Criminal Appeal No 24 of 1972
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 29270
RL Kohli RC Kohli and AG Ratnaparkhi for the appel lant
MK Khan and SK Dhingra for respondent No 1
Ram Panjwani and HS Parihar for respondent No 2
The Judgment of the Court was delivered by GOSWAMI J
This appeal by special leave is directed against the judgment of the High Court of Madhya Pradesh convicting the appellant under section 409 Indian Penal Code and sentencing him to one 110 year s rigorous imprisonment and to a fine of Rs 250  in default further rigorous imprisonment for three months in appeal against acquittal at the instance of the complainant first respondent herein
The appellant is a senior lawyer of 25 years  standing in Indore and the complainant was acting as his junior
The complainant s father Dinubhai was the senior partner of a firm of Chartered Accountant Ms Dinubhai  Co with its registered office in Bombay and a branch office in Indore
The Indore office was looked after by the second partner MC Mehta
It appears that the firm was dissolved on July 5 1960 when Mehta ceased to be a partner and Dinubhai appointed the appellant as counsel and attorney for filing suits and for recovering dues from various parties
Dinub hai filed a suit being suit No 13 of 1962 for recovery of Rs 12500 in the court of the Third Additional District Judge Indore impleading MC Mehta and one Chandulal Shah as defendants in that suit
Although the suit was decreed it appears there were two cross appeals against the decree in the High Court one by Dinubhai and the other by Chandu lal Shah
The appellant was appearing for Dinubhai in both the appeals
He received some amounts in advance from Dinubhai and submitted a statement of account of Shri Dinubhai exhibit P 1 dated February 9 1965 wherein two items namely Rs 210 and Rs 110 were mentioned as being towards paper book charges respectively on 21 4 1964 and 22 9 1964
The entry on 22 9 1964 shows that the amount of Rs 110 is one of several items mentioned therein as expenses incurred in the appeal flied by Chandu lal Shah against Dinubhai
So far as the items mentioned in exhibit P 1 on 21 4 1964 including the last item of Rs 210  there is no mention whether the expenditure was actually incurred on that date
The complainant was not pulling on well with his father for some reason or other and also parted company with his senior the appellant
He filed a complaint against the appellant on December 8 1967 making allegations under sections 409 468 and 474 IPC
Ultimately the appellant was charged under section 409 IPC with regard to the amounts of Rs 210 and Rs 110 which were mentioned in the statement of account exhibit P 1 received by the complainant on February 10 1965
The complainant examined himself and a clerk of the High Court to prove that no paper book charges were deposited on the dates mentioned in the ac counts
On the other hand a sum of Rs 2650 was deposited as paper book charges on March 18 1965 in the particular appeal
The appellant denied the charge and stated that there was a typing error in the accounts and the actual figures should have been Rs 211and not Rs 210  and Rs 10 and not Rs 110 
When the appellant s attention had been drawn to these amounts he admitted these to be typing errors and asked for adjustment of the amount of Rs 300 towards his fees in the case of Kothari Book Depot
It is rather curious that a criminal complaint should have been lodged against the appellant nearly three years after the receipt of the accounts by the complainant
111 The trial court acquitted the accused appellant herein by observing as follows  To sum up the prosecution has been launched after inordinate unexplained delay there is no clear and conclusive evidence of the criminal intention and dishonest mental act of the accused the real aggrieved person has not come with the complainant but has already sought the alternative remedy in Civil Court which is being already pursued
The question whether or not the adjustment made by the accused towards his fees was proper can more appropriately be decided by Civil Court
Accused having reasonable claim against the complainant for any equivalent sum of money his user of the disputed sum for his own purpose will not amount to criminal breach of trust
The High Court on the other hand held that the charge was established against the accused and set aside the ac quittal
The High Court held that the explanation of the accused did not appear to be true and therefore could not be accepted
It further held that it was clear that on the dates mentioned in the accounts no amounts were deposited as paper book charges in the High Court
The High Court con cluded as follows  Consequently it cannot be doubted that the respondent who as an agent of the com plainant s father was entrusted with the amounts showed false expenses and thereby kept the amounts with himself
In the face of these facts and also on the finding that the explanation given by the respondent cannot be accepted the respondent cannot escape con viction under section 409 IPC as that was the only charge framed against him by the trying Magistrate
The statement of account exhibit PI  as well as the correspondence between the appellant and the complainant s father who was client dearly show that there was mutual accounting and adjustment between them
