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PETITIONER: ALMOHAN DAS AND ORS.

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT: 25/10/1968

BENCH:

ACT:        Criminal   Procedure   Code  1898,  ss.   207,A   and 209--Committal   proceedings--If   Magistrate   should    be satisfied as to guilt of accused or only that there is  some credible  evidence  to sustain a  conviction  before  making order  of  commitment.--Circumstances in  which  High  Court justified in interfering with committal in revision.

HEADNOTE:     On a complaint filed by ’the Registrar of Companies, and after  an investigation by the Police ordered by  the  Chief Presidency Magistrate, Calcutta, proceedings were instituted against  the  appellants for conspiring to  commit  criminal breach  of trust in respect of a company’s funds.   After  a large   number  of  witnesses  were  examined  and   several documents   were  tendered  in  evidence,   the   Magistrate committed  the accused to stand trial for offences under  s. 120B read with Sections 409, 477A I.P.C. before the Court of Sessions.  A  revision  application  against  the  order  of committal  was  rejected  in limine by the  High  Court.  In appeal  to  this  Court it was contended on  behalf  of  the appellants that there was no evidence on which the order  of commitment could be made and that under s. 209 (1) Cr. P.C., the  charge  may  be  framed only if  in  the  view  of  the committing  Magistrate the evidence on record is  sufficient to justify conviction of the accused.     HELD: Dismissing the appeal:     On  the  facts, it could not by said that there  was  no evidence  on  which  a charge could be  framed  against  the appellants  or that the evidence was so totally unworthy  of credit  that are order recording the conviction against  the accused could not be made..     Although  in  terms s. 209 ’applies to cases  which  are instituted otherwise than on a .police report, the principle underlying  that  section also applies to  cases  which  are instituted  on  a police report.  A  Magistrate  holding  an inquiry has to see whether there is sufficient evidence  for commitment,  and not whether there is  sufficient   evidence for conviction.  If  there is no prima facie evidence or the evidence  is totally unworthy of credit, it is his  duty  to discharge the accused: if there is some evidence on which  a conviction  may  reasonably be based, he  must  commit  the’ case. [525 A--C]     Normally the High Court in a revision application  flied against the order of commitment under s. 207A will not enter upon  a  reappraisal of the evidence on which the  order  of commitment  is  made.  The  High Court would be justified in exercising  its revisional jurisdiction where a  substantial question of law arises on which the correctness of the order

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of  commitment may be effectively challenged.  But in  other cases  the  trial  before the Court  of  Session  should  be allowed to run its course. [522 G--523 B]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 129 of 1966.     Appeal  by  special leave from the  judgment  and  order dated March 21, 1966 of the Calcutta High Court in  Criminal Revision No. 309 of 1966. 521 A.  K.  Sen,  P.K. Chatterjee,  M.M.  Kshatriya   and   G.S. Chatterjee, for the appellants. B.  Sen  and  P.K.  Chakravarti,  for  the  respondent.  The Judgment of the Court was delivered by     Shah, J. Mahendra Lal and Probhat Kumar Sarkar were  the promoters,  and  Almohan Das was the first Chairman  of  the Board  of  Directors of the Great  Indian  Steam  Navigation Company Ltd.  Messrs. Das Brothers of which Almohan Das  was the  sole  proprietor  became the managing  agents’  of  the Company in 1945.  On July 2,  1951, Das Group Ltd. of  which also  Almohan Das was the principal Director took  over  the managing agency.     The   Registrar  of  Companies,  West  Bengal  filed   a complaint  in the Court of the Chief  Presidency  Magistrate alleging  that sometime between March 1, 1945  and  December 31,  1947  a sum of .Rs. 7,23,031-9-6 was advanced  by  the. Company to the managing agents Messrs Das Brothers; that  on July 2, 1951 Messrs Das Brothers resigned from the  managing agency  and  Messrs Das Group Ltd. took  over  the  managing agency;  that  Almohan  Das  was at  all  material  times  a director  of the company and also a director of  Messrs  Das Group  Ltd. and the sole proprietor of Messrs Das  Brothers; and that the complainant had reason to believe that  Almohan Das  with  other  directors of  the  company  had  committed offences  under  ss. 86-D and 87-D of the  Indian  Companies Act,   1913.  The  complainant  requested  that   a  through investigation .be made in the matter.  The Chief  Presidency Magistrate,  Calcutta, referred the case to the  police  for investigation.     In the course of investigation of the complaint referred to   him,  Sub-Inspector  J.N.  Mukherjee  filed   a   First Information  against  eight  persons  (including  the   five appellants  in  this  appeal)  charging  them  with  having, conspired  to commit criminal breach of trust in respect  of the  company’s funds, falsification of accounts  and  making false   returns,   balance-sheets  and  accounts,   and   in furtherance of the object of the conspiracy with  committing offences  punishable  under ss. 409 and 477A I.P.  Code  and under  s.  282  of the Indian Companies  Act,  1913.   After investigation, Sub-Inspector Mukherjee submitted on February 29,  1958,  a report under s. 173 of the  Code  of  Criminal Procedure  in the Court of the Chief  Presidency  Magistrate for those offences against seven persons including the  five appellants.     The  Presidency Magistrate, 9th Court, to whom the  case was transferred for trial, rejected the contention raised by counsel  for  the defence that to a charge  made  against  a director in relation to 522 the  affairs of the company, the Indian Penal Code can  have no  application,  and  the  prosecution,  if  any,  may   be

