# SUSHIL KUMAR GUPTA v. JOY SHANKAR BHATIACHARYYA

- **Citation:** [1970] 3 S.C.R. 770
- **Court:** Supreme Court of India
- **Decided:** 1970-02-23
- **Case number:** Criminal Appeal No. 131 of 1967
- **Bench:** A. N. Ray, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sushil-kumar-gupta-v-joy-shankar-bhatiacharyya-4964
- **Pages:** 8

## Headnote

B
Criminal Trial-Secretary of
co.operative
society
charged
under
ss. 408 and 411 AJ.P.C.-Joint trial with
abettors-Acquittal of abettors-Effect on coriviction of the principal accused.
Criminal breach of trust-User by
accused of
money
entrusW!d,
contrary to rules-Ratification by Directors-No power to ratify-Effect of
Misjoinder of chargts-No prejudice to accused.
Constitution of India, 1950, Art
134(1) (c)-Certificate by High
Court-Judicial discretion to be exercised by High Cour,,
c
The appellant, who was the Secretary of a Cooperative Society and
was responsible for the cash and
maintenance of the accounts of the
D
Society, was charged with the offences of criminal breach of trust and
falsificatiol\ of accounts under ss. 408 and 477-A, I.P.C. He was tried
along with 5 others who were charged with the offence of abetment of
the offences.
The, trial court acquitted all of !hem, but the appellate
court (the Court of Judicial Commissioner) convicted the appellant and
acquitted the others. The appellate Court held that the appellant had
advanced money against the rules of the Society and also 10 various persoflb
not entitled to it, that the .appellant had thereby committed criminal breach
E
of trust and either mi>.appropriated or misapplied the funds of the Society
dishonestly to benefit himself or his relations and friends. The appellate
Court certified that the case was a fit one for appeal to this Court under
Art. 134(t)(c), but, the order granting the certific&te did not "disclose on
its face what exactly was the difficulty of the appellate Court and what
question of outstanding difficulty this Court was to settle.
in appeal to this Court,
F
HELD: (I) The acquittal of the co-accused was not based on the
finding that there was no
falsification of
accounts or
embezzlement.
Therefore, the appellant could n.ot contend that no offence was committed
because of the acquittal of the co-accused. [773 G-DJ
(2) On the finding of the appellate court, it was not a mere civil liability of the appellant. The appellant's manner of dealing with the money
entrusted to his custody constituted criminal breach of trust.
The Directors had no authority under the bye-laws to give any directions contrary
to the bye-la\VS and so, could not ratify the
violation of the bye-laws.
Any resolution ratifying the use of trust money contrary_ to the directions
contained in the bye-Jaws would not validate, the breach of the bye-laws.
[7750; 776 A-CJ
- (3) There was no misjoinder of charges and no prejudice was caus-ed
to the appellant. [776 F]
( 4) . The appellate Court should not have granted the certiJicate, under
Art. 134(\)(c) in the present case. The word 'certify' in "the
Article
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s. K, GUPTA v. JOY SHANKAR (Dua, J.)
771
postulates the exercise of judicial discretion by the appellate Court and the·
certificate shcuid ordinarily show on the face of it that the discretion was
invokcM ano properly exercisCd.
This Court should be in a position to
koow that the appellate Court has not acted mechanically but bas appli«
its n1ind. n certificate under this clause is impermissible on questions of
fact.
\Vhen the case does not disclose a substantial question of law or
principle the certificate granted by the appellate Court is liable to be
revoked by this Court, though such. pl'in1a facie non-disclosure would not
by itse\t :mtomatically invalidate the ccr'ificate. [777 A-Cl
CRIMINAL
APPELLATE
JURISDICTION : Criminal Appeal
No. 131 of 1967.
Appeal from the judgment and order dated January 9, 1967
of the Judicial Commissioner's
Court Tripura,
Agartala in
Criminal Appeal Case No. 8 of 1963.
M. K. Ramamurthi, J. Ramamurthi and Vineet Kumar,
for
the appellant.
H. R. Khanna and R. N. Sachthey, for the respondent.

