minal Appeal No 264 of 1972
Appeal by special leave from the judgment and order dated March 6 1972 of the Bombay High Court at Bombay in Cr A No 164 of 1972
M N Sharma for the appellant
section B Wad and Rine Sachthey for the respondent
The Judgment of the Court was delivered by DUA J
The appellant in this appeal by special leave was tried in the court of Session for Greater Bombay at Bombay for offences under section 467 under section 471 read with section 467 and under section 420 IPC
According to the prosecution the appellant was running an octroi clearing agency under the name and style of National Octroi Clearing Agency at the Mulund check post
He used to attend to certain transactions relating to the transport companies one of those companies being the Montgomery Transport Company
On December 16 1962 a truck belonging to the said transport company bearing No MPR 2147 arrived at the check post carrying a Depleix Machine to be delivered to Messrs Imperial Tobacco Company
There were two drivers and one cleaner in the truck
On being approached by them the appellant telephoned to manager Bakshi of the Transport Company to arrange for the payment of octroi which amounted to more than Rs 8000 
The Manager Bakshi and Director Inderjit Singh went to the Imperial Tobacco Company the following day and after getting Rs 8196 for the octroi reached the Mulund Check post
The amount was handed over to the appellant in the presence of the driver
Actually only Rs 81 80 were required for the octroi with the result that Rs 16 were paid back to Messrs Imperial Tobacco Company by means of a cheque
During the investigation of another case arising out of an alleged forged receipt relating to octroi in respect of some imports by Messrs Pure Drinks PrivateLtd it came to light that proper octroi had not been paid on December 17 1968 in respect of the transaction in question in the present case
The Assistant Assessor and Collector Shri Karkhanis after sending his superintendent Govind Charan to the office of Messrs Imperial Tobacco Company he himself also visited the Company s office and they both felt that the receipt for the payment of octroi held by the said Company was not genuine
Having failed to trace the necessary relevant documents in the office files Shri Karkhanis lodged the complaint in February 1969 and a case 3 L761Sup
CI73 550 was registered After preliminary enquiry under Ch
XVIII Cr
PC the appellant was committed for trial to the court of Session
According tothe trial court the following points arose for determination  1
Whether it is proved that the receipt Article A is a forged document  2
Whether it is proved that it is the accused who forged that receipt with intent to commit fraud  3
Whether it is proved that the accused used this receipt as genuine knowing it to be forged  4
Whether it is proved that he cheated the Bombay Municipal Corporation as alleged  5
Whether it is proved that the accused cheated the Imperial Tobacco Co of India Ltd as alleged  The conclusions of the trial court on these points were 1
In the affirmative
Not proved
In the affirmative 4
In the affirmative
Not proved
 The evidence in this case is mainly if not wholly circumstantial and about 20 witnesses were examined including a handwriting expert
The trial court felt that the case required evaluation of the evidence of Bakshi PW 4 Inderjit Singh PW 18 and Handwriting Expert PW 17
Driver Balwant Singh was not examined in the case
The trial court in a lengthy judgment exhaustively discussed the evidence of these witnesses
It did not place implicit reliance either on Bakshi PW 4 or on Inderjit Singh PW 18 as indeed in the testimony of both of them the trial court found partly reliable and partly unreliable statements
The court did not feel inclined to hold that their evidence was wholly unreliable
On evaluation of the evidence of the Handwriting Expert the trial court felt that the receipt in question could not necessarily be held to have been forged by the appellant
After this  observation follows the following passage in the judgment I do not however feel that this earns an acquittal for him The direct charge regarding the forgery could be taken as not proved we will have however to weigh the other evidence for finding out whether he could have used the document which is necessarily a fogged docu ment as a genuine document
For this purpose we will have to appreciate the evidence of the two witnesses 551 about whom I have spoken quite a long time and we have also to appreciate the interval of time
What exactly the accused did within that half an hour when he took the money and returned will have to be surmised particularly in the absence of categorical evidence showing that the disputed receipt is executed by him
The evidence shows it is a forged receipt
It is not prepared at the counter
We may not be sure in finding out as to who wrote it
The accused may have had his associates it he himself has not written it
Considering the way in which counters are stated to be working considering the amount involved and the short time limit when the accused reappeared legitimate payment across the counter will have to be ruled out
That is not even suggested on behalf of the accused
He may have his own collaborators
If we accept the version which I do then it was this receipt which was in the hands of the accused that was given over to the driver and from there onwards it reached the firm Messrs Imperial Tobacco Co of India Ltd I feel the accused ought to be supposed to be aware that the real payment was made and what he carried could not be the real receipt
It is for this reason that I am feeling that the charge of using a forged receipt knowing it to be forged could be brought home to him The trial court thereafter dealt with the charges of cheating and ultimately convicted the appellant for offence under sections 471 read with 467 IPC and for an offence under section 420 IPC Under the former he was sentenced to five years  rigorous imprisonment and a fine of Rs 500 with six months  further rigorous imprisonment in case of default
Under section 420 he was sentenced to rigorous imprisonment for two years
The substantive sentences were directed to be concurrent
The appeal to the High Court was dismissed in limine with one word Dismissed
Before us on appeal by special leave the short point but one of vital importance to the appellant requiring our decision is whether the High Court was justified on the facts and circumstances of this case in unceremoniously dismissing the appeal in limine with one word Dismissed without making a speaking order indicating the reasons for the dismissal
The facts briefly stated by us and a close study of the lengthy judgment of the trial court quite clearly show that the appeal in the High Court did raise points which were not only arguable but were also substantial requiring critical scrutiny and serious appraisal and evaluation of the prosecution evidence and the circumstances of the case