The mere fact that certain amounts were in the hands of the appellant and the accounts submitted were incorrect would not lead to the inevitable conclusion that the appellant committed criminal breach of trust in respect of these items
The complainant who was a junior attached to him and was looking after his cases could himself easily find out the discrepancies in the accounts and in a normal course he would have drawn the attention of his senior on receipt of the statement of account in February 1965
The accused in his statement under section 342 Criminal Procedure Code stated inter alia as follows  Typing error has occurred in the statement of account of exhibit P 1
The differ ence of Rs 30000 which has occurred has been adjusted against my fees in Kothari Book Depot s case at the instance of Suryakant
I have given a receipt for it which is in possession of Suryakant
Surya kant used to maintain account of Court expenses of Dinub hai s cases in a register
That register is with Suryakant
112 Suryakant used to remain present in the court on each date along with me
He knows every thing
Nothing is concealed from him
There is Gadbad of money between Suryakant and his father
Hence on the instigation of other people this false case has been launched
Suryakant had got typed the statement of account exhibit P I from the register
On one side we have the solitary statement of the complainant
Even his father is not there to corroborate him or even to show that he authorised him to file the com plaint
As against his statement we have the explanation of the appellant
The trial court who had an opportunity to see the complainant giving evidence did not choose to rely on his version of the case and preferred to accept the explanation of the appellant
In this state of the evidence we fail to see how the High Court in an appeal against acquittal thought it possible to hold the charge as proved
While the complaint was filed on December 8 1967 a few months earlier on May 16 1967 a lawyer s notice was ad dressed to the appellant on behalf of Dinubhai
We may extract the following passage from that letter My client has instructed me to call upon you to remit to him the balance of Rs 1700 lying with you after deducting your fees of Rs 3300 from the amount of Rs 5000 paid to you within 24 hours of the receipt of this reply otherwise my client will not only place the matter before the Bar Council of MP but if so advised will also file a suit for its recovery against you at your cost and consequences which please note
This would clearly show that neither Dinubhai nor his lawyer ever thought of attributing any dishonest intention or criminal intent to the appellant
In view of this letter it is not possible to accept the sole testimony of the complainant imputing dishonest intention on the part of the appellant
We are clearly of opinion that there was no sufficient ground for the High Court to interfere with the acquittal in this case when the reasons given by the trial court were weighty and cogent and there was no compelling justification to take a contrary view
At the conclusion of the argument by Mr Khan on behalf of the complainant pressing for conviction of the appellant Mr Panjwaniappearing on behalf of the State fairly enough did not think it proper to 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 shall be dis charged from his bail bond
PBR Appeal allowed


Summary:
The appellant was a lawyer under whom the complainant first respondent was a junior
The appellant was engaged as counsel in certain cases by the complainant s father
The appellant submitted statement of accounts to the complain ant s father in respect of the sums spent by him in the suits
After a lapse of three years the complainant filed a complaint against the appellant making allegations under sections 409 468 and 474 IPC The trial Court acquitted him holding that the prosecution had been launched after inordi nate delay and that there was no clear and conclusive evi dence of criminal intention and dishonest mental act on the appellant s part
The High Court on appeal set aside the acquittal holding that the appellant s explanation in regard to the discrepancies was not true and could not be accepted
Allowing the appeal to this Court HELD There was no sufficient ground for the High Court to interfere with the acquittal in this case when the rea sons given by the trial Court were weighty and cogent and there was no compelling justification to take a contrary view
112 F The mere fact that certain amounts were in the hands of the appellant and the accounts submitted were incorrect would not lead to the conclusion that the appellant commit ted criminal breach of trust
111 F In the instant case the complainant was a junior of the appellant and he could himself easily find out the discrep ancy in the accounts and could have drawn the appellant s attention to it
The complainant s father did not authorise him to file the complaint nor was he examined to corroborate the complainant
Secondly in a notice issued to the appel lant by the complainant s father the latter did not at tribute any dishonest intention or criminal intent on for mer s part
The High Court was wrong in holding the charge as proved and in reversing the order of the trial Court
111 G 112 C