minal Appeal No 119 of 1961
Appeal from the judgment and order dated December 21 1961 of the Calcutta High Court in Cr A No 423 of 1958
P K Chakravarty for the appellant
section C Mazumdar for respondent No 1
D N Mukherjee P K Mukherjee for P K Bose for the respondent No 2 1962
August 3
The Judgment of the Court was delivered by SINHA CJ
This appeal on a certificate of fitness granted by the High Court under Act 1341 c
566 of the Constitution is directed against the order of a Division Bench of the Calcutta High Court dated December 21 1960 setting aside the order of acquittal passed by the trial Magistrate dated July 2 1958
We heard this appeal on the eve of the long vacation and pronounced our order to the effect that the appeal was allowed and the order of acquittal was to stand and that reasons would be given later
It appears that the appellant who it a practising lawyer had been employed by the respondent to work for him to investigate the title to some property which the latter was about to purchase sometime in October 1952
The prosecution case was that the respondent had entrusted the
sum of Rs 5000 to the appellant for depositing in Court in connection with an application in respect of the proposed transaction under the Bengal Money Lenders  Act and that the appellant having been so entrusted with the money in breach of trust misappropriated the amount thus causing loss to his client
The appellant was therefore charged under section 409 of the Indian Penal Code with having committed criminal breach of trust in respect of the sum of Rs 5000  which had been entrusted to him as a lawyer on behalf of the respondent
The appellant defense was that the case against him was false and that he had been falsely implicated for reasons which need not be stated
In order to substantiate the charge against him the complainant now respondents examined himself and a number of witnesses
He also adduced in evidence a certain document marketed exhibit 1 purporting to be a letter in the handwriting of the appellant to show that Rs 4200 being a portion of the amount of Rs 5000 required for the deposit had been asked for by the appellant
It also con tained writings in the hand of the complainant owing that there was correspondence in the matter 567 of the deposit
That was a very important piece of evidence which if genuine could go a long way to prove the case against the appellant
But the appellant challenged the document as a forgery in material parts and cross examined the complainant who had produced the document
In spite of the fact that the complainant was very pointedly cross examined with a view to showing that the document placed before the Court was a forgery in material parts the complainant did not take any steps to get an expert on handwriting examined
The trial Court on an examination of the evidence oral and documentary came to the conclusion that the case against the accused had not been proved and acquitted him
The complainant preferred an appeal to the High Court against the order of acquittal which was heard by a Division Bench The High Court took the view that in the circumstances of the case there should be retrial by another magistrate who should give an opportunity to the complainant to adduce the evidence of a handwriting expert in order to establish the genuineness of the questioned document
Apparently the High court sitting in appeal on the judgment of the acquittal passed by the learned Magistrate was not satisfied as to the genuineness of the questioned document
Otherwise it could have pronounced its judgment one way or the other on the merits of the controversy whether or not the prosecution had succeeded in bringing the charge home to the accused
If it were not a case between a lawyer as an accused and his client as the complainant perhaps the High Court may not have taken the unusual course of giving a fresh opportunity to the complainant to have second round of litigation to the great prejudice of the accused
In this connection the following observations of the High Court may be extracted in order to show the reasonsfor the unusual course it took in this case 568 Thus there can be no doubt that this was a document of considerable importance
According to the prosecution it clearly showed the respondent s connection with the sum of Rs 4200 which was a part of the sum of Rs 5000  the subject matter of the charge
According to the respondent the figures 4200 and the Bengali word sankranta  were for geries just as at the bottom of the document the word yes  and the signature of the res pondent with date were also forgeries
This case was clearly put by the respondent to Bimla Krishna Ben and it was suggested to him that the impugned portions of the document were clear forgeries made by the appellant in order to falsely implicate the respondent
It must be said that inspite of this challenge the appellant took no steps what
ever to produce expert evidence to aid the court in coming to a conclusion as to the authorship of the impugned portion of the document
It is true that expert evidence cannot always be a final settler still in a call of this kind it is eminently desirable that the court should be assisted by a qualified expert since almost the whole case depends upon proof of the fact whether the impugned portions of that document were in the hand of the respondent 
Comment was also made by the Magistrate on the appellant s failure to call expert evidence
In one sense that comment was justified but in a case of this kind between lawyer and client we think the matter cannot be left where it is
In view of the fiduciary relation