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instituted under the provisions of the Indian Companies  Act alone.   The  Magistrate also held that it was open  to  the police   officer   to  whom  the  case  was   referred   for investigation to submit a charge sheet of his own initiative and  that  the Court had jurisdiction to  enquire  into  the charge  so  made without the sanction of the High  Court.  A revision  application  was  filed  in  the  High  Court   of Calcutta  against  that  order,  but  the  application   was rejected.     Proceedings  were  then  resumed by  the  Magistrate  on December  5,  1961,  and a large number  of  witnesses  were examined  before him and several documents were tendered  in evidence.   On December 3,  1965, the Presidency  Magistrate committed the accused to stand trial for offences under  ss. 120B  read  with 409 & 477A I.P. Code before  the  Court  of Session.  He observed:                     "....having   regard   to   the   entire               evidence on record and facts and circumstances               of the case,  I am convinced prima facie  that               good grounds exist for framing charge under s.               409  I.P.C. against accused Almohan  Das  with               charge  under  s. 120B read with s.  409  I.P.               Code  aaginst  (1) Almohan Das, (2)  Sisir  K.               Das,  (3)  Nara Singha Pal, (4)  Mohendra  Lal               Kundu  and (5) Provat Kumar  Sarkar,   another               charge under s. 467 read with s. 34 I.P.  Code               against (1) Almohan Das, (2) Nara Singha  Pal,               and (3) Mohendra L. Kundu for forging Ext.  5,               and  last  under s. 477A against  (1)  Aimoban               Das,  (2)  Nara Singha Pal, (3)  Mohendra  Lal               Kundu,(4)  Provat Kumar Sarkar and  (5)  Sisir               Kumar  Das  in respect  of   falsification  of               shareholders  minute book (Ext. 18) purporting               to ratify the action of Almohan Das  regarding               the funds of the G.I.S.N. & Co. Ltd." Against this order, a revision application was filed in  the High  Court  of  Calcutta  which  was’rejected  in   limine. Against the order passed by the High Court, this appeal  has been filed with special leave.     In  the  present case the order of commitment  was  made under  s. 207A of the Code of Criminal Procedure.   Normally the  High Court in a revision application filed against  the order  of  commitment under s. 207A will not  enter  upon  a reappraisal of the evidence on which the order of commitment is  made.  The High Court would be justified  in  exercising its revisional jurisdiction where a substantial question  of law  arises  on  which  the  correctness  of  the  order  of commitment may be effectively challenged, where there is  no evidence  on  which the order of commitment could  be  made, where there has been denial of a right to fair 523 trial, where there is reason to think because of failure  to comply  with the rules of procedure or conditions  precedent to initiation of criminal proceedings, where by ignoring the substantive   law   which  constitutes   the   offence,   or misconception  of  evidence on matters of  importance  grave injustice  has resulted, and on similar other grounds.   But in   other  cases,  interference  with  the  order  of   the Magistrate  committing  the  accused for trial  may  not  be justified  and the trial before the Court of Session  should be allowed to run its course. Counsel  for the appellants submitted that there was no  evi dence on which the order of commitment could be made.  We do not  think that there is any ground for so holding.  It  was the prosecution case that in order to commit criminal breach

