http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: KANTILAL CHANDULAL MEHTA

       Vs.

RESPONDENT: STATE OF MAHARASHTRA AND ANR.

DATE OF JUDGMENT: 10/10/1969

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN SIKRI, S.M.

CITATION:  1970 AIR  359            1970 SCR  (2) 742  1970 SCC  (3) 166

ACT: Criminal trial-Charge, amendment of-High Court allowing plea for  alternate  charge  and remanding  case  keeping  appeal pending-Code of Criminal Procedure 1898, ss. 423, 535.

HEADNOTE: The  second  respondent Bank filed a complaint  against  the appellant  alleging against him misappropriation  of  moneys and  goods contrary to the Packing Credit Agreement  entered into  between  the  appellant’s  firm  and  the  Bank.   The Magistrate  framed  only one charge against  the  appellant, viz.,  ’for misappropriation of moneys, under s. 406,  Penal Code.  Against his conviction the appellant appealed to  the High  Court  and  when  the  case  had  been  argued  for  a considerable  length  the  learned  Judge  allowed  an  oral application  for amendment of the charge to include  one  of misappropriation  of  goods.  Allowing the  application  the learned Judge directed that the case be sent back "for a new trial on the amended charge so as to enable the appellant to have  full opportunity to meet the case till which time  the appeal  is  kept pending." In appeal to this  Court  against this order. HELD : Dismissing the appeal, The  Code  of Criminal Procedure gives ample  power  to  the courts to alter or amend a charge whether by the trial court or by the appellate Court provided that the accused has  not to  face  a charge for a new offence or  is  not  prejudiced either  by keeping him in the dark about that charge  or  in not  giving  a full opportunity of meeting  it  and  putting forward  any  defence  open to him, on  the  charge  finally preferred against him.  Especially, cl. (d) of sub-s. (1) of s.  423  empowers  the  appellate court  even  to  make  any amendment or any consequential or incidental order that  may be just or proper.  Further, s. 535 provides that no finding or  sentence  pronounced  or passed shall be  deemed  to  be invalid merely on the ground that no charge has been  framed unless  the  court  of appeal or revision  thinks  that  the omission  to do so has occasioned failure of justice and  if in  the opinion of any of these courts a failure of  justice has  been  occasioned by an omission to frame a  charge,  it shall  order  a  charge to be ’framed and  direct  that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

’trial  be recommended from the point immediately after  the ’framing of the charge. [748 A-E] Thakar Sahab v. Emperor, [1943] P.C. 192, referred to. In the present case the learned Judge of the High Court  did not  intend  nor  did  he  direct  a  new  trial;  only   an opportunity  was given to the accused to  safeguard  himself against any prejudice by giving him a opportunity to  recall any witness and adduce any evidence on this behalf. [749 C] The   offence   with  which  the   appellant   was   charged alternatively was the same, namely, under s. 406; but as the entire  transaction was one and indivisible he was not  only required  to answer the charge of misappropriation of  money but  in the alternative misappropriation of goods which  the complainant  Bank  contended became their’s as soon  as  the accused   purchased  them  with  the  moneys  it   advanced. Therefore no prejudice was 743 caused,  nor was likely to be caused to the accused  by  the amendment of the charge as directed by the High Court.  [749 E-F]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 260  of 1968. Appeal  by special leave from the judgment and  order  dated October 18, 1968 of the Bombay High Court in Criminal Appeal No. 1161 of 1966. A.   S.  R.  Chari,  S. S. Khanduja and Maya  Rao,  for  the appellant. M.   C. Bhandare and S. P. Nayar, for respondent No. 1. V.   M.  Tarkunde,  Janendra  Lal and B.  R.  Agarwala,  for respondent No. 2. The Judgment of the Court was delivered by P.   Jaganmohan  Reddy, J. This appeal is by  special  leave against the order of the High Court of Bombay dated the 18th October  1968 allowing the oral application of  the  learned advocate for the respondent for the amendment of the  charge of  terms  of the draft submitted by him and  directing  the Chief Presidency Magistrate to assign the case to some court for  holding a new trial in respect of the  amended  charge. This order was made in the following circumstances The  appellant was one of the partners of a  firm  Chandulal Kanji  & Co. along with his brother Chandulal K. Mehta.   By and  under an agreement called the Packing Credit  Agreement entered into between the firm and the second respondent, the Union  Bank of India, the appellant obtained 75 per cent  of the  value  of groundnut extraction to be purchased  by  the firm  and exported to the United kingdom and other  European countries  from the Bank on the condition  that  immediately after the purchase of the goods and its export the  shipping documents  would be sent to it.  This  arrangement  required the firm while sending a letter requesting the credit to  be given  to it, to enclose the contract of sale  of  groundnut extraction entered into between it and the foreign firm.  On receipt  of  this letter and the agreement. the  bank  would advance  75 per cent of the money required to  purchase  the groundnut extraction.  After the amount was received,  goods had  to be purchased from the mills and shipped  for  export and  the shipping documents sent to the Bank within a  month from  the date of such advance.  It appears that under  this arrangement  the second respondent Bank had  advanced  under the  Cash Credit Agreement and the Packing Credit  Agreement nearly rupees 4 lacs on several dates the first of which was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

