RAJENDRAPAUL RAMASARAN DASS SHARMA

STATE OF MAHARASHTRA ' February .23, 1973 [A. ALAGIRISWAMI, l. D. DUA AND C. A. VAIDIALINGAM, JJ.)

Whether High Court should give a. :Jpeaking order in dismissing •1n appeal or merely disniiss the appeal in limine.

The appellant was running a Octroi Cleari, ing Agency at 'Mulund Check-Post' in th, e 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 copany arfived at the Check-Post with a machine to be delivered to M/IS. Imperial Tobacco Co.

The appellant i.nformed the Manager of the Transport Company to arrange for the payment of Octroi whii:::h amounted to mor_e than Rs. 8,000/-.

Accordingly, a sum of Rs. 8,1961was haned over to the appe1lant in the J.'resence 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 a.00 on a complaint lodged by the Company, theappe11ant \Vas arrested and committed for trial to the Court Of Sessions, under S. 467, 471 read With S. 467 and S. 420 of J.P .C.

The Trial Court convicted the appellant for an offence under s. 471 read with s. 467 I. P. C. and for an offe; rn::e under s. 420 I. P. C.

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 reason-; for dismissal.

Remandng the cas.e to the High Court for reheadng.

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

v. The State of Bombay, [1953] S.C.R. 809.

Sinoo then, in a series of decision~ this Court has consistently drawn the attention of the High courts to the desirability of giving an indiCation of their views on ., te points . raised in rguable cases in ac<:ordait< with the legal position enunciated by .this Court.

[552-AB.]

(ii) In K. TS:. Jain v. State of Maharashtra, A.I.R. 1973

S.C. 243 it was reiterated that . reason~ 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 . iucb 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 cQooideration in his case, were actually argued and duly considered by this High Court while dismis!ling .his appeal. In the present case, since the High Court did not record its reasons for dismissing the appeal, this ceurt has no option but to remaJl(! the case to the High Court for rehearing and deciding the appeal after considering the points raised and

recording its reasons in accordanee with law. [S52FG&553AJ

RAJBNDRAPAiJL v. STATE (Dua, J,) SU

Mustaq Husmin v. State of Bombay, [19S3] S.C.R. 809, iind K. K. lain v. State of Maharashtra, A.LR. 1973 S.C. 243, refetkd to.

CRIMINAL APPELLATE JuRisDICTION : Criminal 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.

S. 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 !ft Bombay for offences under s. 467, under s. 471 read withs. 467 and under s.

420, I.P.C. Accordiilg 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 Com pany. 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. 8,000/-. The Manager, Bakshi and Director, Inderjit Singh went to the Imperial Tobacco Company the following day and after getting Rs. 8,196/· for the octroi reached the Mulund Check-post. The amount was handed over to the appellant in the presence ofthe driver. Actually only Rs. 8,1801were required for the o_ctroi with the.result that Rs. 16 I 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 Private Ltd., 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 hilriself 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 docume]lts in the . office files Shri Karkhanis lodged the complaint in February, 1969 and a case

3-L161Sup. Cl/73 •

SUPREME COURT REPORTS [1973] 3 S.C.ll.

was registered.: After preliminary nquiry under Cb. XVIll A Cr. P.C. the appellant was committe4 for trial to the court. of Session. According to the trial court the following points arose for detennination :

"l. Whether it is proved that the receipt, Article A is a forged document ?

2. Whether it is proved thait it is the accused who forged that receipt with intent .to commit fraud ?

3. Whether it is proved that rthe accused used this receipt as genuine knowing it to be forged ?

4. Whether U is proved that he cheated the Bombay

Municipal Corporation, as alleged ?

S. 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 :

"l. Ln the affirmative ..

