Criminal Appeal No 129 of 1966
Appeal by special leave from the judgment and order dated March 21 1966 of the Calcutta High Court in Criminal Revision No 309 of 1966
521 A K Sen PK Chatterjee MM Kshatriya and GS Chatterjee for the appellants
B Sen and PK Chakravarti for the respondent
The Judgment of the Court was delivered by Shah J
Mahendra Lal and Probhat Kumar Sarkar were the promoters and Almohan Das was the first Chairman of the Board of Directors of the Great Indian Steam Navigation Company Ltd Messrs Das Brothers of which Almohan Das was the sole proprietor became the managing agents  of the Company in 1945
On July 2 1951 Das Group Ltd of which also Almohan Das was the principal Director took over the managing agency
The Registrar of Companies West Bengal filed a complaint in the Court of the Chief Presidency Magistrate alleging that sometime between March 1 1945 and December 31 1947 a sum of Rs
723031 9 6 was advanced by the
Company to the managing agents Messrs Das Brothers that on July 2 1951 Messrs Das Brothers resigned from the managing agency and Messrs Das Group Ltd took over the managing agency that Almohan Das was at all material times a director of the company and also a director of Messrs Das Group Ltd and the sole proprietor of Messrs Das Brothers and that the complainant had reason to believe that Almohan Das with other directors of the company had committed offences under sections 86 D and 87 D of the Indian Companies Act 1913
The complainant requested that a through investigation be made in the matter
The Chief Presidency Magistrate Calcutta referred the case to the police for investigation
In the course of investigation of the complaint referred to him Sub Inspector JN Mukherjee filed a First Information against eight persons including the five appellants in this appeal charging them with having conspired to commit criminal breach of trust in respect of the company s funds falsification of accounts and making false returns balance sheets and accounts and in furtherance of the object of the conspiracy with committing offences punishable under sections 409 and 477A IP Code and under section 282 of the Indian Companies Act 1913
After investigation Sub Inspector Mukherjee submitted on February 29 1958 a report under section 173 of the Code of Criminal Procedure in the Court of the Chief Presidency Magistrate for those offences against seven persons including the five appellants
The Presidency Magistrate 9th Court to whom the case was transferred for trial rejected the contention raised by counsel for the defence that to a charge made against a director in relation to 522 the affairs of the company the Indian Penal Code can have no application and the prosecution if any may be instituted under the provisions of the Indian Companies Act alone
The Magistrate also held that it was open to the police officer to whom the case was referred for investigation to submit a charge sheet of his own initiative and that the Court had jurisdiction to enquire into the charge so made without the sanction of the High Court
A revision application was filed in the High Court of Calcutta against that order but the application was rejected
Proceedings were then resumed by the Magistrate on December 5 1961 and a large number of witnesses were examined before him and several documents were tendered in evidence
On December 3 1965 the Presidency Magistrate committed the accused to stand trial for offences under sections 120B read with 409  477A IP Code before the Court of Session
He observed  having regard to the entire evidence on record and facts and circumstances of the case I am convinced prima facie that good grounds exist for framing charge under section 409 IPC against accused Almohan Das with charge under section 120B read with section 409 IP Code aaginst 1 Almohan Das 2 Sisir K Das 3 Nara Singha Pal 4 Mohendra Lal Kundu and 5 Provat Kumar Sarkar another charge under section 467 read with section 34 IP Code against 1 Almohan Das 2 Nara Singha Pal and 3 Mohendra L Kundu for forging Ext
5 and last under section 477A against 1 Aimoban Das 2 Nara Singha Pal 3 Mohendra Lal Kundu4 Provat Kumar Sarkar and 5 Sisir Kumar Das in respect of falsification of shareholders minute book Ext 18 purporting to ratify the action of Almohan Das regarding the funds of the GISN  Co Ltd Against this order a revision application was filed in the High Court of Calcutta which was rejected in limine
Against the order passed by the High Court this appeal has been filed with special leave
In the present case the order of commitment was made under section 207A of the Code of Criminal Procedure
Normally the High Court in a revision application filed against the order of commitment under section 207A will not enter upon a reappraisal of the evidence on which the order of commitment is made
The High Court would be justified in exercising its revisional jurisdiction where a substantial question of law arises on which the correctness of the order of commitment may be effectively challenged where there is no evidence on which the order of commitment could be made where there has been denial of a right to fair 523 trial where there is reason to think because of failure to comply with the rules of procedure or conditions precedent to initiation of criminal proceedings where by ignoring the substantive law which constitutes the offence or misconception of evidence on matters of importance grave injustice has resulted and on similar other grounds
But in other cases interference with the order of the Magistrate committing the accused for trial may not be justified and the trial before the Court of Session should be allowed to run its course
Counsel for the appellants submitted that there was no evi dence on which the order of commitment could be made
We do not think that there is any ground for so holding
It was the prosecution case that in order to commit criminal breach of trust in respect of an amount exceeding Rs 5 lakhs by allowing it to remain with Messrs Das Brothers the previous managing agents of the company of which Almohan Das was the sole proprietor and from whom Messrs Das Group Ltd took over the managing agency a conspiracy was entered into between the seven named persons and the minutes book of the meetings of the Board of Directors and the shareholders  minutes book were fabricated and criminal breach of trust was committed in respect of the funds belonging to the Company
It is true that in the balance sheet Ext
137 for the year ending December 31 1952 on the assets side is an item Sundry Advances Unsecured  inclusive of Rs 578941 7 0 due by a firm in which a director of the Company was a partner
But this it is the case of the prosecution was not supported by any resolution passed by the Board of Directors
By letter dated June 21 1956 the Additional Registrar of Companies asked the Company to furnish a certified copy of the minutes of the Board of Directors in which the loan had been made to the managing agents of the Company
