Harihar Chakravarty vs The State Of West Bengal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 22 October 1953

Coram: Bhagwati

In this case, the Court recorded that the matter was an appeal by special leave from the judgment of Mr. Justice K. C. Chunder of the Calcutta High Court in Criminal Revision No. 84 of 1952, which had set aside an order of acquittal issued by the Presidency Magistrate, Calcutta in Case No. C/639 of 1951. The appellant had served as the Agent of the Calcutta branch of Loyal Bank Ltd. from September 1938 until January 1948. The complainant, identified as Kshitish Chandra Mukherji, had opened an account with that bank around 1946 and had carried out certain transactions in shares and securities through the stockbrokers J. M. Dutta of Calcutta. According to the complainant, the shares and securities were bought and sold on his personal instructions, which he gave to the appellant; the purchase price and the sale proceeds were to be debited or credited, as appropriate, to his account. By April 1946 the complainant possessed two hundred shares of Burmah Corporation and two hundred shares of B. B. Petrol, and it was his claim that, after leaving Calcutta towards the end of March 1946, he entrusted those shares to the appellant and did not return to the city until the middle of June 1948. During the intervening period the bank experienced financial difficulties and was unable to honour two cheques presented by the complainant—one dated 6 March 1948 for Rs. 348 and another dated 23 June 1948 for Rs. 17,000. On 26 August 1948 the complainant obtained a certified copy of his account statement and, on examining it, discovered that on 14 August 1946 an amount of Rs. 10,500, representing the price of fifteen shares of Baranagar Jute Mills, had been debited to his account. Consequently, on 27 March 1951 the complainant filed a complaint before the Court of the Additional Chief Presidency Magistrate, Calcutta, alleging that the appellant and Dinesh Majumdar, an accountant of the bank, had committed offences punishable under Sections 409, 406, 477A and 114 of the Indian Penal Code. The allegations stated that the complainant had never given any instruction—whether written or verbal—to the appellant to purchase those fifteen Baranagar Jute Mills shares, that he had never purchased the shares, and that the appellant together with Dinesh Majumdar had misappropriated the sum of Rs. 10,500 which had been lying in his account, and had also failed to sell the four hundred shares that had been entrusted to him. The complaint further asserted that, acting as a banker, the appellant, with the assistance of Dinesh Majumdar, an officer of the bank, had falsified the bank’s books to misappropriate the money and the shares. The Magistrate examined the complainant and his witnesses, and on 6 September 1951 the complainant testified that he had never issued any written or verbal instruction to the appellant to purchase the fifteen Baranagar Jute Mills shares and that the appellant, aided by Dinesh Majumdar, had misappropriated Rs. 10,500. The allegation concerning the alleged misappropriation of the four hundred shares was not pursued further. On the basis of that evidence, the Presidency Magistrate framed a charge against the appellant under Section 409 of the Penal Code for criminal breach of trust committed on 14 August 1946 by misappropriating the sum of Rs. 10,500. The appellant then presented his defence, cross-examined the prosecution witnesses, and put forward his own witnesses. After evaluating all the evidence, the Magistrate concluded that the fifteen Baranagar Jute Mills shares had indeed been purchased pursuant to the complainant’s definite instructions. Accordingly, the Magistrate acquitted both the appellant and Dinesh Majumdar.

In the trial before the Presidency Magistrate, the complainant asserted that he had never instructed the appellant to purchase fifteen shares of the Baranagar Jute Mills and that the appellant had misappropriated a sum of ten thousand five hundred rupees, with the assistance of Dinesh Majumdar. The complainant did not press any charge concerning the alleged misappropriation of four hundred shares. On the basis of this testimony, the Magistrate, on 6 September 1951, framed a charge under Section 409 of the Penal Code against the appellant, alleging that on 14 August 1946 the appellant had committed criminal breach of trust by misappropriating the specified sum of ten thousand five hundred rupees. The appellant then presented his defence, cross-examined the prosecution witnesses, and called his own witnesses. After evaluating the evidence, the Magistrate concluded that the fifteen Baranagar Jute Mills shares had indeed been purchased pursuant to the complainant’s explicit instructions. Relying on this finding, the Magistrate acquitted both the appellant and Dinesh Majumdar of the Section 409 charge. Dissatisfied with the acquittal, the complainant applied to the Legal Remembrancer of the Government of West Bengal for permission to appeal under Section 417 of the Criminal Procedure Code. The Legal Remembrancer declined, holding that the case was not suitable for a State-initiated appeal. Consequently, the complainant filed a petition for revision on 28 January 1952, identified as Criminal Revision Case No. 84 of 1952, seeking to set aside the acquittal and to direct a retrial on the same record. A rule was issued on that date by Justice N. Guha Roy, and the matter was heard for final disposal before Justice K. C. Chunder on 10 June 1953.