744 March  27,  1965 which was for the purchase of 200  tons  of groundnut  extraction and with which we are  now  concerned. The Cash Credit Agreement, the Packing Credit Agreement  and the  letter requesting the advance of Rs. 60,000/- were  all signed  on  the same date.  The advance, as  requested,  was also made on the 27th March 1965.  Goods were purchased  but could  not  be shipped within a month from the date  of  the advance  because, as stated in the letter of  the  appellant dated  the  27th  April, due to change in  the  schedule  of departure  of  the ships it was not possible to  export  the goods  on  the 24th or 25th March as originally  planned  as such  he undertook to ship the goods a week thereafter.   On the same day, the appellant further sent a declaration  that the firm had purchased 300 tons from the advance made to  it and is holding the stock.  On the 6th May the Bank requested the firm to forward the shipping documents in respect of the seven  agreements of which one related to the  agreement  of 27th March.  When the shipping documents were not sent to it in  conformity  with  the several documents  the  bank  made certain  enquiries  from its branch in Veraval,  a  port  in Kathiawar  and received certain information as to the  dates on which the various quantities were exported and the  ships in which they were sent.  As the shipping documents were not sent  to  the  second  respondent  as  required  under   the agreements entered into with it, it again called on the firm on the 24th May to hand over the documents to it in  respect of  the  groundnut  exported.  When  this  request  was  not complied  with, it filed a complaint against  the  appellant who  alone was the active partner of the firm, in the  court of  the  Presidency  Magistrate on  the  26th  May  alleging against him misappropriation of moneys and goods contrary to the agreement.  In support of this complaint the manager  of the  Bank  gave  evidence and at the stage  of  framing  the charge the Magistrate heard the lawyers for both sides.   He framed   only   one   charge   against   the   accused   for misappropriation of the moneys under S. 406 I.P.C.  advanced by  the Bank in respect of which the  Magistrate  ultimately convicted  him on 31st August 1966 and sentenced him  to  18 months’ R.I. Against this conviction the appellant  appealed to the High Court and when the case came up for hearing  and had been argued for a considerable length, the advocate  for the complainant, the second respondent, appears to have made an  oral application for amending the charge framed  by  the Magistrate as per the draft handed over to the learned Judge which was to be added as an alternative charge to the charge already  framed.  It was contended that the  Magistrate  had framed a charge merely in respect of the entrustment of  the moneys  that were advanced by the Bank to the appellant  but even  so  the  evidence  had  been  led  on  behalf  of  the complainant  at the trial to show that apart from the  money with which the appellant was said to have been 745 entrusted  with, even the goods that were purchased  by  the appellant  with  the  moneys  so  advanced  had  also   been entrusted to him and which he had agreed to hold on  account of  the  Bank.   This  prayer was  opposed  by  the  learned advocate for the appellant who contended that it was open to the  complainant  to have urged the Magistrate at  the  time when the charge was being framed to have an alternate charge similar to the one now required to be added.  In fact it was stated by the learned advocate that the charge was  actually framed  by the Magistrate after substantial evidence of  the complainant   had  been  recorded  by  him  and  after   the complainant’s advocate in the lower court had discussions on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