ship between the parties it is as much necessary in the interest of the prosecution as in
the interest of the accused that the whole matter should be cleared  up and no steps 569 should be spared which might ensure complete justice between the parties
If it were an ordinary case between one litigant and another we might have hesitated at this dis tance of time to send the case back even though the prosecution did not avail of the opportunity of proving its own case
 In all civilised countries criminal jurisprudence has firmly established the rule that an accused person should not be placed on trial for the same offence more than once except in very exceptional circumstances
In this case the complainant had the fullest opportunity of adducing all the evidence that he was advised would be necessary to prove the charge against the accused person
It was not that he proved for the examination of an expert and that opportunity had been denied to him
The prosecution took its chance of having a decision in its favour on the evidence adduced by it before the trial Court
That Court was not satisfied that evidence was adequately reliable to bring the charge home to the accused
The accused was thus acquitted
On appeal it was open to the High Court to take a different view of the evidence if the facts and circumstances placed before it could lead to the conclusion that the appreciation of the evidence by the trial Court was so thoroughly erroneous as to be wholly unacceptable to the Appellate Court
If the High Court could come to the conclusion it could have reversed the judgment and converted the order of acquittal into an order of conviction
But it should not have put the accused to the botheration and expense of a second trial simply because the prosecution did not adduce all the evidence that should and could have been brought before the Court of first instance
It is not a case where it in open to the Court of Appeal against an order of acquittal to order a retrial for the reasons that 570 the trial Court has not given the prosecution full opportunity to adduce all available evidence in support of the prosecution case
It has no where been suggested that the trial Magistrate had unreasonably refused any opportunity to the prosecution to adduce all the evidence that it was ready and willing to produce
That being so the High Court in our judgment entirely misdirected itself in setting aside the order of acquittal and making an order for a fresh trial by another Magistrate simply on the ground that the case was between a lawyer and his client
Simply because the accused happened to be a lawyer would not be a ground for subjecting him to harassment a second time there being no reason for holding that his prosecutor had not a fair chance of bringing the charge home to him
In our opinion the High Court gave way to considerations which were not relevant to a criminal trial
The High Court was not sitting on a disciplinary proceeding for professional misconduct
It had to apply the same rules of criminal jurisprudence as
apply to all criminal trials and in our opinion the only
reason given by the High Court for ordering retrial is against all well established rules of criminal jurisprudence
The fact that the appellant is a practising lawyer does not entitle him to any preferential treatment when he is hauled up on a criminal charge even as he is not subject to any additional disability because the cam was between a lawyer and his client
There was no relationship of lawyer and client so far as the criminal case was concerned
Hence in our opinion the order of retrial passed by the High Court is entirely erroneous and must be set aside
Appeal allowed


Summary:
The appellant a practising lawyer engaged by
the respondent to investigate title in respect of a property when the latter wanted to purchase was prosecuted by him on a charge under a 409  the Indian Penal Code for misappro printing a sum of Rs 50001 entrusted to him for that purpose
The prosecution mainly depended on a letter written by the appellant which would show that a sum of Rs 4200 out of the said amount of Rs 5000 had been asked for by the appellant
This letter was challenged as a forgery by the 565 appellant
The respondent did not call a hand writing expert nor was he denied an opportunity to do so
The trial Magistrate held that the prosecution case had not been proved and acquitted the appellant
The High Court on appeal by the respondent set aside the order of acquittal on the ground that the appellant was a practicing lawyer in fiduciary relationship with his client and directed that the appellant be retried by smother Magistrate with opportunity to the respondent to examine a hand writing expert in order to establish the genuineness of the said letter
It held that since the case was one not between ordinary litigants but between a lawyer and his client involving a fiduciary relationship no steps should be spared to ensure complete justice between the parties and the case must be sent back even though the prosecution did not avail of the opportunity of proving its own case
Held that the order of the High Court were entirely erroneous and must be set aside
There was no ground for directing a retrial and the appellant could not be put to a second trial for the same offence simply because of the failure of the complainant to adduce all the evidence that should and could have been adduced
The fact that the appellant was a lawyer could make no difference and the same rules of criminal jurisprudence that applied to all must apply to him
Further the High Court was not exercising disciplinary jurisdiction and no relationship of lawyer and client was involved in the criminal case