# I 09 VASUDEO KULKARNI v. SURYAKANT BHATT & ANR

- **Citation:** [1977] 3 S.C.R. 109
- **Court:** Supreme Court of India
- **Decided:** 1977-03-02
- **Case number:** Criminal Appeal No. 24 of 1972
- **Bench:** P. K. Goswami, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i-09-vasudeo-kulkarni-v-suryakant-bhatt-anr-7150
- **Pages:** 4

## Headnote

Practice and Procedure-Trial Court acquitted the accused-High CourtWhen could reverse trial court's findings.
The appellant was a lawyer, under whom the Complainant (first respondent)
was a junior. The ap-pellant was engaged as counsel in certain cases
by the
complainant's father. The appellant submitted staten1eat of accounts
to
the
complainant's father in respect of the sums spent by him. in the suits. After a
lapse of three years the complainant filed a complaint against the appeJlant making allegations under ss. 409, 468 and 474 I.P.C. The trial Court acquitted him
holding that the prosecution had been launched after inordinate delay and that
there was no clear and conclusive evidence of criminal intention and dishonest
mental act on the ·appellant's part. The High Court, on appeal, set aside th~
acquittal holding that the appellant's explanation in regard to the discrepancies
\Va~ not true and could not be accepted.
Allowing the appeal to this Court,
HELD : There was no sufficient ground for the High Court to interfere with
the acquittal in this case when the reasons given by the trial Court were weight)1
and cogent and there was no compelling justification to take a contrary view.
.
(112 Fl
The mere fact that certain amounts were in the hand.s of the appellant and
the accounts submitted were incorrect would not lead to the conclusion that the
appellant comm1tted criminal breach of trust. [111 F]
In the instant case, the complainant was a junior of the appellant and he
could himself easily find out the discrepancy in the accounts and could have
drawn the appellant's attention to it. · The complainant's father did not authori!:>e him to file the complaint nor was he examined to corroborate the complainant. Secondly, in a notice issued to the appellant by the
complainanfs
father the latter did not attribute any dishonest intention or criminal intent on
farmer's part. The· High Court was wrong in holdin.2 the charge as proved and
in reversing the order of the trial Court. [111 G; 112 CJ

