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PETITIONER: RAJENDRAPAUL RAMASARAN DASS SHARMA

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT23/02/1973

BENCH: DUA, I.D. BENCH: DUA, I.D. ALAGIRISWAMI, A. VAIDYIALINGAM, C.A.

CITATION:  1973 AIR 1180            1973 SCR  (3) 543  1973 SCC  (4)  31  CITATOR INFO :  RF         1973 SC1222  (11)

ACT: Whether   High  Court  should  give  a  speaking  order   in dismissing an appeal or merely dismiss the appeal in limine.

HEADNOTE: The  appellant  was  running a  Octroi  Clearing  Agency  at ’Mulund Check-Post’ in the State of Maharashtra.  He used to attend  to certain transactions of Montgomery Transport  Co. also.   On December 16, 1968, a truck of the said  transport company  arrived  at  the Check-Post with a  machine  to  be delivered  to  M/s.   Imperial  Tobacco  Co.  The  appellant informed the Manager of the Transport Company to arrange for the  payment  of  Octroi which amounted  to  more  than  Rs. 8,000/-.  Accordingly, a sum of Rs. 8,196/- was handed  over to the appellant in the presence of the Driver of the truck. It  was found out after investigation that the  receipt  for the  payment of Octroi held by the Imperial Tobacco Co.  was not  genuine and on a complaint lodged by the  Company,  the appellant was arrested and committed for trial to the  Court of  Sessions, under s. 467, 471 read with s. 467 and s.  420 of I.P.C. The Trial Court convicted the appellant for an offence under s. 471 read with s. 467 1. P. C. and for an offence under s. 420  1. P. C. The appeal to the High Court was dismissed  in limine  with the word "dismissed".  The point raised  before this  Court  was  whether the High Court  was  justified  in dismissing  the appeal in limine with one word  "dismissed", without  making a speaking order indicating the reasons  for dismissal.   Remanding  the  case  to  the  High  Court  for rehearing. HELD  : (i) The importance of the opinion of the High  Court on arguable points requiring consideration in appeal in that Court when questions of fact or law are open to challenge by the appellant was emphasised more than 20 years ago by  this Court  in  Mustaq  Hussain v. The State  of  Bombay,  [1953] S.C.R.  809.   Since then, in a series  of  decisions,  this Court  has  consistently  drawn the attention  of  the  High Courts to the desirability of giving an indication of  their views  on the points raised in arguable cases in  accordance

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with the legal position enunciated by this Court. [552-AB.] (ii) In  K.  K.--Jain v. State of Maharashtra,  A.I.R.  1973 S.C.  243  it was reiterated that reasons  before  the  High Court  for  dismissing the appeal, if recorded, would  be  a valuable  assistance to this Court in finally dismissing  of the  appeal on merits.  Another advantage of recording  such reasons  is, that the accused-appellant, who may not  always be  present  in the court, would have  the  satisfaction  of knowing  from  the judgment that  the  points  appropriately arising for consideration in his case, were actually  argued and duly considered by this High Court while dismissing  his appeal.   In the prevent case, since the High Court did  not record its reasons for dismissing the appeal, this court has no  option  but  to remand the case to the  High  Court  for rehearing  and  deciding the appeal  after  considering  the points  raised and recording its reasons in accordance  with law. [552 FG & 553A] 549 Mustaq Hussain v. State of Bombay, [1953] S.C.R. 809, and K. K.  Jain  v.  State of Maharashtra, A.I.R.  1973  S.C.  243, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 264  of 1972. Appeal  by special leave from the judgment and  order  dated March 6, 1972 of the Bombay High Court at Bombay in Cr.   A. No. 164 of 1972. M.  N. Sharma, for the appellant. S. B. Wad and Rine Sachthey, for the respondent. The Judgment of the Court was delivered by DUA,  J.-The appellant in this appeal by special  leave  was tried  in the court of Session for Greater Bombay at  Bombay for offences under s. 467, under s. 471 read with s. 467 and under  S.  420,  I.P.C. According  to  the  prosecution  the appellant  was running an octroi clearing agency  under  the name  and style of "National Octroi Clearing Agency" at  the Mulund   check-post.    He  used  to   attend   to   certain transactions  relating  to the transport companies,  one  of those companies being the Montgomery Transport Company.   On December  16, 1962 a truck belonging to the  said  transport company  bearing  no.  MPR 2147 arrived  at  the  check-post carrying  a  Depleix  Machine  to  be  delivered  to  Messrs Imperial  Tobacco Company.  There were two drivers  and  one cleaner  in  the  truck.  On being approached  by  them  the appellant  telephoned  to manager Bakshi  of  the  Transport Company to arrange for the payment of octroi which  amounted to more than Rs. 8,000/-.  The Manager, Bakshi and Director, Inderjit  Singh  went to the Imperial  Tobacco  Company  the following day and after getting Rs. 8,196/- /for the  octroi reached  the Mulund Check-post.  The amount was handed  over to  the appellant in the presence of the  driver.   Actually only  Rs.  81-80/-  were required for the  octroi  with  the result  that  Rs.  16/- were paid back  to  Messrs  Imperial Tobacco   Company  by  means  of  a  cheque.    During   the investigation  of  another case arising out  of  an  alleged forged receipt relating to octroi in respect of some imports by  Messrs Pure Drinks Private.Ltd., it came to  light  that proper  octroi  had not been- paid on December 17,  1968  in respect of the transaction in question in the present  case. The Assistant Assessor and Collector, Shri Karkhanis,  after sending  his superintendent Govind Charan to, the office  of Messrs Imperial Tobacco Company he himself also visited  the