the  question of the framing of charge, but in spite  of  it only one charge was framed against the appellant for  breach of trust in respect of moneys said to have been entrusted to the appellant by the Bank.  The charge relating to goods was omitted  and not framed.  It was also pointed out  that  the altering  or amending of charge at this stage  would  really amount  to the framing of a totally new charge in regard  to altogether a new subject matter, namely, alleged entrustment of goods, which if permitted would prejudice the accused  in his  defence.   The learned Judge,  however,  after  hearing these  arguments thought that a charge which  would  include entrustment of moneys as well as entrustment of goods  ought to  have been framed by the Magistrate but having regard  to the  materials which have already been brought on record  by the  complainant  at  the  trial  he  thought  that  it  was desirable in the interest of justice to allow the amendment. The  following  directions given by the  learned  Judge  are relevant  for  the  determination of  the  contention  urged before us :               "I  direct  that the charge as framed  by  the               learned  Magistrate be altered and amended  in               terms  of  the draft amendment  submitted  and               send  the  case back for a new trial  on  this               amended  charge so as to enable the  appellant               to  have full opportunity to meet  this  case,               till which time this appeal is kept pending.               I  direct  that  the papers  be  sent  to  the               learned Chief Presidency Magistrate  forthwith               and the learned Chief Presidency Magistrate is               further  directed to assign the case  to  some               Court  for holding the new trial.   I  further               direct   that   the  new   trial   should   be               expeditiously completed and preferably  within               two  months from the receipt of the papers  by               the Court to which the case would be  assigned               by the learned Chief Presidency Magistrate.               The  other two appeals being Criminal  Appeals               Nos.  1162  and 1163 of 1966  should  also  be               adjourned as part-heard matters and to be  put               up along with Cri-               746               minal Appeal No. 1161 of 1966 after the record               and  the  proceedings  of  the  new  trial  is               received by this Court." Mr.  Chari on behalf of the appellant construing  the  above order  as a direction for a new trial without  disposing  of the   appeal  contends  that  it  is  unwarranted,   unfair, inequitable and unsupported ’by any of the provisions of the Code  of Criminal Procedure.  The learned  advocate  further submits  that it is grossly prejudicial to the accused,  for the  prosecution to wait till the end of the trial and  then say that the charge should be amended.  It could have easily insisted  at the stage of framing the charge itself that  an additional charge should be framed and if the prayer was not accepted  it could have come in revision.  The,  prosecution having let the trial proceed to the end without insisting on any  additional charge cannot now before an appellate  court ask  for  its  amendment nor should the  said  amendment  be permitted.  Secondly, he submits that the learned Judge  did not  consider  the question whether there was or was  not  a prima facie case of entrustment of goods.  In fact it is the contention  that the cumulative effect of the agreement  and the transaction between the appellant and the second respon- dent Bank does not disclose entrustment of moneys to sustain the  charge  for which the appellant was  convicted  and  if