## Text

I 09
VASUDEO KULKARNI
V.
SURYAKANT BHATT & ANR.
March 2, 1977
[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]
Practice and Procedure-Trial Court acquitted the accused-High CourtWhen could reverse trial court's findings.
The appellant was a lawyer, under whom the Complainant (first respondent)
was a junior. The ap-pellant was engaged as counsel in certain cases
by the
complainant's father. The appellant submitted staten1eat of accounts
to
the
complainant's father in respect of the sums spent by him. in the suits. After a
lapse of three years the complainant filed a complaint against the appeJlant making allegations under ss. 409, 468 and 474 I.P.C. The trial Court acquitted him
holding that the prosecution had been launched after inordinate delay and that
there was no clear and conclusive evidence of criminal intention and dishonest
mental act on the ·appellant's part. The High Court, on appeal, set aside th~
acquittal holding that the appellant's explanation in regard to the discrepancies
\Va~ not true and could not be accepted.
Allowing the appeal to this Court,
HELD : There was no sufficient ground for the High Court to interfere with
the acquittal in this case when the reasons given by the trial Court were weight)1
and cogent and there was no compelling justification to take a contrary view.
.
(112 Fl
The mere fact that certain amounts were in the hand.s of the appellant and
the accounts submitted were incorrect would not lead to the conclusion that the
appellant comm1tted criminal breach of trust. [111 F]
In the instant case, the complainant was a junior of the appellant and he
could himself easily find out the discrepancy in the accounts and could have
drawn the appellant's attention to it. · The complainant's father did not authori!:>e him to file the complaint nor was he examined to corroborate the complainant. Secondly, in a notice issued to the appellant by the
complainanfs
father the latter did not attribute any dishonest intention or criminal intent on
farmer's part. The· High Court was wrong in holdin.2 the charge as proved and
in reversing the order of the trial Court. [111 G; 112 CJ
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 24 of
1972.
(Appeal by Special Leave from the Judgment and Order dated
22-10-1971 of the Madhya Pradesh High Court (Indore Bench) in Crl.
A. No. 292/70).
R. L. Kohli, R. C. Kohli and A. G. Ratnaparkhi, for the appellant.
M. K. Khan and S. K. Dhingra, for respondent No. 1.
Ram Panjwani and H. S. Parihar, for respondent No. 2;
The Judgment of the Court was delivered by
GOSWAMI, J. This appeal by special leave is directed against the
judgment of the High Court of Madhya Pradesh convicting the appellant under section 409, Indian Penal Code, and sentencing him to one
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SUPREME COURT REPORTS
ll 977l 3 s.c.R.
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year's rigorous imprisonment and to a fine of _Rs. 250/-, i1: default ~ur
ther rigorous imprisonment for three months, m appea:l a~amst acqmttal
at the instance of the complainant (first respondent herem).
The appellant is a senior lawyer of 25 years' standing in Indore and
the complainant was acting as his junior. The complainant's father,
Dinubhai, was the senior partner of a firm of Chartered Accountant,
B
.M/s. Dinubhai & Co., with its registered office in Bombay and a branch
office in Indore.
The Indore office was looked after by the second
partner, M. C. Mehta. It appears that the firm was dissolved on July
5, 1960, when Mehta ceased to be a partner and Dinubhai appointed
the appellant as counsel and attorney for filing suits and for recovering
dues from various parties. Dinubhai filed a suit, being suit No. 13 of
1962, for recovery of Rs. 12,500/- in the court of the Third Additional
C
District Judge, Indore, impleading M. C. Mehta and one Chandulal
Shah as defendants in that suit.
Although the suit was decreed, it
appears there were two cross appeals against the decree in the High
Court, one by Dinubhai and the other by Chandulal Shah. The appellant
·"
was appearing for Dinubhai in both the appeals.
He received some
amounts in advance from Dinubhai and submitted a statement of
account of Shri Dinubhai (Ex. P-1) dated February 9, 1965, wherein
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two items, namely, Rs. 210/- and Rs. 110/- were mentioned as being
towards "paper book charges" respectively on 21-4-1964 and
22-9-1964.
The entry on 22-9-1964 shows that the amount of
Rs. llO/- is one of several items mentioned therein as expenses incurred
in the appeal filed by Chandulal Shah against Dinubhai.
So far as the
items mentioned in Ex. P-1 on 21-4-1964 including the last item of
Rs. 210/-, there is no mention whether the expenditure was actually
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incurred on that date.
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The complainant was not pulling on well with his father for some
reason or other and also parted company with his senior, the appellant.
_He filed a.complaint against the appellant on December 8, 1967, makmg allegations under sections 409, 468 and 4 7 4 IPC.
Ultimately the
appellant was charged under section 409 IPC with regard to the
amounts of Rs. 210/- and Rs. 110/- which were mentioned in the statement of account (Ex. pcl) received by the complainant on February
10, 1965. The complainant examined himself and a clerk of the High
Court to prove that no paper book charges were deposited on the dates
mentioned in the accounts. On the other hand a sum of Rs. 26.50 was
deposited as paper book charges on March 18, 1965, in the particular
appeal.
The appellant denied the charge and stated that there was a typing
error in the accounts and the actual figures should have been Rs. 21 /-
(and not .Rs. 210/-) and Rs. 10/- (and not Rs. 110/-). When the
