of Criminal Procedure Amendment Act (26 of  1955)  and its object is to accelerate the  disposal  of cases.   Provision is accordingly made for the filing of  an affidavit  of  a  witness  whose evidence  is  of  a  formal character.  If, however, the evidence of a person is not  of a formal character, but goes to the very root of the  matter as  in  the present case, no resort can  be  made  to  the provisions of the above section.  It would appear from  the resume of facts given above ’that the case of the petitioner is that the share,, scrips in question were before May  27, 1965 in the custody of Turner Morrison 93 Co.  and were on the morning of May 27, 1965 handed over  by Rodewald to Varma when Varma met Jaffray and Rodewald in the office  of Turner Morrison & Co. It is further  stated  that Verma  because of a luncheon appointment left  those  shares with Jaffray.  Varma, in the circumstances, would have  been the most important witness to depose, about the handing over of  the share scrips to him by Rodewald and the  entrustment of  those  share scrips immediately thereafter  to  Jaffray. Verma was not examined during the course of enquiry and this fact  resulted in serious infirmity in the evidence  adduced by the petitioner.  Resort was accordingly had to the filing of the affidavit of Verma.  As the evidence of Varma was not of  a formal character, his affidavit could plainly  be  not admitted in evidence. Reliance has then been placed by Mr. Chagla on the statement of Majumdar PW who is alleged to have accompanied Varma when the latter not Jaffray and Rodewald in the office of Turner- Morrison  & Co. on the morning of May 27, 1965.  The  state- ment of Majumdar reads as under               "I  know Mr. Hoon and Mr. Varma, and also  Mr.               Jaffray and also other accused persons.               On 27-5-65 I went to the office of Mr.  Turner               Morrison   with  Mr.  Varma.    Varma   wanted               delivery  of 707 shares from accused  Nos.   1               and  2. Accused No. 1 agreed to  deliver  them               back  if  an indemnity bond  was  signed.   He               signed  a  bond.  He wanted  also  Mr.  Hoon’s               signature on that bond.  Document No. 5 is the               copy of that bond.  Varma also signed document               2/ 1. He did not take them.  He left them with               accused  No. I to be sent through Sanderson  &               Morgan.   Accused  No. I wrote  document  2/2.               Mr.  Varma writes document No. 2/3.  Mr.  Hoon

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             also signed the document No. 5 as we  informed               him of accused No. 1’s request." The  above statement of Majumdar, in my opinion, belies  the stand  taken  by the appellant that the  share  scrips  were delivered  to  Varma  and he thereafter  entrusted  them  to Jaffray.   According to the statement of  Majumdar,  Jaffray agreed to deliver the share scrips to Varma if an  indemnity bond  was  executed.  Varma then signed a bond  but  Jaffray wanted the signature of Hoon also on the bond.  As Hoon was, admittedly  not  present  with  Verma  at  that  time,   the condition  imposed by Jaffray for handing over of the  share scrips  to Varma was obviously not satisfied at  that  time. Majumdar has accordingly deposed that Varma did not take the share scrips and left them with Jaffray accused.  It may  be that the evidence of Majumdar may show that Jaffray 94 was  guilty of not honouring his assurance in so far  as  he declined  to send share scrips to Sanderson &  Morgan  after the  indemnity  bond  had been signed by  Hoon,  but  it  is difficult  to hold on tile basis of statement  of  Majumdar that  the share scrips in question were first  delivered  by Jaffray  and Rodewald accused to Varma and  were  thereafter entrusted by Varma to Jaffray. So far as P. R. Chowdhry (PW 2) is concerned., his statement ,does not reveal entrustment of share scrips.  According  to this witness, he asked for 707 share scrips from affray  but the  latter declined to hand over those share scrips to  the witness  and  stated ,that he would send  them  through  the Solicitor.   The demand of share scrips by the  witness  and the  promise  of  Jaffray to send the share  scrips  to  the Solicitor  would  not  show  that  there  had  been  earlier entrustment  of  the share scrips to Jaffray.  On  the  con- trary,  the  demand could have been made  even  without  the alleged  entrustment of the share scrips.  The same  remarks also  apply  to  letter  dated May 27,  1965  sent  by  M/s. Sanderson & Morgan to Jaffray.  In that letter a demand  was made  for  707  share  scrips  and  it  was  mentioned  that indemnity  bond had been executed on that account.  What  is significant, however, is that there was no reference in that letter to, any entrustment of the share scrips. Reference  has been made by, Mr. Chagla to civil  litigation in  respect  of the share scrips.  The said  litigation  had admittedly  nothing  to do with the alleged  entrustment  of share scrips in ,question with which we are concerned in the present case.  No help can consequently be derived from  the decision in the civil case. Our attention was also invited to the statement dated Novem- ber  14, 1966 made by Jaffray in his case against  Hoon  and others under section 474 Indian Penal Code.  It is, however, open  to question whether the said statement of Jaffray  can be  utilised in this case when that statement is not a  part of  the  record of this case.  No process has  so  far  been issued to Jaffray and his statement has not been recorded in this  case.   Assuming, for the sake of argument,  that  the statement of Jaffray in the other case can be referred to in the  present case, the statement can be of no avail  to  the appellant because there is no indication in the statement of any entrustment of the share scrips. The  next  piece of evidence relied upon by  Mr.  Chagla  is receipt dated May 27, 1965 which has been reproduced  above. According  to this document, Varma issued the receipt  about his  having received the 707 share scrips in question.   The document  also bears the writing of Jaffray that the  shares were with 95

