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PETITIONER: VASUDEO KULKARNI

       Vs.

RESPONDENT: SURYAKANT BHATT & ANR.

DATE OF JUDGMENT02/03/1977

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. SHINGAL, P.N.

CITATION:  1977 AIR 1331            1977 SCR  (3) 109  1977 SCC  (2) 304

ACT:              Practice  and  Procedure--Trial  Court  acquitted   the         accused--High  Court-When  could reverse the  Trial  Court’s         finding.

HEADNOTE:             The complainant’s (the first respondent) father entrust-         ed  certain civil suits to the appellant, who was a  lawyer.         The  complainant  was a junior under the  appellant.   In  a         complaint lodged with a Magistrate it was alleged  that   by         making  a false representation to him that he had  deposited         in  the  Court certain sum towards costs in  the  suit,  the         appellant  had  collected from him  (the  complainant)  some         money.  Later, in consequence of a compromise  between   the         parties the appellant returned the sum to the  complainant’s         father  by a crossed cheque.  Even so the complainant  filed         the complaint.  The trial court found that it was a case  of         accounting  between the parties and that being a  matter  of         civil  nature, acquitted the appellant.  The High  Court  on         the   other  hand reversed the acquittal and  convicted  and         sentenced him under s. 420 I.P.C.         Allowing the appeal to this Court,             HELD:  The  High Court had no reason whatsoever  in   an         appeal   against acquittal to interfere with the  conclusion         reached  by  the  trial court,  which is  justified  on  the         evidence.  The High Court was clearly wrong in spelling  out         dishonest  intention on the part of the appellant, taking  a         view different from that of the trial court.  [106 E]             (a)  Although in an appeal against acquittal.  the  High         Court  may reappreciate for itself the entire  evidence  and         reach its own conclusion, it is well-settled that, when  the         conclusion is contrary to that of the trial court, the  High         Court has a further duty to satisfy itself that the  grounds         given by the trial court for acquittal are palpably wrong or         manifestly  erroneous.  That, as  an  original court  trying         the  case  for  the first time, the High  Court  would  have         entered  a  verdict  of conviction, is not the  test  in  an         appeal  against acquittal.  This is not a case where  it  is         even  remotely  possible  to characterise  the  reasons  for         acquittal  as palpably and unerringly shaky, in  which  case         alone, there would be justification for interference by  the         High  Court.  The reasons given by the High Court should  be

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       demonstrably cogent and weighty.  [107 E; G]             (b)  The  High  Court has failed to take  count  of  the         relationship between a client and a lawyer which is a  chain         of  mutual  adjustments  of  accounts.  A  lawyer’s  account         should  be clear and clean and above suspicion of  manipula-         tion  yet there may arise some omissions and commissions  in         the  account  which cannot give rise to a  criminal  charge.         [106 G]             In  the  instant case, the complainant lodged  the  com-         plaint  even  without the knowledge of his  father  who  had         already  received  the amount in dispute.   The  appellant’s         relationship  with  the  complainant’s father  was  that  of         lawyer and a client and anything outstanding from one or the         other party was a  matter  of accounting between them.   The         complainant  had no part to play on his own and he  prosecu-         tion of the appellant even without examining his father as a         witness  was unauthorised and uncalled for.  There  was  ac-         counting  between  the parties and even  the  correspondence         showed  that  there had been adjustments between  ’hem  from         time  to time.  That being the position dishonest  intention         which is he principal ingredient of an offence under s.  420         is lacking in this case. [105 E&G]