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of  trust in respect of an amount exceeding Rs. 5  lakhs  by allowing it to remain with Messrs Das Brothers--the previous managing agents of the company of which Almohan Das was  the sole  proprietor  and from whom Messrs Das Group  Ltd.  took over  the  managing  agency-a conspiracy  was  entered  into between the seven named persons, and the minutes book of the meetings  of  the Board of Directors and  the  shareholders’ minutes  book were fabricated and criminal breach  of  trust was  committed  in  respect of the funds  belonging  to  the Company.  It is true that in the balance sheet Ext. 137  for the year ending December 31, 1952, on the assets side is  an item   ’Sundry  Advances  (Unsecured)’  inclusive   of   Rs. 5,78,941-7-0  due  by  a firm in which  a  director  of  the Company  was  a partner.  But this, it is the  case  of  the prosecution,  was not supported by any resolution passed  by the Board of Directors.  By letter dated June 21,  1956, the Additional  Registrar  of  Companies asked  the  Company  to furnish  a  certified copy of the minutes of  the  Board  of Directors  .in which the loan had been made to the  managing agents  of  the Company.  In reply thereto by  letter  dated July  12, 1956, the Managing Agents wrote that as the  money was held by the managing agents and was not given or treated as a loan, there was no resolution of the Board of Directors in  that connection.  On September 29, 1956, the  Additional Registrar of Companies again wrote a letter .to the  Company enquiring  whether the amount of Rs. 5,78,941-7-0 which  was lying  with  the  previous managing agents  of  the  Company Messrs Das Brothers had since been realised, and if so,  the evidence  adjusting the liability,. and if not, to  intimate with  material  evidence whether any steps  had  since  been taken by the Company for the realization of the dues and how the  matter  stood. in the course of the  investigation  the officer in charge attached a directors’ minutes book Ext.  5 which  contains  the  minutes of  a  resolution  authorising Almohan   Das  to  retain   the  funds  of    the   Company. Therefore, there was some evidence on which the 524 charge for fabrication of the Director’s Minutes Book may be sustained.       In  dealing  with  the  charge  for  fabricating   the Shareholders’  Minutes  Book  the  learned  Magistrate   has observed that the materials on the record made out a  strong prima facie case that the Shareholders’ Minutes Book Ext. 18 is  also  a forged document. The  circumstances  which  lent colour  to  the  prosecution, in the  view  of  the  learned Magistrate  were--(1) that Ext. 18 starts from February  28, 1945, although the Company was incorporated in 1942, (2)  in many  meetings the signatures of the shareholders  were  not taken although in some meetings the shareholders signed  the minutes  book,  (3)  resolutions of  Amaresh  Pramanick  and Sudhir  Kanti  Sarkar are not incorporated  in  the  minutes book,  (4) some portions in the last page in  the  agreement (Ext. 20) with the managing agency firm Das Group appear  to have  been  erased out and the agreement was  thus  tampered with, (5) the minute book Ext. 18 does not incorporate  ’the relevant  questions,  and  there  appeared  tampering   with pagination, (6) the evidence of P.Ws. 6 & 16 regarding their presence or absence, and (7) the testimony of P.Ws. 15 &  24 suggested  that most of the persons shown to  have  attended meetings  were at the "back and call of the accused  Almohan Das".   Whether  this  evidence may   justify  a  conviction cannot  be  enquired into at this stage.  The  evidence  was prima facie sufficient to frame a  charge.   The  Presidency Magistrate was of the view that a case for framing a  charge for committing the case to the Court of Session was made out

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and  the  High Court has summarily  dismissed  the  revision application in exercise of its jurisdiction.       It was contended before us that under s. 209(1) of the Code  of Criminal Procedure, a charge may be framed only  if in  the  view of the committing Magistrate the  evidence  on record  is sufficient to justify conviction of the  accused. Section 209 of the Code provides:                    "When the evidence referred to in section               208, subsections (1) and (3), has been  taken,               and he has (if necessary) examined the accused               for the purpose of enabling him to explain any               circumstances   appearing  in   the   evidence               against  him,  such Magistrate  shall,  if  he               finds  that there are not  sufficient  grounds               for  committing the accused person for  trial,               record  his reasons and discharge him,  unless               it appears to the Magistrate that such  person               should  be tried before himself or some  other               Magistrate,  in  which case he  shall  proceed               accordingly." 525 In  terms  s.  209 applies to  cases  which  are  instituted otherwise  than  on  a  police  report.  But  the  principle underlying   that  section  applies  to  cases   which   are instituted  on  a police report.  A  Magistrate  holding  an enquiry  is  not  intended to act.  merely  as  a  recording machine.  He is entitled to sift and weigh the materials  on record,  but  only for seeing whether  there  is  sufficient evidence for commitment, and not whether there is sufficient evidence  for  conviction.   If  there  is  no  prima  facie evidence  or the evidence is totally unworthy of credit,  it is  his  duty  to discharge the accused: if  there  is  some evidence  on which a conviction may reasonably be based,  he must  commit the case. The Magistrate at that stage  has  no power to evaluate the evidence for satisfying himself of the guilt of the accused.  The question before the Magistrate at that stage is whether there is some credible evidence  which would sustain a conviction.     We  do  not agree with counsel for the  appellants  that there  was  no evidence on which a charge  could  be  framed against  the appellants or that the evidence was so  totally unworthy  of credit’ that an order recording the  conviction against the accused could not be made thereon.     The  appeal fails and is dismissed.  We trust  that  the case  which  has been held up for a very long time  will  be taken up by the Court of Session for trial  with  the  least practicable delay. R.K.P.S.                                 Appeal dismissed. 526