The impor 552 tance of the opinion of the High Court on arguable points requiring consideration on appeal in that court when questions of fact or law are open to challenge by the appellant was emphasised more than 20 years ago by this Court in Mushtak Hussein vs The State of Bombay1 when Mahajan J as he then was observed at p 820  With great respect we are however constrained to observe that it was not right for the High Court to have dismissed the appeal preferred by the appellant to that court summarily as it certainly raised some arguable points which required consideration though we have not thought it fit to deal with all of them
In cases which prima facie raise no arguable issue that course is of course justified but this court would appreciate it if in arguable cases the summary rejection order gives some indication of the views of the High Court on the points raised
Without the opinion of the High Court on such points in special leave petitions under article 136 of the Constitution this Court sometimes feels embarrassed if it has to deal with those matters without the benefit of that opinion
 Since then in a series of decisions quite a number of them reported and several unreported this Court has consistently drawn the attention of the High Courts to the eminent desirability of giving an indication of their views on the points raised in arguable cases in accordance with the legal position enunciated by this Court
Such a course is normal in cases which raise fairly arguable questions of fact or law
In one of the latest decisions of this Court in K K Jain vs State of Maharashtra2 some of the earlier decisions were again noticed and it was considered necessary to repeat the emphasis laid on the necessity of recording reasons by the High Court for dismissing appeals raising questions which cannot be considered to be unsubstantial or not arguable
In that decision it was reiterated inter alia that reasons prevailing with the High Court for dismissing the appeal if recorded would have been of valuable assistance to this Court in finally disposing of the appeal on merits
Another advantage of recording such reasons
is that the accused appellant who may not always be present in court would have the satisfaction of knowing from the judgment that the points appropriately arising for consideration in his case were actually argued and only considered by the High Court while dismissing his appeal
This would inter alia tend to promote confidence of the parties concerned in our judicial process
in the present case had the High Court recorded its reasons for dismissing the appeal it would have better enabled the appellant s lawyer to consider the advisibility of appealing 1  2 AIR 1973 SC 243
553 under article 136 of the Constitution and after filing the appeal would have afforded valuable assistance both to the counsel appearing in this Court and to us in the final disposal of the appeal without feeling the necessity of remanding the case to the High Court for re hearing
The remand no doubt must result in further delay in the final disposal of the appellant s appeal in the High Court and this indeed is regrettable
But in the absence of the opinion of the High Court which that Court was under the law expected to record we are left guessing about the line of reasoning the High Court would have adopted after appropriate scrutiny of the evidence on the record
The appellant is entitled to have a proper decision on the points arising in his appeal by the High Court on due appraisal of the evidence in accordance with law
The legal position on the point in question has been authoritatively settled and declared by this Court and the same has been frequently reiterated in its decisions
The law reports are so full of them that it appears to us to be somewhat surprising that the counsel appearing in the appeal in the High Court Should have been unaware of it
It however does seem that the attention of the High Court was not drawn to these decisions for had that Court been apprised of the law as authoritatively declared by this Court it is inconceivable that the present appeal would still have been dismissed without indicating the reasons in support of it
Had the High Court recorded reasons the delay necessitated by this remand could have been avoided
But in the circumstances we have no option but to allow the appeal and remand  the case to the High Court for rehearing and deciding the appeal after considering the points raised and recording its reasons in accordance with law
We have taken care not to express any opinion on the merits of the case either way
It is hoped that this appeal would now be disposed of by the High Court expeditiously and without avoidable delay
section C Appeal allowed


Summary:
The appellant was running a Octroi Clearing Agency at Mulund Check Post  in the State of Maharashtra
He used to attend to certain transactions of Montgomery Transport Co also
On December 16 1968 a truck of the said transport company arrived at the Check Post with a machine to be delivered to Ms Imperial Tobacco Co The appellant informed the Manager of the Transport Company to arrange for the payment of Octroi which amounted to more than Rs 8000 
Accordingly a sum of Rs 8196 was handed over to the appellant in the presence of the Driver of the truck
It was found out after investigation that the receipt for the payment of Octroi held by the Imperial Tobacco Co was not genuine and on a complaint lodged by the Company the appellant was arrested and committed for trial to the Court of Sessions under section 467 471 read with section 467 and section 420 of IPC
The Trial Court convicted the appellant for an offence under section 471 read with section 467 1
P C and for an offence under section 420 1
The appeal to the High Court was dismissed in limine with the word dismissed
The point raised before this Court was whether the High Court was justified in dismissing the appeal in limine with one word dismissed without making a speaking order indicating the reasons for dismissal
Remanding the case to the High Court for rehearing
HELD  i The importance of the opinion of the High Court on arguable points requiring consideration in appeal in that Court when questions of fact or law are open to challenge by the appellant was emphasised more than 20 years ago by this Court in Mustaq Hussain vs The State of Bombay  Since then in a series of decisions this Court has consistently drawn the attention of the High Courts to the desirability of giving an indication of their views on the points raised in arguable cases in accordance with the legal position enunciated by this Court
552 AB ii In K K Jain vs State of Maharashtra AIR 1973 SC 243 it was reiterated that reasons before the High Court for dismissing the appeal if recorded would be a valuable assistance to this Court in finally dismissing of the appeal on merits
Another advantage of recording such reasons is that the accused appellant who may not always be present in the court would have the satisfaction of knowing from the judgment that the points appropriately arising for consideration in his case were actually argued and duly considered by this High Court while dismissing his appeal
In the prevent case since the High Court did not record its reasons for dismissing the appeal this court has no option but to remand the case to the High Court for rehearing and deciding the appeal after considering the points raised and recording its reasons in accordance with law
552 FG  553A 549 Mustaq Hussain vs State of Bombay   and K K Jain vs State of Maharashtra AIR 1973 SC 243 referred to