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Company’s office and they both felt that the receipt for the payment of octroi held by the said Company was not  genuine. Having  failed to trace the necessary relevant documents  in the  office  files Shri Karkhanis lodged  the  complaint  in February, 1969 and a case 3-L761Sup.  CI/73 550 was  registered After preliminary enquiry under  Ch.   XVIII Cr. P.C. the  appellant was committed for trial to the court of  Session.   According to,the trial  court  the  following points arose for determination : 1.   Whether  it is proved that the receipt, Article A is  a forged document ? 2.   Whether it is proved that it is the accused who  forged that receipt with intent to commit fraud ? 3.   Whether it is proved that the accused used this receipt as genuine knowing it to be forged ? 4.   Whether  it  is  proved  that  he  cheated  the  Bombay Municipal Corporation, as alleged ? 5.   Whether  it  is  proved that the  accused  cheated  the Imperial Tobacco Co. of India Ltd., as alleged ?" The conclusions of the trial court on these points were  "1. "1.    In the affirmative. 2.   Not proved. 3.   In the affirmative, 4.   In the affirmative. 5.   Not proved." The  evidence  in  this  case  is  mainly,  if  not  wholly, circumstantial   and  about  20  witnesses   were   examined including  a handwriting expert.  The trial court felt  that the case required evaluation of the evidence of Bakshi (P.W. 4),  Inderjit Singh (P.W. 18) and Handwriting  Expert  (P.W. 17).   Driver  Balwant Singh was not examined in  the  case. The trial court in a lengthy judgment exhaustively discussed the evidence of these witnesses.  It did not place  implicit reliance  either  on Bakshi (P.W. 4) or  on  Inderjit  Singh (P.W.  18) as, indeed in the testimony of ’both of them  the trial  court  found partly reliable  and  partly  unreliable statements.   The court did not feel inclined to  hold  that their evidence was wholly unreliable.  On evaluation of  the evidence of the Handwriting Expert the trial court felt that the  receipt  in question could not necessarily be  held  to have been forged by the appellant.  After this’  observation follows the following passage in the judgment               "I  do not, however, feel that this  earns  an               acquittal for him The direct charge  regarding               the  forgery could be taken as not  proved  we               will have however to weigh the other  evidence               for finding out whether he could have used the               document  which is necessarily a fogged  docu-               ment, as a genuine document.  For this purpose               we will have to appreciate the evidence of the               two witnesses                551               about whom I have spoken quite a long time and               we  have  also to appreciate the  interval  of               time.   What  exactly the accused  did  within               that  half an hour when he took the money  and               returned,   will   have   to   be    surmised,               particularly  in  the absence  of  categorical               evidence showing that the disputed receipt  is               executed by him.  The evidence shows, it is  a               forged  receipt.   It is not prepared  at  the               counter.  We may not be sure in finding out as               to who wrote it.  The accused may-have had his