JUDGMENT:             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  23         of 1972.         103             (Appeal  by Special Leave from the Judgment  and   Order         dated  22-10-1971 of the Madhya Pradesh High  Court  (Indore         Bench) in Crl. A. No. 291 of 1970).         R.L. Kohli, R.C. Kohli and A. G. Ratnaparkhi, for the appel-         lant.         M.K. Khan and S.K. Dhingra, for respondent No. 1.         Ram Panjwani and H.S. Parihar, for respondent No. 2.         The Judgment of the Court was delivered by             GOSWAMI,  J.  The appellant, an advocate  of  25  years’         standing, was charged under section 420, Indian Penal  Code.         He was acquitted by the trial court holding the matter to be         of civil nature. The High Court of Madhya Pradesh on  appeal         at  the  instance of the complainant (the  first  respondent         herein) set aside the acquittal and convicted the  appellant         under section 420 IPC and sentenced him to rigorous  impris-         onment for two years and to a fine of Rs. 600/-, in  default         further rigorous imprisonment for six months.             The  complainant  is the son of one Dinubhai,  a  senior         partner  of Dinubhai & Co., with its head office  in  Bombay         and  a  branch office in Indore.  There were  two  partners,         namely, the complainant’s father and one M.C. Mehta.   Mehta         ceased to be a partner in the firm with effect from July  5,         1960.   A civil suit was instituted by Dinubhai against  Nai         Duniya,  Indore,  a daily newspaper, impleading  M.C.  Mehta         also as a co-defendant.  The suit Was  decreed  against  Nai         Duniya  but  was  dismissed against M.C.  Mehta  with  costs         amounting to Rs. 612/- awarded to him.  The complainant  was         acting as a junior to the appellant in this suit as well  as         in several other suits filed by the firm against others.  It         is  alleged by the complainant that about February 8,  1965,         the  appellant  made  a demand from him,  along  with  other         amounts,  of a sum of Rs. 612/- being the costs  awarded  to         Mehta in the aforesaid suit by making a representation  that         he  had  already deposited the amount in court from his  own         funds.   Depending upon this statement, the  complaint  pro-         ceeds,  the complainant paid a sum of Rs. 1000/-  which  in-

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       cluded the amount of Rs. 612/- towards the costs awarded.             The  firm appealed against the decree and it  appears  a         compromise was entered with Mehta whereby Mehta relinquished         his  claim for costs of Rs. 612/-.  This happened  on  March         10,  1967.   On  that very date the  appellant  returned  to         Dinubhai  the sum of Rs. 612/- by a crossed  cheque  stating         that "this appeal is just now disposed of by the Honble High         Court, Indore.  I am, therefore, expected to remit this  sum         to you".  Even so, the complainant, Dinubhai’s son.,  lodged         a  complaint in the court of the Additional District  Magis-         trate,   Indore   City,  on September 21, 1967,  bringing  a         charge of cheating against the appellant by citing the  only         witness in the complaint being the Record Keeper of the High         Court.   Dinubhai, his father, was not even mentioned  as  a         witness  in the complaint nor was he later examined  in  the         case.          8--240SCI/77         104             In  the trial the complainant examined himself  and  one         Vijaykumar,  a  clerk in the office of the High  Court.  The         latter  has proved from the records of the first  appeal  in         the  High  Court that the costs of Rs.  612/awarded  to  the         defendant,  Mehta,  in the suit had not  been  deposited  on         behalf of the complainant’s father, Dinubhai.             The  complainant  reiterated  his  allegations  in   the         complaint  and further stated that after the compromise with         Mehta  which had taken place on March 10, 1967,  he  perused         the  record of the case and came to know that the  appellant         had  not  deposited any money of the costs to Mehta  in  the         court.  He, however, admitted that after the compromise  the         appellant  had sent a cheque of Rs. 612/- to his  father  at         Bombay.             In  the  course of cross-examination his  attention  was         invited  to his following statement given before the  Magis-         trate  under  section  200, Criminal Procedure Code:                             "Thereafter when Shri V.V. Kulkarni told                       me  the aforesaid thing I knew and had  knowl-                       edge of the fact that he had not deposited Rs.                       612.00  in  the court.   Still  Shri  Kulkarni                       deceitfully demanded Rs. 612.00 from me".         In  the  printed  paper-book before this Court  at  page  3,         paragraph  6  there  is an error in adding  the  word  "not"         before the word "knowledge". This is clear from the original         High Court paper-book which we have examined.             The  trial court found that it was a case of  accounting         between  the parties and was a matter of civil nature.   The         trial court thus acquitted the appellant.  The High Court on         appeal,  as  mentioned earlier, reversed the  acquittal  and         convicted and sentenced the appellant under section 420 IPC.         Hence this appeal by special leave.             The  complainant,  who had earlier quarrelled  with  his         father  and  later for some reason or other  parted  company         with the appellant, who was his senior, lodged the complaint         even  without  the knowledge of his father who  had  already         received  the amount of Rs. 612/- for which the  complainant         was said to have been cheated.  The  statements  of accounts         filed  in the case clearly show that at different times  the         firm  was  liable to pay certain expenses and  fees  to  the         appellant and at other times the appellant was holding  some         money on client’s account.  The letter of Dinubhai (Ex. D-8)         dated  October  27, 1966, to the appellant is  revealing  in         this respect.  The letter states, inter alia, that--                             "indeed  you  have worked and  you  must                       receive your fees. There may be lot of  recov-                       eries now due and may I request you to recover