## Text

770
SUSHIL KUMAR GUPTA
v.
JOY SHANKAR BHATIACHARYYA
February 23, 1970
A
[A. N. RAY AND I. D. DUA, JJ.]
B
Criminal Trial-Secretary of
co.operative
society
charged
under
ss. 408 and 411 AJ.P.C.-Joint trial with
abettors-Acquittal of abettors-Effect on coriviction of the principal accused.
Criminal breach of trust-User by
accused of
money
entrusW!d,
contrary to rules-Ratification by Directors-No power to ratify-Effect of
Misjoinder of chargts-No prejudice to accused.
Constitution of India, 1950, Art
134(1) (c)-Certificate by High
Court-Judicial discretion to be exercised by High Cour,,
c
The appellant, who was the Secretary of a Cooperative Society and
was responsible for the cash and
maintenance of the accounts of the
D
Society, was charged with the offences of criminal breach of trust and
falsificatiol\ of accounts under ss. 408 and 477-A, I.P.C. He was tried
along with 5 others who were charged with the offence of abetment of
the offences.
The, trial court acquitted all of !hem, but the appellate
court (the Court of Judicial Commissioner) convicted the appellant and
acquitted the others. The appellate Court held that the appellant had
advanced money against the rules of the Society and also 10 various persoflb
not entitled to it, that the .appellant had thereby committed criminal breach
E
of trust and either mi>.appropriated or misapplied the funds of the Society
dishonestly to benefit himself or his relations and friends. The appellate
Court certified that the case was a fit one for appeal to this Court under
Art. 134(t)(c), but, the order granting the certific&te did not "disclose on
its face what exactly was the difficulty of the appellate Court and what
question of outstanding difficulty this Court was to settle.
in appeal to this Court,
F
HELD: (I) The acquittal of the co-accused was not based on the
finding that there was no
falsification of
accounts or
embezzlement.
Therefore, the appellant could n.ot contend that no offence was committed
because of the acquittal of the co-accused. [773 G-DJ
(2) On the finding of the appellate court, it was not a mere civil liability of the appellant. The appellant's manner of dealing with the money
entrusted to his custody constituted criminal breach of trust.
The Directors had no authority under the bye-laws to give any directions contrary
to the bye-la\VS and so, could not ratify the
violation of the bye-laws.
Any resolution ratifying the use of trust money contrary_ to the directions
contained in the bye-Jaws would not validate, the breach of the bye-laws.
[7750; 776 A-CJ
- (3) There was no misjoinder of charges and no prejudice was caus-ed
to the appellant. [776 F]
( 4) . The appellate Court should not have granted the certiJicate, under
Art. 134(\)(c) in the present case. The word 'certify' in "the
Article
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s. K, GUPTA v. JOY SHANKAR (Dua, J.)
771
postulates the exercise of judicial discretion by the appellate Court and the·
certificate shcuid ordinarily show on the face of it that the discretion was
invokcM ano properly exercisCd.
This Court should be in a position to
koow that the appellate Court has not acted mechanically but bas appli«
its n1ind. n certificate under this clause is impermissible on questions of
fact.
\Vhen the case does not disclose a substantial question of law or
principle the certificate granted by the appellate Court is liable to be
revoked by this Court, though such. pl'in1a facie non-disclosure would not
by itse\t :mtomatically invalidate the ccr'ificate. [777 A-Cl
CRIMINAL
APPELLATE
JURISDICTION : Criminal Appeal
No. 131 of 1967.
Appeal from the judgment and order dated January 9, 1967
of the Judicial Commissioner's
Court Tripura,
Agartala in
Criminal Appeal Case No. 8 of 1963.
M. K. Ramamurthi, J. Ramamurthi and Vineet Kumar,
for
the appellant.
H. R. Khanna and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
Dua, J.
Pursuant to a complaint by Shri Joy Shanker Bhattacharyya, the appellant Sushi! Kumar Gupta was tried in the court
of Assistant Sessions Judge, Tripura on the following charges :
" ( 1) That you in between the month of September,
1958 and July, 1959 at Agartala P. S. Kotwali being
a servant viz. Secretary in the
employment of
the
Tripura Central Marketing Co-operative Society Ltd.,
and in such capacity entrusted with certain property
to wit a total sum of Rs. 18,200 being the fund of the
Society committed criminal breach of trust in respect
of the said property and thereby committed an offence
punishable under s. 408 of the Indian Penal Code and
within the cognizance of this Court.
Secondly : that you in between the period of September, 1958 and July, 1959 at the same place being
a Secretary in the employment of the Tripura Central
Marketing Co-operative Society Lid., wilfully and with
intent to defaud, falsified certain books and other relevant ~apers. to wit cash book etc., which belonged to
the said society, your employer and thereby commiited
an offence punis)lable under s. 477-A of the Indian
Penal Code and within the cognizance of this Court."
As the appellant was tried jointly along with five others who
have been. acquitted and as it. was arg~ed on behalf of the appellant that m view of the acqutttal of his co-accused'·the appellant
772
SUPREME COURT REPORTS
(1970] 3 S.C.R.
also should have been acquitted, the charges against them may
also be reproduced :
"That Sushi! Kumar Gupta, Secretary of the Tripura Central Marketing Co-operative Society Ltd., in
between the period of September, 1958 and Jufy, 1959
at Agartala p.s. Kotwali committed the offence of criminal breach of trust in respect of Rs. 18,200 and that
you the aforesaid persons at the same place and time
abetted the said Shri Sushi! Kumar Gupta in the commission of the same offence of criminal breach of
trust in respect of the said amount which was committed
in consequence of your abetment and that you hii_ve
