TMI Blog1965 (5) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... alf of the Company, sums of ₹ 300 and ₹ 240 respectively, from a firm Isaq and Son.,, and on 3rd May, 1958 a sum of ₹ 1502 from Bombay Fancy Stores, but failed to deposit these sums with the cashier. A complaint was accordingly filed against him in the Court of the Chief Presidency Magistrate, Calcutta on August 29, 1958. The charges were framed against him under s. 408 I.P.C. on July 16, 1959. The prosecution proved the receipt of the money by him and his failure to deposit it with the cashier. His defence was that he had deposited the amount and that the case was started against him as a counter-blast to a dispute between him and V. D. Srivastava, sales supervisor, who had taken away certain documents from him and in respect of which he had filed a case against Srivastava, S. N. Mukerjea, General Manager, R. C. Burman, Managing Director and others before the Police Magistrate, Alipore. On August 17, 1959 the appellant served through counsel on the complainant a notice to produce in court on August 20, 1959 the following documents (a) Sale Book (Mill Area) for 1958. (b) Collection Register from 2nd January, 1958 upto 15th July, 1958. (c) Challans for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly question was whether the accused had deposited the amount with the cashier of the Company. He held that the complainant had not been able to disprove the claim of the accused (appellant) that he had made the deposit. The learned Magistrate pointed out that some of the documents which the accused (appellant) had asked for were not produced by the complainant and the benefit of the doubt ought to go to the accused (appellant). The complainant then obtained special leave under s. 417(3) of the Code of Criminal Procedure from the High Court of Calcutta to appeal against the acquittal. The appeal was heard by S. K. Sen and A. C. Roy JJ. On June 28, 1962, the learned Judges ordered the production of the documents in question Ind the taking of additional oral evidence to prove the documents. The order is brief and it may be conveniently set out here : After hearing the arguments on both sides it appears to be necessary to take certain additional documentary evidence for arriving at a just decision in the case. The documents in question are the agency ledgers for 1958 relating to the selling agents Md. Isaq and Sons and Bombay Fancy Stores; and the collection book Part I of 1958 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against an order of acquittal can only be made to the High Court by the State Government or by a complainant (where the case started on a complaint) with the special leave of the High Court. The matters on which an appeal under the Code is admissible are stated in S. 418 and they are the same for the two kinds of appeals. Such appeals lie on a matter of fact as well as a matter of law (except in trials by July). The procedure for dealing with the two kinds of appellant's is identical and the powers of appellate, Courts in disposing of the appeals, though indicated separately in s. 423 are in essence the same. Under that section the appellate Court (which means the High Court in an. appeal against an order of acquittal.) may- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction (1) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal should be re- versed. No limitation should be placed upon that power unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. The appellant relies upon certain observations of this Court in the case of Abinash Chandra Bose (A.I.R. 1963 S.C. 316.). The accused in that case was prosecuted under s. 409, Indian Penal Code for Misappropriating an amount belonging to his client who was the complainant. Prosecution was based upon a letter said to be written by him which he stated was a forgery. No expert was examined by the complainant and the accused was acquitted. The High Court set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he circumstances of the case, that the accused should be put on his trial again....... It was pointed out that the Sessions Judge could have taken recourse to the power conferred by s. 428 and not ordered a retrial. Section 428 occurs in Chapter XXXI which deals with appeals. It speaks of any appeal under that Chapter and the word 'any' means every one of the appeals (no matter which) men- tioned in the thirty-first Chapter of the Code. Section 417(3) is in that Chapter and S. 428 clearly applied to the appeal which was in the High Court. It only remains to determine the limits (if any) of the jurisdiction and power of the appellate Court (here the High Court) in ordering additional evidence and whether the limits so determined were exceeded by the High Court in the present case. Mr. Chakravarti contends that the discretion under s. 428 is subject to the same conditions as those in s. 423 and which were laid down in Abinash Chandra Bose's case(A.I.R. [1963] S.C. 316.). He lays special emphasis on the condition that the prosecution should not be given a second chance to fill up the gaps in its case. He submits that this has been done here. Mr. Sarjoo Prasad on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al was obtained by fraud, or a trial for a wrong offence was held or abettors were tried as principal offenders and vice versa. Many other instances can be imagined. The Legislature has not chosen to indicate the limits of the power and this Court must not be understood to have laid them down. Cases may arise where either of the two courses may appear equally appropriate. Since a wide discretion is conferred on appellate Courts, the limits of that Court's jurisdiction must+ obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt some analogy between the power to order a retrial ind the power to take additional evidence. The former is an extreme step approximately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section. Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here. We do not propose to do what ..... X X X X Extracts X X X X X X X X Extracts X X X X
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