2. Not proved.

3. In the affirmativ~.

4. In the affirmative.

S. Not proved."

The evidence in this case is mai:i'ln~ not wholly, circumstantial and about 20 witnosses wer& ex including a handwriUna expert. The trial court felt that the case required evaluation of the evidence of. Bakshi (P.W. 4), Inderjit Singh (P.W. 18) and Handwriting Expett (P. W. 17) . Driver Balwant Singh was riot examined in the case. The trial . court in a lengthy judP.Jlent exhaustively discussed the evidence of these witnesses. It did not plac.e implicit reliance either on Bakshi (P .W. 4) or on Inderjit Singh (P.W. 18) 11$ indeed in the testimony of both of them the trial court found partly' reliable and pattly unreliable statements.

The court did not feel inclined to hold that their evidence was wholly unreliable. On evaluation' of the evidence of the Hand writing Expert the ttial court felt that the receipt in questjon could not necessarily be held to have beQll forged by the appellant. Afte'r tDJS 'ObServation follows the following passage ijl tl:!e 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 evidenco for findin.J out whether he could have used the document Which JS nece$sarily a foged docu ment, as a genuine document. For this Jlurpose we will have to apJ)reciate the evidence of the twO witnesses .

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 bo surmised, particularly ip. the absence of categorical evi dence showin¥ that the disputed receipt is executed by him. The evtdence shows, it is a forged reqeipt. It is not prepared at tho counter. We may not be sure in finding out as to who wrote it. The accused may have had his associates ii he himself has not written it. Considering the way in which coumers 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 bnwards 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 tho 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 chDating and ultimately convicted the appellant for offence under ss. 471 read with 467, I.P.C. and for an offence under s. 420, I.P.C. 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. s. 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 G of vital importance to the appellant requiring our decision is whether the High Court was justified oo the facts and circumstances of this case in unceremoniously dismissing the appeal in limiM . with one word "Dismissed" without making a speaking order indi

cating the reasons for the dismissal. The facts briefly stated by °' and .a close study of the lengthy judgment of the trial court quite H clearly show that the appeal in the High Court did raise pointl which were ID.Ot only arguable but were aJSo substantial requiring critical scrutiny and serious appraisal and -evaluation of the prosecution evidence and the circumstances of. the case. The impor

SUPREME COURT RBPOR TS [1973] 3 S, C.ll.

tance of, the opinion of the High Court on arguable points requiring consideration on appeal iin that court when questions of fact or law are open to challenge by the appellant was emphasised more than 20 years ago by this Couit in Mushtak f:t1sseln v. The State of Bombay(') 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 br, 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 die High Court on such points in special leave petitions under article 1315 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 v. State of Mahaiashtra(') some of the earlier decisions were again noticed and it was considered necessary to repeat the emphasis laid on ithe. necessity of recording reasons by the High Court for dismissing appeals raising questions which cannot be considered to bie unsubsta.ntial or not arguable. In that decision it was reiterated, inter alio, that reasons prevailing with the High Court for dismissing the appeal, if recotded, 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 a.nd 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 lhe High Court recorded its reasons for dismissing the appeal it would have better enabled the appellant's lawyer to consider the advisibility of appealing

(!) [1953) S.C.R. 809.

(2) A.I.R. 1973 S.C. 243.

under Art. 136 of the Constitution and after filing the appeal would have afforded valuable assistance both to the counsel appear ing in this Coi:rt .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 appellwt's appeal in the High Court and this indeed is regrettable. But in the absence of the opinion ol

the High Court which that Court was under the law expected to record we are left guessing abput the line of reasoning the High Court would have adopted after appropriate scrutiny of the evi dence on the record. The appellant is entitled to have a proper

deision on the points arising in his appeal by the High Court on due appraisal of the evidence in accordance with Jaw. The legal position on the point in .question has been authoritatively settled

and declared by this Court and the same has been frequently reite rated 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 ithe 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 optioll but to allow the appeal and remand the case to the High Court for re hearing and deciding the appeal after considering the points raised a.nd 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 1* disposed of by the High Court expeditiously and without avoidable delay.

SC.

Appeal allowed.