The learned Judge affirmed the earlier finding that the fifteen Baranagar Jute Mills shares had been bought by the Loyal Bank using the complainant’s funds and consequently belonged to the complainant. Because the charge had been framed against the appellant for an alleged breach of trust concerning those shares, the Judge held that no criminal breach of trust existed, thereby supporting the appellant’s acquittal. Nonetheless, the Judge observed that “the charge was not properly framed.” According to the Judge, the real dispute involved the fact that the shares, which belonged to Kshitish, had been pledged to the Nath Bank in contravention of the trust under which the bank held them. Thus, the criminal breach of trust issue should have focused on the disposal of the shares to the Nath Bank and whether the appellant, Harihar Chakravarty, had carried out that disposal. The Judge noted that evidence should have been obtained from the Nath Bank to determine the circumstances of the pledge and the identity of the party responsible for the alleged misappropriation.

The judge noted that the evidence required to determine the exact time and the person who had pledged the shares was missing, and therefore ordered an extraordinary procedural step. He directed that the charge be amended to state that the case concerned a criminal breach of trust arising from the disposal of the fifteen Baranagar Jute Mills shares to the Nath Bank. Accordingly, the judge set aside the earlier order of acquittal and directed that the matter be remanded to the Presidency Magistrate for further consideration, but only with respect to the appellant, after the charge had been properly amended and after the correct evidence could be taken. The order thus issued constitutes the subject of the present appeal. This proceeding was a private prosecution in which the complainant alleged that he had never instructed the appellant to purchase the shares, that the shares therefore did not belong to him, and that he possessed no interest or title in them. In reality, the complainant’s claim that the shares were never bought on his instructions was found to be false; the findings established that he had indeed directed the purchase and that the shares were his property. By amending the charge, the learned judge effectively required the complainant to abandon his original narrative regarding ownership and to pursue a distinct offence that could only arise from a different factual situation after the purchase. Although the appellant might or might not be liable for that separate offence, he was unquestionably innocent of the offence for which he had been originally charged, tried, and acquitted. The judge therefore lacked authority to overturn the acquittal once he had already accepted that the appellant was not guilty of the charged offence. Under Section 258(1) of the Criminal Procedure Code, when a charge is framed and the accused is found not guilty, an acquittal must be recorded and no alternative remedy exists; consequently, the order setting aside the acquittal was invalid. Regarding the direction to alter the charge to include an offence not originally alleged, such a change could only be made by the trial court under Section 227 of the Criminal Procedure Code before delivering its judgment, and only if the complaint or the evidence contained material justifying the addition. The present complaint offered no such material, as it was based solely on the allegation that the shares did not belong to the complainant and were never purchased. The learned judge observed that the contention was that the shares belonged to the complainant and were …

In this case the Court observed that the allegation that the appellant had dishonestly pledged the shares to the Nath Bank was not found in any part of the original complaint nor in the examination of the complainant. The record contained no reference whatsoever to any dishonest conduct relating to the shares. The only material placed before the Court consisted of the testimony of one Phanindra Nath Bose, identified as witness number five, and the two documentary exhibits labeled 14(1) and 15(1). Those pieces of evidence together demonstrated that the dividends on the shares in question had been credited to an account held by the appellant in the Nath Bank. No phrase or statement in either the complaint or the evidentiary material suggested that the appellant had received the dividend payments by fraudulent means, in contravention of any legal directive, or in violation of any contract. The Court stressed that dishonesty could not be presumed on the basis of silence; instead a person must expressly allege misconduct, accept responsibility for that allegation, and be prepared to face the consequences should the allegation prove false. Because the record lacked any such allegation or supporting material, the Trial Court was without a factual basis on which to amend the charge under Section 227 of the Criminal Procedure Code. Consequently the learned Judge possessed no authority to order an amendment of the charge or to continue the trial as he attempted to do. The Court further reiterated the principles set out in the earlier decision of D. Stephens v. Nosibolla, noting that the revisional jurisdiction conferred on a High Court by Section 439 of the Criminal Procedure Code is to be employed sparingly, especially when invoked by a private complainant against an acquittal that the Government may appeal under Section 417. Such jurisdiction may be exercised only in exceptional circumstances where public-interest considerations demand correction of a clear illegality or prevention of a gross miscarriage of justice, and not merely because a lower court may have erred in law or mis-appreciated the evidence. After reviewing the materials, the Court found no justification for the order previously made by the learned Judge. Accordingly, the Court set aside that order, restored the order originally passed by the Presidency Magistrate, Calcutta, and directed that the appellant be acquitted in accordance with Section 258(1) of the Criminal Procedure Code.