minal Appeal Nos 101 to 103 of 1970
Appeals by special leave from the judgment and order dated October 10 1969 of the Calcutta High Court in Criminal Revision Nos 238 289 and 290 of 1969
D Mukherjee and section Ghosh for the appellants in all the appeals
A N Mulla J M Khanna Vishnu Bahadur Saharaya and Yogindra Khushalani for the respondents in Cr A Nos 101  10370
R A Gupta for respondent in Cr A No 10270
section C Mazumdar for the State in all the appeals
The Judgment of the Court was delivered by VAIDIYALIGAM J
These three appeals by the complaint by special leave are against the common judgment and order dated August 10 1969 of the Calcutta High Court in Criminal Revisions Nos 238 289 and 290 of 1969 setting aside the charge under section 120B read with section 409 IPC framed against all the four accused and the charge under section 409 IPC framed against accused Nos 1 to 3
The High Court by the same judgment quashed the proceedings based upon the said charges which were pending before the Presidency Magistrate 7th Court Calcutta in case No C3443 of 1967
The appellant in all these three appeals Amar Chand Agar walla filed a complaint before the Chief Presidency Magistrate Calcutta on November 21 1967 on the basis of which the four 181 accused persons namely Paramanada Agarwalla Madan Mohan Gour Jhumermal Agarwala and Shanti Bose were required to answer charges under section 120B409 and 409 IPC
These persons will be referred to as accused Nos 1 2 3 and 4 respectively
The case was later on transferred to the Presidency Magistrate 7th Court Calcuttta for disposal
The 7th Presidency Magistrate after recording the evidence of ten prosecution witnesses framed a charge on September 7 1968 under section 120B409 against all the four accused and a charge under section 409 IPC against accused Nos
1 to 3
The allegations in the complaint were briefly as follows The complainant was a partner of Ms Kalinga Bakery Bis cuit Confectionery and Mineral Water Company of Rourkela in Orissa and was granted actual users  import licence on November 18 1966 by the Joint Chief Controller of imports and Exports Calcutta for import of skimmed milk powder and other commodities upto the value of Rs 60000 
This commodity was for the purpose of being used in the licensee s factory
The complainant appointed Ms Arun Importer P Ltd owned managed and controlled by accused Nos 1 to 3 as his agents to import 525 bags of milk powder from New Zealand
The first accused wrote a letter dated July 25 1967 informing the complainant that the goods had already been shipped and that they would be arriving very shortly
Accused Nos
1 to 3 also offered to assist the complainant with a loan of Rs 25000 to enable him to clear the shipping documents from the Bank
The 4th accused was introduced by the other accused as a Customs Clearing Agent and on their suggestion the complainant appointed him as his clearing agent
After clearing the shipping documents with the assistance of the loan provided by the accused the complainant however was not informed about the actual arrival of the ship
The complainant addressed a letter dated August 19 1967 to accused No 4 asking for information about the arrival of the goods
None of the accused gave any intimation about the arrival of the goods
However to his surprise the complainant read in the newspaper a report on August 22 1967 about the police having recovered from the various parts of Calcutta several bags of milk powder stated to have been imported on his account
The complainant rushed to Calcutta and contacted the accused but was not able to get any information
Accused No 4 flatly declined to even recognise the complainant or talk to him accused Nos 1 to 3 however professed ignorance about the whole thing and hinted that accused No 4 might have diverted the goods to other persons
On August 26 1967 an application was filed before the Chief Presidency Magistrate to direct the police to make an investigation under section 1563 of the Criminal Procedure Code re 182 garding the missing quantity of milk powder
In the said application however only Shanti Bose the present accused No 4 was cited as an accused as the complainant did not have any reason to suspect the other accused
The milk powder seized by the police was later on directed to be returned to the complainant by the High Court on his furnishing security
Accused Nos 1 to 3 coming to know about this proceeding instituted on September 25 1967 a suit against the complainant in the High Court Suit No 2283 of 1967 praying for a declaration that the plaintiff was the pledge of 316 bags of milk powder of the defendant and prayed for a decree in the sum of Rs 2674487
They also asked for various interim reliefs
The complainant during the pendency of the proceedings before the Chief Presidency Magistrate came to know that all the accused persons had taken away on August 19 1967 the entire quantity of 525 bags of milk powder which had been imported on his account without his knowledge consent or instructions and that they had also mis appropriated about 200 bags before the police could raid their premises
