# [1969] 2 S.C.R. 520

- **Citation:** [1969] 2 S.C.R. 520
- **Court:** Supreme Court of India
- **Decided:** 1968-10-25
- **Case number:** Criminal Appeal No. 129 of 1966
- **Bench:** J. C. Shah, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1969-2-s-c-r-520-4524
- **Pages:** 6

## Headnote

B
Criminal Procedure Code 1898, ss. 207A and 209---Committal proceedings-If Magistrate should be satisfied as to guilt of accused or only that
there is some credible evidence to sustain a conviction before making order
of commitment.---Circumstances in which High Court justified in interfering with committal in revision.
On a complaint filed by the Registrar of Companies, and after an invesC
ligation by the Police ordered by the Chief Presidency Magistrate, Calcutta,
proceedings were instituted against the appellants for conspiring to commit
criminal !;reach df 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 adcused to stand trial for offences
under s. 120B read with Sections 409, 477A I.P.C. 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 CourUt was contended on
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behalf of the appellants that there was no evidence on which the order of
commitment could be made and that under s. 209 ( 1) Cr. P. C., the charge
may be framed only lf in the view of the committing Magistrate the evidence
on record is sufficien~ to justify conviction of the accused·.
HELD : Dismissing the appeal :
On the facts, it could not be said that there was no evidence on which a
charge could be framed against the appellants or that the evidence was so
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totally unworthy of credit that an order recording the conviction against
the accused could not be made.
Although in terms s. 209 applies to cases which are instituted otherwise
than on a police report, the principle underlying that 'section also applies
to cases which are institnted 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.
~f there is no
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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-CJ
Normally the High Court in a revision application filed
against the
order of commitment under s. 207 A 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 ju'risdiction where a
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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 BJ

## Text

ALMOHAN DAS AND ORS.
v,
STATE OF WEST BENGAL
October 25, 1968
A
[J. C. SHAH AND V. RAMASWAMI, JJ.]
B
Criminal Procedure Code 1898, ss. 207A and 209---Committal proceedings-If Magistrate should be satisfied as to guilt of accused or only that
there is some credible evidence to sustain a conviction before making order
of commitment.---Circumstances in which High Court justified in interfering with committal in revision.
On a complaint filed by the Registrar of Companies, and after an invesC
ligation by the Police ordered by the Chief Presidency Magistrate, Calcutta,
proceedings were instituted against the appellants for conspiring to commit
criminal !;reach df 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 adcused to stand trial for offences
under s. 120B read with Sections 409, 477A I.P.C. 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 CourUt was contended on
D
behalf of the appellants that there was no evidence on which the order of
commitment could be made and that under s. 209 ( 1) Cr. P. C., the charge
may be framed only lf in the view of the committing Magistrate the evidence
on record is sufficien~ to justify conviction of the accused·.
HELD : Dismissing the appeal :
On the facts, it could not be said that there was no evidence on which a
charge could be framed against the appellants or that the evidence was so
E
totally unworthy of credit that an order recording the conviction against
the accused could not be made.
Although in terms s. 209 applies to cases which are instituted otherwise
than on a police report, the principle underlying that 'section also applies
to cases which are institnted 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.
~f there is no
F
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-CJ
Normally the High Court in a revision application filed
against the
order of commitment under s. 207 A 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 ju'risdiction where a
G
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 BJ
CRIMINAL APPELLATE JURISDICTION: 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.
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ALMOHAN V. WEST BENGAL (Shah, J.)
521
A. K. Sen, P. K. Chatterjee, M. M. Kshatriya and G. S.
Chatterjee, for the appellants.
B. Sen and P. K. 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
Ahnohan 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. 7,23,031-9-6 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 Ahnohan Das with other directors of the company
had committed offences under ss. 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' J. N. 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 ss. 409 and 4 77 A I.P. Code and under
s. 282 of the Indian Companies Act, 1913. After investigation,
Sub-Inspector Mukherjee submitted on February 29, 1958, a
report under s. 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
SUPREME COURT REPORTS
[1969] 2 S.C.R.
the affairs of the company, the Indian Penal Code can have no
application, and the prosecution, if any, may be instituted und.er
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 ss. 120B read with 409
& 4 77 A I.P. 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 s. 409 I.P.C. against accused Almohan
Das with charge under s. 120B read with s. 409 LP.
Code aaginst ( 1) Almohan Das, ( 2) Sisir K. D,as, ( 3)
Nara Singha Pal, (4) Mohendra Lal Kundu and (5)
Provat Kumar Sarkar, another charge under s. 467
read withs. 34 J.P. Code against (1) Almohan Das, (2)
Nara Singha Pal, and (3) Mohendra L. Kundu for forging Ext. 5, and last under s. 477A against (1) Almohan Das, (2) Nara Singha Pal, (3) Mohendra Lal Kundu,
( 4) 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 G.I.S.N. & Co. Ltd."
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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
s. 207 A of the Code of Criminal Procedure. Normally the High
Court in a revision application filed against the order of commitment under s. 207 A 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
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ALMOHAN V. WEST BENGAL (Shah, J.)
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 evidence 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. 5,78,941-7-0 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. 5,78,941-7-0
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 ~ate
rial 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
SUPREME COURT REPORTS
[1969] 2 S.C.R.
charge for fabrication of the Director's Minutes Book may be
sustained.
A
In dealing with the charge for fabricating the Shareholders'
Minutes Book the learned Magistrate has observed that the mate-·
rials on the record made out a strong prima facie case that the
B
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 sign-
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ed 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
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P.Ws. 6 & 16 regarding their presence or absence, and (7) the
testimony of P.Ws. 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
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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.
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It was contended before us that under s. 209(1) of the Code
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of Criminal Procedure, a charge may be framed only if in the
view of the committing Magistrate the evidence on record is suffi-
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cient to justify conviction of the accused.
Section 209 of the
Code• provides :
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"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 rnscharge 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."
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ALMOHAN V. WEST BENGAL (Shah, J.)
525
In terms s. 209 applies to cases which are iru;tituted 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.
R.K.P.S.
Appeal dismissed.