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                     your fees out of the recoveries.                             You  are aware that I have  ventured  to                       put Suryakant with your support at Indore  and                       there  can  be no idea ever  in  existence  to                       offend  you.  I think we are best friends  and                       there should be no hitch in that at all.                       X   X    X          X                       105                             May  I therefore request you  to  please                       carry  out  all the recovery  proceedings  and                       take  all your dues you think reasonable  from                       the amounts so recovered".         Similarly the letter from the complainant (Ex. D-39) to  the         appellant  of March 29, 1967, written under instructions  of         Dinubhai  was  as follows :--                          "(1)  That  you  have  submitted  the  last                       statement of account on 16-8-1966 showing  the                       cash  on  hand  of Rs. 488.60P remaining  with                       you for future expenses.                           (2)  My  client paid to   you   Rs.  300/-                       (Rupees   three hundred) on  3-1-1967.   Thus,                       you  had  Rs. 788.60P  (Rupees  seven  hundred                       eighty eight and Np. sixty) cash on hand  with                       you.                           (3)  It  is,  therefore,  requested   that                       kindly give the detailed statement of  account                       to  my client, as it is required for the  pur-                       poses of Income tax".         On  the top of that we find from the copy of  the  complaint         (Ex. D-10) in Civil Suit No.. 8 of 1968 B filed by  Dinubhai         against  the  appellant  on February 16,  1968,  claiming  a         decree  for the amount of Rs. 11492,85  after  acknowledging         the receipt of Rs. 612/-, the subject matter of the cheating         case  (para  3 of the plaint).  It  is,  therefore,  crystal         clear  that the appellant’s relationship with the  complain-         ant’s father was that of a lawyer and a client and  anything         outstanding  from  one or the Other party was  a  matter  of         accounting  between  them.  The complainant has no  part  to         play  on his own and his prosecution of the  appellant  even         without  examining  his father as a  witness  is  absolutely         unauthorised and uncalled for.             Even  the  receipt (Ex. P-1) upon which the  High  Court         principally relied goes to show that a sum of Rs. 350.90 had         already been spent by the appellant and it is only on Febru-         ary  11, 1965, the date of the receipt, that this money  was         received by him from the complainant on behalf of  Dinubhai.         Even this receipt (Ex. P-1) shows that a round figure of Rs.         1000/-  was paid to him leaving Rs. 37.10 as "cash  for  ex-         penses".   By no stretch of imagination it can be said  that         any deception was practised upon the complainant on February         11,  1965, when the latter parted with one  thousand  rupees         including the amount of Rs. 612/- towards the costs  payable         to  Mehta.   Apart  from this  the costs  of  Rs.  612/-were         indeed a liability of Dinubhai to Mehta and not a fictitious         claim.   There was accounting between the parties  and  even         the  correspondence shows that there have  been  adjustments         between  the  parties  from time to time.   That  being  the         position dishonest intention which is the principal ingredi-         ent  of an offence under section 420 IPC is lacking in  this         case.             Even  on  merits it is clear that after receipt  of  the         statement  of  account from the appellant  on  February  10,         1965,  the  complainant knew quite well that there had  been         no deposit of Rs. 612/- as costs in         106