On an ascertainment of these facts the complainant withdrew his original complaint with the permission of the court and instituted the present complaint against all the accused
On receipt of the complaints the Chief Presidency Magistrate ordered a judicial enquiry to be held by the 9th Presidency Magistrate
In the judicial enquiry held by the latter the complainant had brought on record various documents to substantiate his allegations
As a result of the enquiry the Chief Presidency Magistrate on December 26 1967 summoned all the four accused persons under sections 120B409 and 409 an transferred the case for disposal to the 7th Presidency Magistrate The learned Magistrate after a consideration of the materials placed before him by the complainant framed on September 7 1968 charges against all the accused under sections 120B409 IPC and a charge under section 409 IPC against accused Nos 1 to 3
None of the accused persons moved the High Court against the order of the Magistrate issuing process or against the order dated 7 9 1968 framing charges against them
It is seen from the records that a large volume of oral and documentary evidence had already been lot in and the trial itself had almost come to the closing stage
What remained was only to examine two more witnesses on the side of the prosecution as per order dated 24 21969 and also to examine one Durga Dutt Chowdhury as a court witness under section 540 Criminal Procedure Code as per order dated 7 3 1969
The witnesses examined so far by the prosecution had also been cross examined by the defence
183 While matters stood thus the 4th accused moved the High Court in Criminal Revision No 238 of 1969 for quashing the charges and the entire proceedings that had taken place before the Magistrate
There was also a prayer in the alternative for stay of the criminal proceedings till the disposal of Civil Suit No 2283 of 1967 Accused No 2 filed a similar Revision No 289 of 1969 followed by accused Nos 1 and 3 who were the petitioners in Criminal Revision No 290 of 1969
All the three Criminal Revisions were heard together by the High Court and have been dealt with in its common judgment
On behalf of the accused five contentions were urged before the High Court for quashing the charges as well as the entire proceedings pending before the Presidency Magistrate
The first contention related to the maintainability of the present proceedings by the complainant when he himself was an accused in a case under section 5 of the Imports and Exports Control Act 1947 stated by the Central Bureau of Investigation Economic Offences wing Calcutta in B C case No 23W67
it was urged before the High Court that though he had been discharged he is nevertheless an interested complainant
The High Court rejected this contention and held that on that account the present proceedings cannot be quashed
The second contention of the accused related to the effect of the order of withdrawal of the earlier complaint on the present proceedings
It was pleaded that the dismissal of the first complaint operates as a bar to these proceedings
However this contention also was rejected by the High Court on the ground that an order of dismissal under section 203 Criminal Procedure Code is no bar to the entertainment of a second complainant on the similar facts though such a complaint can be entertained only under exceptional circumstances
The High Court ultimately held that the present proceedings are not unwarranted of unable in view of the first order of discharge in the circumstances of the present case
The third contention that was taken before the High Court by the accused was that the factum of entrustment has not been established by clear and cogent evidence and as such there cannot be any breach of trust for less any dishonest conversion leading to a conspiracy
The learned Judge held that it is difficult at that stage on the evidence adduced to hold that there has not been any entrustment especially as the whole case depends upon on appreciation of the entire evidence for coming to a conclusion one way or the other
On this reasoning this contention also was rejected
184 It must be noted that the third contention was an invitation to the High Court to consider the evidence already adduced before the Magistrate and to come to a conclusion that no entrustment had been established
The High Court in our opinion quite rightly declined at that stage to go into that question of tact and left it to the Magistrate to assess and appreciate the evidence and come to a conclusion one way or the other
We are particularly referring to this aspect because as will be seen later the High Court adopted a different criteria when it dealt with the fifth contention of the accused
The fourth contention of the accused was that both the first and the second complaints suppressed material facts vitiating the present proceedings
The fifth contention as the High Court itself observes related to the merits namely that the evidence on record does not establish the offences with which the accused are charged
These two contentions have found favour with the High Court