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

there can be no question of any entrustment of moneys  there can  be no entrustment of goods.  The learned Judge,  it  is stated, should have adverted his mind to this aspect of  the case  before he permitted the framing of  additional  charge and  directed the Magistrate to hold a new trial.   In  fact the  learned advocate urged that before the  Magistrate  the second  respondent’s advocate had specifically  stated  that the  trial  should proceed only on one  charge  relating  to entrustment  of  moneys as a test case and having  taken  up this  position no prayer for the addition of another  charge can  be  made  or  ought to have  been  granted.   But  Shri Tarkunde appearing on behalf of the second respondent denies that there was any such submission and contends that in fact Tulzapurkar  J. did not direct a new trial as  suggested  by the  advocate on behalf of the appellant though the  use  of the  words  "new trial" has unhappily given rise to  such  a contention.  What in fact the learned Judge did was to  send the  case back to the Magistrate to enable the appellant  to have full opportunity to meet the case and return the record to  the court to enable it to dispose of the appeal on  both the charges.  The learned advocate submits that there is  no illegality  in the order of the learned Judge  because  what the  appellate court could have done itself it is  directing the Magistrate to do, namely, to give an opportunity to  the accused to call the prosecution witnesses if he so  desires, obtain  his  statement  under  S.  342  in  respect  of  the additional charge and to allow him to record any evidence on 747 his behalf if he is so desirous.  It appears to us that  the contention  of  Shri  Tarkunde is  amply  justified  by  the following  observations  of the learned Judge  allowing  the application for amendment made by Mr. Patel on behalf of the second respondent:               "I  have  therefore asked Mr. Khambata  as  to               whether  the appellant would like to  have  an               opportunity of a new trial where he could meet               this case and Mr. Khambata has stated that the               proper  course for the court,  after  allowing               amendment  of the charge in the manner  sought               by  the complainant, would be to order  a  new               trial.    Mr.  Patel  for   the   complainant,               however, has stated before me that even during               such  new trial that would be ordered  by  the               court,  no  fresh  evidence would  be  led  on               behalf of the complainant and the  complainant               would  be relying upon the self same  material               that has already been brought on record by the               complainant  at  the trial, which  is  already               concluded.               Mr.  Khambata also urged before me that  if  I               were inclined to allow the application of  Mr.               Patel,  I should dispose of the  appeal  which               deals  with  the alleged  entrustment  of  the               monies  and either accept the findings or  set               aside the findings and thereafter order a  new               trial in regard to the alleged entrustment  of               the goods.  I feel that it would be  desirable                             and  proper  to  keep  this  pending till  the               opportunity   that  is  being  given  to   the               appellant-accused No. 2 to meet this new  case               is  fully availed of by him and the record  of               such new trial is received by this court.               I  accordingly  allow the application  of  Mr.               Patel for amendment of the charge in terms  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

             the draft submitted by him." From  the  above  observations it would be  clear  that  the learned Judge did not intend that the trial should be a  new trial  in  the sense that the Magistrate  would  record  the evidence  afresh, see whether there, was a prima facie  case for  framing  a charge and if there was, to frame  a  charge then  permit  the complainant to lead evidence,  record  the statement of the accused under s. 342 and adduce evidence on his  behalf  after  which he  would  pronounce  judgment  of conviction  or  acquittal.  If he had so  intended  and  had directed  a  totally new trial as is alleged, he  could  not have  rejected  the  contention of  Shri  Khambata  for  the appellant  that he should dispose of the appeal and order  a new  trial  on  the  additional charge  nor  would  he  have directed  that  the appeal should be kept pending  till  the record of the new trial is received back in his court  which could only be after giving 748 the accused appellant an opportunity to meet the case on the additional charge. On this interpretation of the order the question is  whether what has been directed by the learned Judge is in conformity with  the provisions of the Code of Criminal Procedure.   In our  view the Criminal Procedure Code gives ample  power  to the  courts to alter or amend a charge whether by the  trial court  or by the appellate court provided that  the  accused has  not  to  face  a charge for a new  offence  or  is  not prejudiced  either  by keeping him in the  dark  about  that charge or in not giving a full opportunity of meeting it and putting  forward  any  defence open to him,  on  the  charge finally  preferred against him.  The power of the  appellate court  is set out in section 423 Cr.  P. C. and invests,  it with  very wide powers.  A particular reference may be  made to  clause (d) of sub-section (1) as empowering it  even  to make any amendment or any consequential or incidental  order that  may be just or proper.  Apart from this power  of  the appellate Court to alter or amend a charge, section 535  Cr. P.   C.  further  provides  that  no  finding  or   sentence pronounced or passed shall be deemed to be invalid merely on the  ground that no charge has been framed unless the  Court of appeal or revision thinks that the omission to do so  has occasioned  failure of justice and if in the opinion of  any of these courts a failure of justice has been occasioned  by an omission to frame a charge, it shall order a charge to be framed  and  direct that the trial be recommenced  from  the point immediately after the framing of the charge.  The wide and  extensive power which an appellate or revisional  court can  exercise  in this regard has also the  support  of  the Privy Council.  Lord Porter who delivered the opinion of the Judicial  Committee  in  Thakar  Sahab  v.  Emperor(1)   had occasion  to point out that while the history of the  growth of  Criminal Law in England its line of development and  the technicalities  consequent thereon would have made  it  more difficult  and may be impossible to justify a  variation  of the charge, Indian Law was subject to no such limitation but is governed solely by the Penal Code and Criminal  Procedure Code.   In  that  case the Privy Council was  called  on  to decide  whether  the  alteration  of  the  charge  and   the conviction  from  one of abetment of  forgery  by      known person  or  persons  to abetment of forgery  by  an  unknown person or persons vitiated the conviction.  It was held that it  did  not,  because an Appellate Court  had  wide  powers conferred  upon it by section 423 and in particular by  sub- section  (1)(a) of that section, which is "always of  course subject to the limitation that no course should be taken  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