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             associates  it he himself has not written  it.               Considering  the  way in  which  counters  are               stated  to be working, considering the  amount               involved  and the short time ’limit  when  the               accused  reappeared legitimate payment  across               the  counter will have to be ruled out.   That               is  not  even  suggested  on  behalf  of   the               accused.   He may have his own  collaborators.               If we accept the version, which I do, then  it               was this receipt which was in the hands of the               accused that was given over to the driver  and               from there onwards it reached the firm  Messrs               Imperial  Tobacco Co. of India Ltd.   I  feel,               the  accused ought to be supposed to be  aware               that  the  real payment was made and  what  he               carried could not be the real receipt.  It  is               for  this  reason that I am feeling  that  the               charge of using a forged receipt knowing it to               be forged could be brought home to him." The  trial  court  thereafter dealt  with  the,  charges  of cheating and ultimately convicted the appellant for  offence under ss. 471 read with 467, I.P.C. and for an offence under s.  420, I.P.C. Under the former he was sentenced  to  five, years’  rigorous imprisonment and a fine of Rs.  500/-  with six  months’  further  rigorous  imprisonment  in  case   of default.   Under  s.  420  he  was  sentenced  to   rigorous imprisonment for two years.  The substantive sentences  were directed to be concurrent. The  appeal to the High Court was dismissed in  limine  with one word "Dismissed". Before  us  on appeal by special leave the short  point  but one of  vital importance to the  appellant  requiring  our decision  is  whether the High Court was  justified  on  the facts  and  circumstances of this  case  in  unceremoniously dismissing  the appeal in limine with one  word  "Dismissed" without  making a speaking order indicating the reasons  for the  dismissal.  The facts briefly stated by us and a  close study  of  the  lengthy judgment of the  trial  court  quite clearly  show  that the appeal in the High Court  did  raise points   which  were  not  only  arguable,  but  were   also substantial   requiring   critical  scrutiny   and   serious appraisal and evaluation of the prosecution evidence and the circumstances of the case.  The impor- 552 tance  of the opinion of the High Court on  arguable  points requiring  consideration  on  appeal  in  that  court   when questions  of  fact  or law are open  to  challenge  by  the appellant  was  emphasised more than 20 years  ago  by  this Court  in  Mushtak Hussein v. The State  of  Bombay(1)  when Mahajan J., (as he then was) observed at p. 820 :               "With great respect we are however constrained               to observe that it was not right for the  High               Court  to have dismissed the appeal  preferred               by  the appellant to that court summarily,  as               it certainly raised some arguable points which               required  consideration  though  we  have  not               thought  it fit to deal with all of them.   In               cases  which  prima facie  raise  no  arguable               issue  that course is, of  course,  justified,               but  this  court  would appreciate  it  if  in               arguable  cases  the summary  rejection  order               gives some indication of the views of the High               Court  on  the  points  raised.   Without  the               opinion  of the High Court on such  points  in               special  leave petitions under article 136  of

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             the  Constitution this Court  sometimes  feels               embarrassed  if  it  has to  deal  with  those               matters, without the benefit of that opinion." Since then in a series of decisions (quite a number of  them reported and several unreported) this Court has consistently drawn  the  attention  of the High  Courts  to  the  eminent desirability  of giving an indication of their views on  the points raised in arguable cases in accordance with the legal position enunciated by this Court.  Such a course is  normal in  cases which raise fairly arguable questions of  fact  or law.  In one of the latest decisions of this Court in K.  K. Jain  v.  State  of  Maharashtra(2)  some  of  the   earlier decisions were again noticed and it was considered necessary to  repeat the emphasis laid on the necessity  of  recording reasons  by  the High Court for dismissing  appeals  raising questions which cannot be considered to be unsubstantial  or not  arguable.   In that decision it was  reiterated,  inter alia,  that  reasons  prevailing with  the  High  Court  for dismissing  the  appeal,  if recorded, would  have  been  of valuable  assistance to this Court in finally  disposing  of the  appeal on merits.  Another advantage of recording  such reasons. is that the accused-appellant who may not always be present in court would have the satisfaction of knowing from the  judgment  that  the points  appropriately  arising  for consideration  in  his case were actually  argued  and  only considered  by the High Court while dismissing  his  appeal. This  would, inter alia, tend to promote confidence  of  the parties  concerned in our judicial process. in  the  present case had the High Court recorded its reasons for  dismissing the  appeal  it would have better  enabled  the  appellant’s lawyer to consider the advisibility of appealing (1) [1953] S.C.R. 809. (2) A.I.R. 1973 S.C. 243. 553 under  Art.  136 of the Constitution and  after  filing  the appeal  would have afforded valuable assistance both to  the counsel  appearing  in  this Court and to us  in  the  final disposal  of  the appeal without feeling  the  necessity  of remanding  the case to the High Court for  re-hearing.   The remand  no doubt must result in further delay in  the  final disposal  of the appellant’s appeal in the High  Court,  and this  indeed  is  regrettable.  But in the  absence  of  the opinion of the High Court which that Court was under the law expected  to record we are left guessing about the  line  of reasoning   the   High  Court  would  have   adopted   after appropriate  scrutiny  of the evidence on the  record.   The appellant  is  entitled  to have a proper  decision  on  the points  arising  in  his appeal by the  High  Court  on  due appraisal of the evidence in accordance with law.  The legal position  on the point in question has been  authoritatively settled  and  declared by this Court and the same  has  been frequently reiterated in its decisions.  The law reports are so  full  of  them  that it appears to  us  to  be  somewhat surprising  that the counsel appearing in the appeal in  the High  Court  Should have been unaware of it.   It,  however, does seem that the attention of the High Court was not drawn to these decisions, for had that Court been apprised of  the law  as  authoritatively  declared  by  this  Court,  it  is inconceivable ,that the present appeal would still have been dismissed  without indicating the reasons in support of  it. Had  the High Court recorded reasons the delay  necessitated by  this  remand  could  have  been  avoided.   But  in  the circumstances we have no option but, to allow the appeal and remand’  the  case  to  the High  Court  for  rehearing  and deciding the appeal after considering the points raised  and

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recording its reasons in accordance with law.  We have taken care  not to express any opinion on the merits of  the  case either  way.   It  is hoped that this appeal  would  now  be disposed  of  by ,the High Court expeditiously  and  without avoidable delay. S. C.                              Appeal allowed. 554