It is on the basis of the acceptance of these contentions that the entire proceedings have been quashed
The fourth contention of the accused was that the complainant had suppressed material facts which were within his knowledge in the first complaint filed on August 26 1967
Particularly it was stressed that the complainant had not even referred to the Civil Suit No 2283 of 1967 instituted against him
The said complaint also does not refer to the complainant having taken a loan of Rs 25000 from the accused
The learned Judge has accepted this criticism as justified
It is not necessary for us to refer to what according to the learned Judge were certain omis sions made by the complainant in his original complaint filed on August 26 1967
But it is enough to state that the view of the learned Judge that even the suit instituted against the complainant had not been referred to is not justified
The complaint was filed on August 26 1967 whereas the suit against the complainant was filed on September 26 1967
It is also the view of the learned Judge that the present complaint also
does not refer to certain matters which were within the knowledge of the com plainant
We do not propose even to advert to these matters
According to the High Court there has been a suppression of some material facts in the two petitions of complaint and therefore the present proceedings must be held to be bad and repugnant effecting their maintainability
The High Court has referred in this case to a decision of the Calcutta High Court which in our opinion has no bearing
The decision is in Sunder Das Loghani vs Farun Rustom Iran1
That was a case of 1 AIR 1939 Calcutta 320
185 discharge of the accused under section 253 2 of the Criminal Procedure Code as the Magistrate was of the opinion that the complainant had deliberately suppressed several facts and that the complaint was a thoroughly dishonest one
in the end the High Court has held that the Present Proceedings are bad and improper and therefore they have to be quashed
The fifth and the last contention taken on behalf of the accused relates as the High Court itself states to the merits of the case and is based Upon the evidence on record both oral and documentary
After a consideration of certain items of evidence the learned Judge has held that the evidence on record rules out any offence of breach of trust
or a conspiracy to commit the same by the accused persons and therefore the present croceedings are not maintainable and have to be quashed
A representation appears to have been made on behalf of the complainant that a large volume of evidence oral and documentary has already been adduced and the trial has gone on for a long time and that only two more prosecution witnesses and a court witness remain to be examined
On this basis it was pressed before the High Court by the complainant that the High Court should allow the proceedings to go on and to come to its logical conclusion and that the
High Court should not interfere at that stage
The learned Judge however considered this representation and held that the two remaining prosecution witnesses should not be allowed to be examined in the facts and circumstances of the case as they cannot possibly have any material effect on the merits of the case
The High Court further held that even the proposed examination of the court witness is not necessary as it will only prejudice the accused and undo the effect of their cross examination
On this basis the representation made on behalf of the complainant was rejected
On behalf of the appellant Mr D Mookerjee very strenuously attacked the reasoning of the High Court for quashing the charges framed against the accused and the entire proceedings that head taken place before the Presidency Magistrate
On the other hand Mr A N Mulla learned counsel on behalf of the accused urged that the High Court was justified in the circumstances in quashing the charges well as the entire proceedings so far taken place before the Presidency Magistrate
The learned counsel appearing for the State supported the appellant and urged that the High Court was not justified in interfering with the proceedings when the trial had gone on for a considerably long time and was due to close We have already referred to the 4th and the 5th contentions urged on behalf of the accused which have found favour with 186 the High Court
We have already pointed out that the learned Judge quite rightly declined when dealing with the third contention to consider on an appreciation of evidence whether an entrustment has been proved
This the High Court has properly left to be decided by the Magistrate after the entire evidence is closed
But when dealing with the fifth contention which the High Court itself says relative to the merits of the case and has to be decided on the basis of the evidence on record both oral and documentary the High Court instead of adopting the same test as it did when dealing with the third contention embarked upon a fairly elaborate appreciation of the evidence on record and ultimately came to the conclusion that the evidence on record does not establish any breach of trust or a conspiracy to commit the same by the accused persons
