Case ID: 3141

Judgment:
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 & 103/70). R. A. Gupta for respondent (in Cr. A. No. 102/70). 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 I.P.C. 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. C/3443 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 120B/409 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 120B/409 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 M/s. 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. 60	000/ . This commodity was for the purpose of being used in the licensee 's factory. The complainant appointed M/s. Arun Importer (P) Ltd.	 owned	 managed and controlled by accused Nos. 1 to 3	 as his agents to import 52.5 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. 25	000/ 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 156(3) 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. 26	744.87. 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 120B/409 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 120B/409 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. 23/W/67. 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. 25	000/ 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 Iran(1). That was a case of (1) A.I.R. 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 120B/409 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 Maharastra(1). 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 R.	P. Kapur vs The State of Punjab(2)	 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 the.process 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. C/344 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. V.P.S. 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 B/409 1. P.C. 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 s.561A	 Cr. P.C. 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. P.C.	 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]