# imrif.far 1Ra,.10n and Silk Mills v. TJltir·.Workmen

- **Citation:** [1963] 3 S.C.R. 564
- **Court:** Supreme Court of India
- **Decided:** 1960-12-21
- **Bench:** B. P. Sinha, K. N. WANCHoo, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/imrif-far-1ra-10n-and-silk-mills-v-tjltir-workmen-2645
- **Pages:** 7

## Headnote

Criminal Breach of Trust-Prosecution of lawyer by clientHand-writing expert neither called nor examined-Acquittal by
trial Magistrale-Retrial and examination of expqr/ directtrl by
High Court on appeal~Propriety.
The appellant, a practising lawyer engaged by the
respondent to investigate title in respect of a property which
the latter wanted to purchase, was prosecuted by him on a
charge under s. 409 of the Indian Penal C_ode for misappro·
priating a mm.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. 50001- had been asked for by the
11ppellant. This letter was challenged as a forgery by the
, ..
3 s.c.:R.
SUPREME COURT REPORTS
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 pro)lecution 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 practising lawyer in fiduciary relationship
with his client and directed that the appellant be retried by
another 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,crimioal case.
CRIMIN.AL APPELLATE JurusDIOTION: Criminal
App~al No. 119 of 1961.
Appeal from the judgment and order dated
December 21, 1960, . of the Calcutta High Court in
Cr. A. No. 423 of 1958.
P: .K. Ohakravarty, for the appellant.
S. 0. Mazumdar, for respondent No. 1.
D. N. Mukherjee,
P. K.
Mukherjee
for
P . .K. Bose, for the respondent No. 2.
1962. Augnst 3. • The Judgment of the Court
w~a,dEjlivered by
SINHA, C.J.-This appeal, on a certificate of fitness .granted 1by the High Court under Art. 134(1) ( 0 )
190ll
Abina:rh C~an//ra
Bose
y,
Blmal Ch'andra Bou ·
8inAa C.J.
196S
Abint.:tsh Clra..ndra
'
/!ose ·
v.
{l•ma~ <~:haiidr3_ ~1
Sinha C •. 1 •
. ;
566
SUPREME COURT REPORTS (1963]
of the Constitution, is directed against the order of
a Division Bench of the Calcutta High Court,
dated DecembP,r 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
b~
given later.
It( appears that the appellant, who is 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 applicatian 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.