reason of which the accused may be prejudiced either because he (1)  [1943] P.C.192. 749 is  not fully aware of the charge made or is not given  full opportunity  of meeting it and putting forward  any  defence open to him on the charge finally preferred." In  this case Shri Chari contends that : (1 ) what the  High Court should have done if it found that interest of  justice required  it either to have recorded the evidence itself  or to have asked the trial court to record it and send it back, but  it  cannot refuse to give a finding on the  charge  for which  he was convicted and (2) that the prosecution  having proceeded with the trial on the charge framed and not having asked  for  an  amendment  at  that  stage  cannot  ask  the appellate  court to amend or add to the charge.  It  appears to us that both these contentions are based on a  misreading of the order of the High Court.  As already pointed out  the learned  Judge of the High Court did not intend nor  did  he direct a new trial in the sense that it is contended he  had done.   There was in fact no retrial directed, but  only  an opportunity  was given to the accused to  safeguard  himself against any prejudice by giving him an opportunity to recall any  witnesses and adduce any evidence on his  behalf.   The appellant has also understood the order not as a retrial  is clear  from ground (f) of the Special Leave  Petition  filed before us.  It is therefore not necessary for us to  examine the scope and extent of the power or circumstances in  which a  retrial  should be ordered.  The  complainant’s  Advocate Shri  Tarkunde in fact said and even now submits  before  is that  he  does not want to lead any evidence  and  would  be satisfied  on the same evidence to sustain a  conviction  on the  amended  charge, nor does the  alternative  charge  now framed requires him to answer a charge against him of a  new offence  which  would cause prejudice.   The  offence  ’With which  he  is now charged alternatively is the  same  namely under Section 406 but as the entire transaction was one  and indivisible he is not only required to answer the charge  of misappropriation   of   money   but   in   the   alternative misappropriation   of  goods  which  the  complainant   Bank contends  became  their’s as soon as the  accused  purchased them with the moneys it advanced.  In our view no  prejudice is  caused or is likely to be caused to the accused  by  the amendment of the charge as directed by the High Court. It  was  again contended that the High Court ought  to  have considered whether there was a prima facie case against  the accused  to  justify  the  framing  of  the  amended  charge particularly  when  it took the view that the  first  charge could  not be sustained.  We do not think the learned  Judge expressed any view as to the maintainability or otherwise of the  conviction,  but thought there should  have  also  been framed  an alternate charge in respect of the goods.  It  is true that the court did not give any reasons as 750 to why it thinks there was a prima facie case, but being  an appellate  court perhaps it was anxious to avoid  giving  an impression that it has taken any particular view on the evi- dence.  The accused raised no ground on this account in  the Special  Leave Petition, nor do we think on this account  we should interfere with the judicial exercise of discretion of the  learned Judge in framing the charge and in  giving  the accused  an  opportunity to recall any witnesses  or  adduce fresh  evidence  on his behalf.  If no  objection  could  be taken  to the trial Court in framing the original charge  it is  difficult to see how an objection can be taken  at  this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

stage  to  the framing of an alternate charge  on  the  same allegation in the complaint. The appeal is accordingly  dismissed. Y.P.                         Appeal dismissed. 751