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       the  court.  There was, therefore, no occasion for making  a         statement to the complainant to represent that the appellant         had  already deposited Rs. 612/- in the court on account  of         the costs payable to Mehta. Apart from that since the amount         was actually payable by the firm to Mehta, there was no need         for making any representation to the complainant for obtain-         ing  this amount.  It is even  probable  that   this  amount         had  been  received towards payment of  costs  even  without         making  any representation as alleged.  The High  Court  has         unnecessarily  given  exaggerated importance  to  the  typed         receipt   (Ex.  P-1 )  of February 11, 1965, signed  by  the         appellant  wherein  against the amount of Rs. 612/-  it  was         recited  that "the costs of Shri Mehta in the matter of  Nai         Duniya, deposited by me in the court from my person".  It is         suggested  by the appellant in the course of  cross-examina-         tion  of the complainant that this receipt was got typed  by         the  complainant  and the appellant only signed it  in  good         faith in the usual course.  The complainant, however, denied         the suggestion.  There is also no evidence to show as to who         typed  the receipt or who even dictated the contents in  the         receipt.  Whatever be the actual position, we are  not  pre-         pared  to hold that the complainant’s allegation  of  wilful         and  dishonest  representation by the appellant  is  at  all         corroborated  by  the recital in the receipt. On  the  other         hand,  the history of the relationship between  the  parties         together  with what has been set out above from  the  corre-         spondences  clearly  lead to the conclusion that  the  trial         court  was  perfectly  justified in holding that  it  was  a         matter of civil nature and the offence under section 420 IPC         was not at all established.             The  High Court, therefore, had no reason whatsoever  in         appeal  against acquittal to interfere with this  conclusion         which  is clearly justified on the evidence. This is a  case         in  which the High Court was clearly wrong in  spoiling  out         dishonest  intention on the part of the appellant  taking  a         view different from that of the trial court.             It is not likely at all that the amount of Rs. 612/- was         paid  because  of any representation by  the  appellant  but         because  the same  was  a known liability of  the  complain-         ant’s father as costs in favour of Mehta. What was grievous-         ly  missed by the High Court is that the transfer  of  money         from  the  complainant to the appellant was not for  a  fake         cause, nor did the passing of the money depend crucially  on         the  representation, assuming it was made, that  the  amount         had  been  already  deposited by the appellant  out  of  his         personal  funds.   The High Court has positively  failed  to         take  count of the relationship between the client  and  the         lawyer  which was a chain of mutual adjustment  of  accounts         involving  ascertainment  of  fees and  all  legitimate  and         sundry  expenses. It is true that a lawyer’s account  should         be  clear and clean and above suspicion of manipulation  but         that  there may arise some omissions and commissions in  the         account  cannot  give rise to a criminal  charge  for  which         strong and unimpeachable proof will be necessary.             Principally  the  trial  court entered  the  verdict  of         acquittal on the ground that "the position was very clear to         the complainant that no deposit towards the costs awarded to         M.C.  Mehta had been made by the accused" and "as  such  the         possibility that the complainant was fully aware of the real         position about the alleged deposit cannot be ruled         107         out". The above conclusion of the trial court rests on  the’         complainant’s  position  as a junior  lawyer  assisting  the         appellant  in  the particular suit and in other  eases;  the         complainant’s  own  admission before the Magistrate  in  his

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       statement  recorded  under section 200,  Criminal  Procedure         Code  that he (complainant) "knew and had knowledge  of  the         fact that he (the appellant) had not deposited Rs. 612/-  in         the  court";  and the statement of account  of  February  9,         1965,  received  by the complainant on  February  10,  1965,         showing  that  the deposit of Rs. 612/- had  not  been  men-         tioned.             It is, therefore, impossible for the High Court to hold,         on  the evidence on record, that "it is difficult  to  agree         with  the learned Magistrate that Suryakant must have  known         and  did actually know that no deposit had been made".   The         High  Court even did not refer to the statement of the  com-         plainant  in his initial deposition which was put to him  in         the course of cross-examination.             The  Magistrate also gave importance to. the  fact  that         the  complainant’s  father, on whose behalf alone  the  com-         plainant  was  acting, should -not have been examined  as  a         witness.   The Magistrate also considered the unusual  delay         in lodging the complaint as one of the grounds for "treating         their real controversy to be of civil nature".             It is true that in an appeal against acquittal, the High         Court  may reappreciate for itself the entire  evidence  and         reach  its  own conclusion, but it is  equally  well-settled         that  when  the said conclusion is contrary to that  of  the         trial  court, the High Court has a further duty  to  satisfy         itself that the grounds given by the trial court for acquit-         tal  are  palpably wrong or manifestly  erroneous,  shocking         one’s  sense of justice.  That, as an original court  trying         the  case  for  the first time, the High  Court  would  have         entered  a  verdict  of conviction, is not the  test  in  an         appeal against acquittal.  The High Court spelt out  dishon-         est  intention from the appellant’s refund of the amount  by         cheque on March 10, 1967, on  settlement between the parties         in  appeal.  This is an entirely wrong approach as the  mens         rea  for the charge of cheating has to be considered on  the         date of the fraudulent or dishonest representation which was         allegedly on February 8, 1965, two years earlier.             Having examined the reasons given by the trial court for         the  acquittal and having ourselves perused the entire  evi-         dence,  we  are clearly of opinion that this is not  a  case         where  it  is  even remotely possible  to  characterise  the         reasons  for acquittal as palpably and unerringly shaky,  in         which case alone, there would be justification for interfer-         ence by the High Court.  We are also unable to say that  the         reasons given by the High Court are demonstrably cogent  and         weighty to enable it to interfere with the acquittal.             At the conclusion of the argument by Mr. Khan on  behalf         of  the complainant pressing for conviction of  the   appel-         lant,  Mr. Panjwani,         108         appearing  on  behalf of the State, fairly enough,  did  not         think it properto support the judgment of the High Court.             In the result the appeal is allowed. The judgment of the         High Court is set aside.  The appellant who has been on bail         shall be discharged from his bail bond.         P.B.R.                                  Appeal allowed.         109