## Text

•
1903
..imrif.far 1Ra,.10n and
Silk Mills
v.
TJltir·.Workmen
<;hJj~dragadkar J.
19~11
'564
SUPREME COURT REPOH.TS (1963)
·should· be treated as the invariable rate in' the· gratuity schemes. On the inatetial adduced before
us, we are not preparetl ·to hold that the basis
adoptPd by the award under appeal ·has made
either a violent or radical departure fromlthe
pattern prevailing in the same industry in the
''unjab or is
otherwise unjustified on the merits.
The fact that we decline to interfere with the rate
prescribed by the award under appeal does not also
mean that according to us, that rate should be
adopted in other cases without reference to the
relevant facts in each tlf them.
The result is, the awar<l is modified by prescribing a ceiling of 15 month's basic wages.
The
rest of the award is confirmed.
There would be
no order as to costs.
ABINASH CHANDRA BOSE
v.
BIMAL CHANDRA BOSE
(B. P. SINHA, C, J., K. N. WANCHoo and
J. c. SHAH, JJ.)
Criminal Breach of Trust-Prosecution of lawyer by clientHand-writing expert neither called nor examined-Acquittal by
trial Magistrale-Retrial and examination of expqr/ directtrl by
High Court on appeal~Propriety.
The appellant, a practising lawyer engaged by the
respondent to investigate title in respect of a property which
the latter wanted to purchase, was prosecuted by him on a
charge under s. 409 of the Indian Penal C_ode for misappro·
priating a mm.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. 50001- had been asked for by the
11ppellant. This letter was challenged as a forgery by the
, ..
3 s.c.:R.
SUPREME COURT REPORTS
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 pro)lecution 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 practising lawyer in fiduciary relationship
with his client and directed that the appellant be retried by
another 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,crimioal case.
CRIMIN.AL APPELLATE JurusDIOTION: Criminal
App~al No. 119 of 1961.
Appeal from the judgment and order dated
December 21, 1960, . of the Calcutta High Court in
Cr. A. No. 423 of 1958.
P: .K. Ohakravarty, for the appellant.
S. 0. Mazumdar, for respondent No. 1.
D. N. Mukherjee,
P. K.
Mukherjee
for
P . .K. Bose, for the respondent No. 2.
1962. Augnst 3. • The Judgment of the Court
w~a,dEjlivered by
SINHA, C.J.-This appeal, on a certificate of fitness .granted 1by the High Court under Art. 134(1) ( 0 )
190ll
Abina:rh C~an//ra
Bose
y,
Blmal Ch'andra Bou ·
8inAa C.J.
196S
Abint.:tsh Clra..ndra
'
/!ose ·
v.
{l•ma~ <~:haiidr3_ ~1
Sinha C •. 1 •
. ;
566
SUPREME COURT REPORTS (1963]
of the Constitution, is directed against the order of
a Division Bench of the Calcutta High Court,
dated DecembP,r 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
b~
given later.
It( appears that the appellant, who is 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 applicatian 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 s. 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
defence 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 respondent) examined
.himself and a number of witnesses. He also adduced
in evidence a certain document, markeed Ex. 1,
purporting to be a letter in the hand writing 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 contained writings in the hand of the complainant
showing that there was correspondence in the matter
I
~ I
3 S.C.R.
SUPREME COURT REPORTS
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, oro,l and
documentary, came to the conculusion that the case
against the accused had not been proved and acquitted him. The complainant preferred an appeal tD the
High Court against the order of acquittal, which was
heard by a Division Bench. Tbe 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
tho genuin,mess 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
a
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 reasons for the unusual course it took in this case:
A.binJBh Oha.1dr 1
Bos•-
·
v.
Bimal Chandra 1'm,-
Sinha C.J,
1968
Abina sh 'Cflond1 /J
BO Se
v.
B1lnal C!raitdrtl BOse
Sinha C.J.
568 SUPREME ·COURT REPoRTS-{i963j
"Thus there can be no doubt that this
was a c'locument 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 forgeries just as at the bottom of the document
the word 'yes' and the signature of the. respondent with date were also forgeries. This
case was clearly put by the respondent to
Bimla Krishna Sen and it was suggested to
him that the impugned portions of the documRnt were clear forgeries made by the appellant in order to falsely implicate the respon~
dent. It must be said that inspite of this·
challenge, the appellant took no steps whatever 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
case 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 evidenc9.
In one sense that comment was justified; but:i
in a case of this kind between law1er and
client we think the matter• cannot be 0left·
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•
j
7
>
3 S.GJt.
; SUPREME COWT REPORTi
569
.
'
should be spared whicli might ensure comp: · · _
19B~
lete justice ·between the parties. If it were. . - b. 77 d
an ordinary case bet'Ween one litigant and. A tnasB~ean Tl
another, we might have hesitated at this dis-
. l c v. d,
f .
t
d
h
. 'b k
Bima
han ra Be,.
ta.nee o time
o sen
.t e case ac even
though the prosecution did not avail of the
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 iμ:very exceptional circumstances. In this .case, the. qomp)aintant
had the fullest opportunity of 8.~ducing · 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 the1evidence adduced by
it before the trial Court. That Court was ·not, satisfied that that evidence was
adequ~tely; .r.elfable
to bring the charge home :to the accused .. The
accused was thus acquitted. On appeal, it ~as
open to the Hight Court to take a' different view; of
the e\"idence, if the facts and circumstances placed
before it· could lead to the. conclusion that the
a.ppreciatfon of the evidence , by the, trial Court
was so . thoroughly erroneous as ~~ .be.·wholly unacceptable to the Appellate Cour.t. 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 oonvictioi:J..
But it
should, not have put the accused to_the botherstion
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
i1 open to the Court of Appeal, against an order
of a.aquittal, to order a retrial for the reasons that
' Sinha C.J.
1161
~bimtsh Ch1ntlra
Bose
'
..
n,im•I Chontira •ose
Sinha C.J.
570 ·
SUPREME COURT REPORTS [1963]
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 the evidence that it was
ready and willing to produce. That being so, the
High Court, in our juilgment, 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 aBd 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 profes- ·
sional 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
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 pr!)ferential treatement
when he is hauled up on a criminal charge, even
as he is not subject to any additional disability because the case was between a lawyer and his olient.
· There was no relationship of lawyer and client so
far as the criminalcase was concer·ned.
Hence, in
our opinion, the order of retrial passed by the High
Court is entirely erroneous and must be set aside.
Appeal al'lowed.
. ' .
!.
.(
I