Regarding the fourth contention which also has found acceptance at the hands of the High Court it relates to what according to the accused was suppression of certain material facts by the complainant in his two complaints
In our opinion the High Court was not justified in the particular circumstances of this case in quashing the charge as well as the entire proceedings that had taken place before the Magistrate
it is not as if the accused had moved the High Court at the earliest stage when the Presidency Magistrate issued sommons to them
Nor had they approached the High Court when charges were framed against them
The accused had been summoned after a judicial enquiry by the Chief Presidency Magistrate on December 26 1967 under sections 120B409 and 409 IPC
Before the Magistrate the evidence
oral and documentary was adduced by the complainant in the presence of the accused
On a consideration of such materials the Presidency Magistrate framed charges against all the four accused as early as September 7 1968
If the case of the accused was that the allegations in the complaint do not constitute the offence complained of or that the complaint has to be quashed for any ground available in law
they should have approached the High Court at any rate
immediately after the charges were framed
The records disclose that it was the fourth accused who moved the High Court to quash the proceeding on March 17 1969 earlier than the other accused
Even by that date several prosecution witnesses had been examined and they had also been cross examined by the accused
Several items of documentary evidence had already been let in during the trial
Only two prosecution witnesses and a court witness remained to be examined
The proper course at that stage to be adopted by the High Court was to allow the proceedings to go on and to come to its logical conclusion one way or the other
and decline to interfere with those proceedings
The fourth contention related to the suppressions of certain 187 material in the complaint
We do not propose to express any opinion on that aspect because even assuming that there has been suppression that is a matter to be considered by the Trial Magistrate
Similarly as to whether the evidence on record establishes that an offence of breach of trust has been committed or not is again a matter for the Trial Court to come to a conclusion one way or the other after an appraisal of the entire evidence that is let in by the prosecution and by the defence if any
The High Court was not justified at that stage to have embarked upon an appreciation of the evidence
Here again we do not express any opinion on merits as the matter is to be considered by the Trial Magistrate
The High Court was also equally not justified in holding that the two prosecution witnesses should not be examined on the ground that their evidence will not have any material effect on the merits
The further view of the High Court that the examination of the court witness will prejudice the accused is also without any basis
In fact the High Courts decision on
the question of these witnesses is really on a representation made on behalf of the complainant that the trial is almost coming to a close and that only two more prosecution witnesses and one court witness remain to be examined
So far as we could see the  accused have not challenged the order of the Magistrate dated February 24 1969 allowing the prosecution to examine Satanarayan Agarwalla and an officer of the Directorate of Industries Government of Orissa nor have they challenged the order dated March 7 1969 of the Magistrate allowing the prayer of the prosecution for examining Durga Dutt Chowdhury as a court witness under section 540
In holding that the proposed examination of Durga Dutt Chowdhury as a court witness will pre judice the accused the High Court has not given due consideration to the decision of this Court in Jamatraj Kewalji Govani vs
The State of Maharastra1
It is not clear whether the High Court passed the order in question under section 561A or under section 439 of the Code
of Criminal Procedure
This Court has laid down the principles in RP Kapur vs The State of Punjab2 which have to beborne in mind by the High Court when its inherent jurisdiction under section 561A is invoked for quashing the proce edings pending before a subordinate court
It has been emphasised that the inherent jurisdiction could be exercised to quash proceedings in a proper case either to prevent the abuse of theprocess of any court or otherwise to secure the ends of justice
This Court has also indicated some of the categories of case where 1  2 188 the inherent jurisdiction could and should be exercised to quash proceedings
However the exercise of the power by the High Court in the case before us does not come within the ambit of the principles laid down by this Court in the above decision
For instance the second contention taken before the High Court by the accused related to the maintainability of the second complaint when the first complaint had been withdrawn and the accused had been discharged
