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PETITIONER: ABINASH CHANDRA BOSE

       Vs.

RESPONDENT: BIMAL CHANDRA BOSE

DATE OF JUDGMENT: 03/08/1962

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. SHAH, J.C.

CITATION:  1963 AIR  316            1963 SCR  (3) 564  CITATOR INFO :  D          1965 SC1887  (3,5,7 ETC.)  D          1966 SC 356  (6)

ACT: Criminal  Breach of Trust-Prosecution of lawyer  by  client- Hand-writing expert neither called nor examined-Acquittal by trial Magistrate-Retrial and examination of expert  directed by High Court on appeal-Propriety.

HEADNOTE: The   appellant,  a  practising  lawyer  engaged   by.   the respondent  to  investigate title in respect of  a  property when the latter wanted to purchase, was prosecuted by him on a charge under a. 409 &-the Indian Penal Code for misappro- printing  a  sum  of Rs. 50001-entrusted  to  him  for  that purpose.   The  prosecution  mainly  depended  on  a  letter written by the appellant which would show that a sum of  Rs. 4200/-  out of the said amount of Rs. 5000/- had been  asked for by  the appellant.  This letter was  challenged  as  a forgery by the 565 appellant.   The  respondent  did not  call  a  hand-writing expert nor was he denied an opportunity to do so.  The trial Magistrate  held  that  the prosecution case  had  not  been proved  and  acquitted  the appellant.  The  High  Court  on appeal by the respondent set aside the order of acquittal on the  ground  that the appellant was a practicing  lawyer  in fiduciary relationship with his client and directed that the appellant be retried, by smother Magistrate with opportunity to the respondent to examine a hand-writing expert in  order to  establish the genuineness of the said letter.   It  held that  since the case was one not between ordinary  litigants but  between a lawyer and his client, involving a  fiduciary relationship,  no steps should be spared to ensure  complete justice  between the parties and the case must be sent  back even though the prosecution did not avail of the opportunity of proving its own case. Held,  that  the  order  of the  High  Court  were  entirely erroneous  and must, be set aside.  There was no ground  for directing a retrial and the appellant could not be put to  a second  trial  for the same offence simply  because  of  the

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failure  of the complainant to adduce all the evidence  that should  and  could, have been adduced.  The  fact  that  the appellant was a lawyer could make no difference and the same rules  of criminal, jurisprudence that applied to  all  must apply  to him.  Further, the High Court was  not  exercising disciplinary jurisdiction and no relationship of lawyer  and client was involved in the criminal case.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 119  of 1961. Appeal from the judgment and order dated December 21,  1961, of the Calcutta High Court in Cr. A. No. 423 of 1958. P.   K. Chakravarty, for the appellant. S.   C. Mazumdar, for respondent No. 1. D.   N. Mukherjee, P. K. Mukherjee for P.    K.  Bose,   for the respondent No. 2. 1962.  August 3. The Judgment of the Court was delivered by SINHA, C.J.-This appeal on a certificate of fitness  granted by the High Court under Act 134(1), (c). 566 of  the  Constitution, is directed against the  order  of  a Division Bench of the Calcutta High Court dated December 21, 1960,  setting  aside the order of acquittal passed  by  the trial Magistrate, dated July 2, 1958.  We heard this  appeal on the eve of the long vacation and pronounced our order  to the  effect  that the appeal was allowed and  the  order  of acquittal  was  to stand, and that reasons  would  be  given later. It appears that the appellant, who it; a practising  lawyer, had  been  employed  by the respondent to work  for  him  to investigate the title to some property which the latter  was about   to   purchase,  sometime  in  October   1952.    The prosecution case was that the respondent had entrusted  the. sum  of Rs. 5000/- to the appellant for depositing in  Court in connection with an application in respect of the proposed transaction,  under the Bengal Money Lenders’ Act, and  that the  appellant having been so entrusted with the  money,  in breach  of trust, misappropriated the amount,  thus  causing loss  to his client.  The appellant was, therefore,  charged under s. 409 of the Indian Penal Code, with having committed criminal breach of trust in respect of the sum of Rs. 5000/- ,  which had been entrusted to him as a lawyer on behalf  of the  respondent.  The appellant defense was that  the  case, against  him  was  false  and  that  he  had  been   falsely implicated for reasons which need not be stated. In  order  to  substantiate  the  charge  against  him,  the complainant  (now respondents examined himself and a  number of  witnesses.   He  also  adduced  in  evidence  a  certain document,  marketed Ex. 1, purporting to be a letter in  the handwriting of the appellant, to show that Rs. 4200/-  being a  portion  of  the amount of Rs. 5000/-  required  for  the deposit, had been asked for by the appellant.  It also  con- tained  writings in the hand of the complainant &owing  that there was correspondence in the matter  567 of  the  deposit.   That  was  a  very  important  piece  of evidence, which if genuine could go a long way to prove  the case  against the appellant.  But the  appellant  challenged the  document  as a forgery in material  parts,  and  cross- examined the complainant who had produced the document.   In spite  of the fact that the complainant was  very  pointedly cross-examined  with  a view to showing  that  the  document