appellant's attention had been drawn to these amounts
he admitted
these to be typing errors and asked for adjustment of the amount of
Rs. 300/- towards his fees in the case of Kothari Book Depot.
It is rather curious that a criminal complaint should have been lodged against the appellant nearly three years after the receipt of the
accounts by the complainant.
VASUDEO KULKARNI v. SURYAKANT BHATT (Goswami, J.)
111
The trial court acquitted the accused (appellant herein) by observing as follows :-
"To sum up, the prosecution has been launched after inordinate unexplained delay, there is no. clear and conclusive
evidence of the criminal intention and dishonest mental act of
the accused, the real aggrieved person has not come with the
complainant but has already sought the alternative remedy in
Civil Court which is being already pursued. The question
whether or not the adjustment made by the accused towards
his fees was proper can more appropriately b_e decided by
Civil Court.
Accused having reasonable claim against the
complainant for any equiva.Jent sum of money, his user of the
disputed sum for bis own purpose will not amount to criminal
breach of trust".
The High Court, on the other hand, held that the charge was established against the accused and set aside the acquittal. The High Court
held that the explanation of the accused did not appear to be true and,
therefore, could not be accepted. It further held that it was clear that
on the dates mentioμcd in the accounts no amounts were deposited as
paper book charges in the High Court. The High Court concluded as
follows:-
"Consequently it cannot be doubted that the respondent,
who as an agent of the complainant's father was entrusted
with the amounts, showed false expenses and thereby kept
the amounts with himself.
In the face of these facts and
also on the finding that the explanation given by the respondent cannot be accepted, the respondent cannot escape
conviction 1)nder section 409 l.P.C. as that was "the only
charge framed against him by the trying Magistrate".
The statement of account (Ex. P.l) as well as the correspondence
between the appellant and the complainant's father, who was his
client, clearly show that thue was mutual accounting and adjustment
between them. The mere fact that certain amounts were in-the hands
of the appellant and the accounts submitted were incorrect would not
lead to the inevitable conclusion that the
appellant committed
criminal breach of trust in respect of these items.
The complainant, who was
a junior attached to
him and was
looking
after his cases could himself easily find out the discrepancies in tlie
accounts and in a normal course he wonld have drawn the attention
of his senior on receipt of the statement of account in February 1965.
The accused in his statement under section 342, Criminal Procedure
Code, stated, inter alia, as follows :-
"Typing error has occurred in the statement of account
of Ex. P-1.
The difference of Rs.
300.00 which has
occurred, bas been adjusted against my fees in Kothari Book
Depot's case at the instance of Suryakant. I have given a
receipt for it which is in possession of Suryakant. Surya
kant used to maintain account of Court expenses of Dinubhai's cases in a register.
That register is with Suryakant.
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Suryakant used to remain present in the court on each date
along with me.
He knows everything.
Nothing is
concealed from him.
There is Gadbad of money between
Suryakant and his father. Hence on the instigation of other
people this false case has been launched. Suryakant had got
typed the statement of account Ex. P-1 from the register".
On one side we have the solitary statement of the complainant.
Even his father is not there to corroborate him or even to show that
he authorised him to file the complaint. As against his statement, we
have the explanation of the appellant.
The trial court who had an
opportunity to see the complainant giving evidence did not choose
to rely on his version of the case and preferred to accept the explanation of the appellant. In this state of the evidence we fail to see how
the High Court, in an appeal against acquittal, thought it possible to
hold the charge as proved. While the complaint was filed on December 8, 1967, a few months earlier on May 16, 1967, a lawyer's notice
was addressed to the appellant on behalf of Dinubhai. We may extract
the following passage from that letter :
"My client has instructed me to call upon you to remit
to him the balance of Rs. 1700/- lying with you (after
deducting your fees of Rs. 3300/-
from the amount of
Rs. 5,000/- paid to you) within 24 hours of the receipt Of
this reply otherwise my client will not only place the matter
before the Bar Council of M.P. but, if so advised, wm also
file a suit for its recovery against you at your cost and consequences which please note".
This would clearly show that neither Dinubhai nor his lawyer ever
thought of attributing any dishonest intention or criminal intent to the
appellant. In view of this Jetter it is not possible to accept the sole
testimony of the complainant imputing dishonest intention on the part
of the appellant.
We are clearly of opinion that there was no sufficient ground for the High Court to interfere with the acquittal in iliis
case when the reasons given by the trial court were weighty and
cogent and there was no compelling justifkation to take a contrary
view.
At the conclusion of the argument by Mr. Khan on behalf of the
complainant pressing for convictioii of the appellan~, Mr.
Pa1_1jwani,
appearing on behalf of the State, fairly enough, did not thmk it
proper to support the judgment of the High Court.
In the result the appeal is allowed.
The j1.1dgment of the Higlt
Court is set aside. The appellant shall be discharged from his bail
bond.
P.B.R.
Appeal. allowed.