If the High Court had accepted the contention of the accused in that regard it may be that the High Court was justified in quashing the proceedings though at a very late stage
But on that point the High Court s decision is in favour of the complainant
The other points taken into account by the High Court do not justify the exercise of its power under section 561A and that too at a very late stage of the proceedings
Even assuming that the High Court was exercising jurisdiction under section 439 in our opinion the present was not a case for interference by the High Court
The jurisdiction of the High Court is to be exercised normally under section 439 Criminal Procedure Code only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice
The High Court has not found any of these circums tances to exist in the case before us for quashing the charge and the further proceedings
The judgment and order of the High Court quashing the charges framed against the accused as well as the other proceedings based thereon pending in case No C344 3 of 1967 are set aside
The learned Presidency Magistrate will proceed with the further trial and give it a very expeditious disposal
We make it clear that the directions given by the Chief Presidency Magistrate regarding the examination of two more prosecution witnesses and the court witness will stand subject to any modifications that may be made by that Court in regard to the directions I already given by it
In the result the appeals are allowed
VPS Appeals allowed


Summary:
As a result of a judicial enquiry in relation to a complaint by the appellant against the four respondents summons were issued to the respondents and before the Magistrate evidence oral and documentary was adduced by the complainant appellant in the presence of the accused respondents
On a consideration of those materials the Magistrate framed charges against I all the four accused under sections 120 B409 1
PC and under section 409 against accused 1 to 3 in September 1968
Thereafter the trial proceeded a large volume of oral and documentary evidence was let in and all that remained was the examination of two prosecution witnesses and a court witness before closing the trial
All the prosecution witnesses examined till then were also cross examined by the respondents
At that stage in March 1969 the 4th accused moved the High Court for quashing the proceedings and the other accused followed with similar petitions
The High Court in spite of the complainant representing that the trial had almost come to a close quashed the charges and proceedings on the grounds that the complainant had suppressed material facts that the two prosecution witnesses should not be allowed to be examined in the circumstances of the case  that the  examination of the court witness was not necessary as it would only prejudice the accused and under the effect of cross examination and that the evidence on record ruled out any offence of breach of trust or a conspiracy to commit it
Allowing the appeal to this Court HELD  The High Court was in error a It is not as if the accused had moved the High Court at the earliest stage when summons was issued to them
Nor had they approached the High Court when charges were framed against them
If the case of the accused was that the allegations try the complaint did not constitute the offences complained of or that the complainant was to be quashed on any other ground available in law the accused should have approached the High Court at least when the charges were framed
186DE b Assuming there was a suppression of material facts by the complainant that was a matter to be considered by the trial Court
Similarly whether the evidence on record established that an offence of breach of trust or a conspiracy to commit it had been committed Is again a matter for the trial court to come to a conclusion after an appraisal of the entire evidence let in by the prosecution and the defence
The High Court was not justified at that stage to have embarked upon an appreciation of the evidence
187AC c The accused never challenged the order of the trial court regarding the examination of prosecution witnesses or the court witness and 180 the High Court was not justified in holding that they should not be examined and hence the order regarding their examination should stand
Jamatraj Kewalji Govani vs The State of Maharashtra  referred to
d If the High Court had passed the order quashing the charges and proceedings in exercise of its inherent jurisdiction under s561A Cr
PC then the exercise of the power by the High Court was not justified because the present case does not come within the ambit of the principles laid down by this Court in R K Kapur vs The State of Punjab 188 A C e Even assuming that the High Court was exercising jurisdiction under section 439 Cr
PC the present was not a case for interference by the High Court
The jurisdiction of the High Court is to be exercised nearly under the section only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law and consequently a flagrant miscarriage of justice
188D