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placed before the Court was a forgery in material parts, the complainant  did  not  take any steps to get  an  expert  on handwriting  examined.  The trial Court, on  an  examination of-the   evidence,  oral  and  documentary,  came   to   the conclusion  that the case against the accused had  not  been proved  and  acquitted him.  The  complainant  preferred  an appeal  to  the High Court against the order  of  acquittal, which was heard by a Division Bench, The High Court took the view that, in the circumstances of the case, there should be retrial   by   another  magistrate,  who  should   give   an opportunity  to the complainant to adduce the evidence of  a handwriting expert in order to establish the genuineness  of the  questioned  document.   Apparently,  the  High   court, sitting  in appeal on the judgment of the acquittal,  passed by  the  learned  Magistrate, was not satisfied  as  to  the genuineness of the questioned document.  Otherwise it  could have  pronounced its judgment one way or the other,  on  the merits  of the controversy, whether or not  the  prosecution had  succeeded in bringing the charge home to  the  accused. If it were not a case between a lawyer as an accused and his client  as the complainant, perhaps the High Court  may  not have taken the unusual course of giving a fresh ’opportunity to the complainant to have    second round of litigation, to the  great  prejudice of the accused.  In  this  connection, the  following  observations  of  the  High  Court  may   be extracted  in  order  to show the  reasons.for  the  unusual course it took in this case: 568               "Thus  there can be no doubt that this  was  a               document    of    considerable     importance.               According to the prosecution it clearly showed               the  respondent’s connection with the  sum  of               Rs. 4200/- which was a part of the sum of Rs.               5000/-,  the  subject matter  of  the  charge.               According to the respondent, the figures  4200               and  the  Bengali word ’sankranta’  were  for-               geries  just as at the bottom of the  document               the  word yes’ and the signature of  the  res-               pondent  with date were also forgeries.   This               case  was  clearly put by  the  respondent  to               Bimla, Krishna Ben and it was suggested to him               that  the- impugned portions of  the  document               were clear forgeries made by the appellant  in               order to falsely implicate the respondent.  It               must be said that  inspite of this  challenge,               the  appellant  took no steps  what.  ever  to               produce  expert evidence to aid the  court  in               coming to a conclusion as to the authorship of               the  impugned portion of the document.  It  is               true  that expert evidence cannot always be  a               final  settler; still in a call of this  kind,               it  is  eminently  desirable  that  the  court               should be assisted by a qualified expert since               almost  the whole case depends upon  proof  of               the fact whether the impugned portions of that               document    were   in   the   hand   of    the               respondent.........  Comment was also made  by               the  Magistrate on the appellant’s failure  to               call  expert  evidence.   In  one  sense  that               comment  was justified; but in a case of  this               kind  between lawyer and client we  think  the               matter  cannot be left, where it is.  In  view               of  the fiduciary relation. ship  between  the               parties  it  is  as  much  necessary  in   the               interest  of,  the  prosecution  as  in.   the

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             interest of the accused that the whole  matter               should be cleared’ up, and no steps               569               should  be spared which might ensure  complete               justice  between the parties.  If it  were  an               ordinary   case  between  one   litigant   and               another, we might have hesitated at this  dis-               tance  of  time  to send the  case  back  even               though  the prosecution did not avail  of  the               opportunity of proving its own case." In  all  civilised  countries,  criminal  jurisprudence  has firmly  established the rule that an accused  person  should not be placed on trial for the same offence more than  once, except in very exceptional circumstances.  In this case, the complainant had the fullest opportunity of adducing all  the evidence that he was advised would be necessary to prove the charge  against  the  accused person.  It was  not  that  he proved for the examination of an expert and that opportunity had been denied to him. The prosecution took its chance  of having  a decision in its favour on the evidence adduced  by it  before  the trial Court.  That Court was  not  satisfied that  evidence was adequately reliable to bring the charge home  to the accused.  The accused was thus  acquitted.   On appeal,  it was open to the High Court to take  a  different view of the evidence, if the facts and circumstances  placed before it could lead to the conclusion that the appreciation of  the  evidence  by  the trial  Court  was  so  thoroughly erroneous  as  to be wholly unacceptable  to  the  Appellate Court.   If the High Court could come to the conclusion,  it could have reversed the judgment and converted the order  of acquittal  into an order of conviction.  But it  should  not have  put  the accused to the botheration and expense  of  a second  trial simply because the prosecution did not  adduce all  the evidence that should, and could, have been  brought before the Court of first instance.  It is not a case  where it  in  open  to the Court of Appeal, against  an  order  of acquittal, to order a retrial for the reasons that 570 the   trial  Court  has  not  given  the  prosecution   full opportunity  to adduce all available evidence in support  of the  prosecution case.  It has no where been suggested  that the   trial   Magistrate  had   unreasonably   refused   any opportunity  to the prosecution to adduce all  the  evidence that  it was ready and willing to produce.  That  being  so, the High Court, in our judgment, entirely misdirected itself in setting aside the order of acquittal and making an  order for  a  fresh  trial by another Magistrate,  simply  on  the ground  that the case was between a lawyer and  his  client. Simply because the accused happened to be a lawyer would not be a ground for subjecting him to harassment a second  time, there  being no reason for holding that his  prosecutor  had not  a fair chance of bringing the charge home to  him.   In our opinion, the High Court gave way to considerations which were  not relevant to a criminal trial.  The High Court  was not  sitting on a disciplinary proceeding  for  professional misconduct.   It  had to apply the same  rules  of  criminal jurisprudence as. apply to all criminal trials, and, in  our opinion,  the  only.  reason given by  the  High  Court  for ordering  retrial is against all well-established  rules  of criminal  jurisprudence.  The fact that the appellant  is  a practising  lawyer does not entitle him to any  preferential treatment when he is hauled up on a criminal charge, even as he  is not subject to any additional disability because  the cam  was  between  a lawyer and his client.   There  was  no relationship  of  lawyer and client so far as  the  criminal

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case  was  concerned.  Hence, in our opinion, the  order  of retrial  passed by the High Court is entirely erroneous  and must be set aside.                                       Appeal allowed. 571