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him.  If shares remained with Jaffray, the occasion of Varma issuing  a  receipt  in respect of those  shares  could  not arise.  The receipt in question is of an ambiguous character and, in the absence of any oral evidence, it is difficult to infer  from  the receipt that the shares  in  question  were first  received  by Varma and thereafter were  entrusted  by Varma to Jaffray.  The best person to explain what seems  to be  an inconsistency in the receipt between the  writing  of Varma  and  the endorsement of Jaffray  was  Varma  himself. Varma, as stated above, was not examined as a witness.   The other  person who was present at that time was Majumdar  and the  statement of Majumdar goes against the stand  taken  by the  appellant about the delivery of share scrips  to  Varma and  the  entrustment of those share  scrips  thereafter  to Jaffray. Lastly,  reliance has been placed upon indemnity bond  dated May  27,  1965 which has been reproduced  above.   There  is nothing in the indemnity bond to show that the share  scrips were  handed over to Varma.  On the contrary, the  indemnity bond according to its plain language was executed because of the.  contemplated  handing  over of  the  share  scrips  to Sanderson  &  Morgan.  It seems that it was because  of  the non-mention of the handing over of the share scrips to Varma in  the  indemnity bond that there was no reference  to  the said bond in the complaint filed by the appellant. An enquiry or investigation is ordered under section 202  of the Code of Criminal Procedure by a magistrate on receipt of a  complaint  for the purpose of ascertaining the  truth  or falsehood  of the complaint.  If the magistrate before  whom the  complaint is made or to whom it has  been  transferred, after considering the statement on oath of. the  complainant and his witnesses and the result of enquiry or investigation under  section  202  is  of the opinion  that  there  is  no sufficient  cause for proceeding, he may for reasons  to  be recorded  briefly,  dismiss  the  complaint.   If,  on   the contrary, the magistrate taking cognizance of the offence is of   the.  opinion  that  there  is  sufficient  cause   for proceeding,  he should issue process against the accused  in accordance with section 204 of the Code.  It may be that the evidence which is required to be adduced by the  complainant at that stage may not be sufficient for recording a  finding of   conviction,  but  that  fact  would  not  absolve   the complainant  who  wants the magistrate to  issue  a  process against  the  accused  person  from  leading  some  credible evidence  as  may  prima facie show the  commission  of  the offence. In  the  present case the Presidency Magistrate,  the  Chief Presidency Magistrate and the, High Court took the view that there  was  no  sufficient  cause  for  proceeding  on   the complaint 96 filed  by  the appellant.  I find no  sufficient  ground  to interfere   in  this  appeal  under  section  136   of   the Constitution with the said concurrent finding.  No  credible material  has, in my opinion, been brought on record by  the appellant as may show prima facie that there was entrustment of the share scrips in question to the accused. The appeal consequently fails and is dismissed.                            ORDER In view of the majority judgment, the appeal is allowed  and the High Court’s judgment and order is set aside.  We direct the Chief Presidency Magistrate to issue the process and  to proceed with the same. V.P.S. 97

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