In reply thereto by letter dated July 12 1956 the Managing Agents wrote that as the money was held by the managing agents and was not given or treated as a loan there was no resolution of the Board of Directors in that connection
On September 29 1956 the Additional Registrar of Companies again wrote a letter to the Company enquiring whether the amount of Rs 578941 7 0 which was lying with the previous managing agents of the Company Messrs Das Brothers had since been realised and if so the evidence adjusting the liability
and if not to intimate with material evidence whether any steps had since been taken by the Company for the realization of the dues and how the matter stood
in the course of the investigation the officer in charge attached a directors  minutes book Ext
5 which contains the minutes of a resolution authorising Almohan Das to retain the funds of the Company
Therefore there was some evidence on which the 524 charge for fabrication of the Director s Minutes Book may be sustained
In dealing with the charge for fabricating the Shareholders  Minutes Book the learned Magistrate has observed that the materials on the record made out a strong prima facie case that the Shareholders  Minutes Book Ext
18 is also a forged document
The circumstances which lent colour to the prosecution in the view of the learned Magistrate were 1 that Ext
18 starts from February 28 1945 although the Company was incorporated in 1942 2 in many meetings the signatures of the shareholders were not taken although in some meetings the shareholders signed the minutes book 3 resolutions of Amaresh Pramanick and Sudhir Kanti Sarkar are not incorporated in the minutes book 4 some portions in the last page in the agreement Ext 20 with the managing agency firm Das Group appear to have been erased out and the agreement was thus tampered with 5 the minute book Ext
18 does not incorporate the relevant questions and there appeared tampering with pagination 6 the evidence of PWs 6  16 regarding their presence or absence and 7 the testimony of PWs 15  24 suggested that most of the persons shown to have attended meetings were at the back and call of the accused Almohan Das
Whether this evidence may justify a conviction cannot be enquired into at this stage
The evidence was prima facie sufficient to frame a charge
The Presidency Magistrate was of the view that a case for framing a charge for committing the case to the Court of Session was made out and the High Court has summarily dismissed the revision application in exercise of its jurisdiction
It was contended before us that under section 2091 of the Code of Criminal Procedure a charge may be framed only if in the view of the committing Magistrate the evidence on record is sufficient to justify conviction of the accused
Section 209 of the Code provides When the evidence referred to in section 208 subsections 1 and 3 has been taken and he has if necessary examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him such Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial record his reasons and discharge him unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate in which case he shall proceed accordingly 525 In terms section 209 applies to cases which are instituted otherwise than on a police report
But the principle underlying that section applies to cases which are instituted on a police report
A Magistrate holding an enquiry is not intended to act
merely as a recording machine
He is entitled to sift and weigh the materials on record but only for seeing whether there is sufficient evidence for commitment and not whether there is sufficient evidence for conviction
If there is no prima facie evidence or the evidence is totally unworthy of credit it is his duty to discharge the accused if there is some evidence on which a conviction may reasonably be based he must commit the case
The Magistrate at that stage has no power to evaluate the evidence for satisfying himself of the guilt of the accused
The question before the Magistrate at that stage is whether there is some credible evidence which would sustain a conviction
We do not agree with counsel for the appellants that there was no evidence on which a charge could be framed against the appellants or that the evidence was so totally unworthy of credit  that an order recording the conviction against the accused could not be made thereon
The appeal fails and is dismissed
We trust that the case which has been held up for a very long time will be taken up by the Court of Session for trial with the least practicable delay
RKPS Appeal dismissed


Summary:
On a complaint filed by the Registrar of Companies and after an investigation by the Police ordered by the Chief Presidency Magistrate Calcutta proceedings were instituted against the appellants for conspiring to commit criminal breach of trust in respect of a company s funds
After a large number of witnesses were examined and several documents were tendered in evidence the Magistrate committed the accused to stand trial for offences under section 120B read with Sections 409 477A IPC before the Court of Sessions
A revision application against the order of committal was rejected in limine by the High Court
In appeal to this Court it was contended on behalf of the appellants that there was no evidence on which the order of commitment could be made and that under section 209 1 Cr
PC the charge may be framed only if in the view of the committing Magistrate the evidence on record is sufficient to justify conviction of the accused
HELD Dismissing the appeal On the facts it could not by said that there was no evidence on which a charge could be framed against the appellants or that the evidence was so totally unworthy of credit that are order recording the conviction against the accused could not be made
Although in terms section 209 applies to cases which are instituted otherwise than on a police report the principle underlying that section also applies to cases which are instituted on a police report
A Magistrate holding an inquiry has to see whether there is sufficient evidence for commitment and not whether there is sufficient evidence for conviction
If there is no prima facie evidence or the evidence is totally unworthy of credit it is his duty to discharge the accused if there is some evidence on which a conviction may reasonably be based he must commit the  case
525 A C Normally the High Court in a revision application flied against the order of commitment under section 207A will not enter upon a reappraisal of the evidence on which the order of commitment is made
The High Court would be justified in exercising its revisional jurisdiction where a substantial question of law arises on which the correctness of the order of commitment may be effectively challenged
But in other cases the trial before the Court of Session should be allowed to run its course
522 G 523 B