thereby committed an offence punishable under s. 109,
I.P.C. read with s. 408, I.P.C. and within my cognizance.
Secondly : that Shri Sushi! Kumar Gupta, Secretary of
the Tripura Central Marketing Co-operative Society
Ltd. in between the period of -September,
1958 and
July, 1959 at Agartala p.s. Kotwali committed the
offence of falsificaiion of accounts and that you the
aforesaid persons at the same place and time abetted the
said Shri Sushi! Kumar Gupta in the commission of the
same offence of falsification of account which was committed in consequence of your abetment and that you
have thereby committed an
offence punishable u/s
109, I.P.C. read with s. 477-A of the I.P.C. and within
my cognizance."
"The trial court acquitted all the six accused persons. An appeal
against the acquittal of all of them was preferred under s. 417
(3), Cr. P.C. in the court of the Judicial Commissioner, Tripura.
That court allowed the appeal against S. K. Gupta only and dismissed it as against the others.
S. K. Gupta was held guilty of
the offence of criminal breach of trust under s. 408, I.P.C. and
also of the offence of falsification of accounts under s. 477-A,
l.P.C. regarding the sum of Rs. 18,200. He was sentenced under
each count to undergo rigorous imprisonment for one year, the
sentences to be concurrent.
The convict S. K. Gupta has appealed to ibis Court on certificate granted under Art. 134 ( 1 )( c) of the Constitution. The
order granting the certificate does not disclose on its face what
exactly the difficulty of the court of the Judicial Commissioner is
and precisely what question of outstanding difficuliy this Court is
desired to settle. On behalf of the appellant his learned advocate
Shri Ramamurthy, however, addressed elaborate arguments questioning the order of the learned Judicial Commissioner allowing
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S. K. GUPTA V. JOY SHANKAR (Dua,/,)
773
the appeal against the appellant S. K. Gupta's acquittal. His
challenge was based on three main contentions.
The fourth point
that the learned Judicial Commissioner erred in law in considering Ex. P-59 to be admissible ii} evidence, in disagreement with
the trial court, according to which it was hit by s. 24, Indian Evidence Act, was not allowed to l;>e argued in this Court because
this ground was not taken in the grounds of appeal.
The first contention seriously pressed on behalf of the appellant is that in view o( the acquittal of his co-accused who were
tried along with him the court of the Judicial Commissioner was
wrong in law in holding that there was falsification of accounts
and embezzlement of the funds of the Tripura Central Marketing
Co-operative Society.
This submission is
unacceptable.
The
acquittal of the other co-accused as affirmed by the learned Judicial Commissioner is not based on the finding that there was no
falsification of accounts and no embezzlement of the funds of the
Society.
S. K. Gupta, appellant, it may be pointed out was the
Secretary of the Society since April 13, 1957 when the first general meeting of the Society was held and was in that capacity entrusted with its funds. He worked as such till August 10, 1960.
He was accordingly responsible for the cash and maintenance of
current accounts of the Society during the period in question.
Turning to the Bye-laws of the Society, bye-law no.
41
prescribes the duties of the Secretary. According to this bye-law ihe
Secretary has inter alia :
"(3) To make disbursement and to· obtain vouchers
and to receive payments and pass receipts, under the
general or sp.~cial orders of the Board of Direciors ·on
this behalf from time to time.
( 4) To keep all accounts and registers required by
the rules.
(13) To countersign cash book in token of the
balance being correct and to produce the cash balance
whenever called upon to do so by the Chairman or any
person authorised to do so ..
In the absence of the Secretary the Board of Directors may authorise the Manager to perform the duties
of the Secretary.
The Board of Directors may also authorise the Manager
to perform any of ihe duties of the Secretary to facilitate
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the working of the Society.
Receipts passed on behalf of the Society shall be
sigJned by the Secretary.
Share certificates and other-
774
SUPREME COURT REPORTS
[1970) 3 S.C.R.
documents shall be signed by the Secretary and one
member of Board of Directors jointly."
Byelaw 42 contains directions regarding advances against pro-
.duce of goods and clause ( 1) of this byelaw provides :
"(1) The Board of Directors shall, at the beginning
of the session, fix the amount of advance, indicating the
percentage of the market price of produce or goods
pledged with the society, that may be granted to a
member. Such limits may be fixed for difierent commodities and varied from time to time according to
fluctuation in markets or otherwise.
It shall also be competent for the Board of Directors to call on a borrower at any time before the due
date to repay a portion of the loan or advance issued or
to produce additional security for the outstanding Joan
or advance withln a time fixed by them, if in their opinion, there is fall or likely to be a fall in the market
value of the produce or goods pledged."
Under byelaw 44 loans may be granted to members in suitable
"Cases on such terms and conditions as regards individual and maximum limits, repayment of loan, rate of interest thereon etc., as may
be fixed by the Board of Directors from time to time. According tci
the learned judical Commissioner "the overall picture" emerging
from the evidence on the record, to quote his own words, it :
"(1) A sum of Rs. 18,200/- was said to have been
disbursed in 1958 and 1959.
(2) It was said to have been repaid in the last week
of June, 1959 towards the end of the co-operative year
of 1959 and Jong after the maximum period of 6 months
allowed by rule 42 ( 4) of the byelaws.
(3) The same amount was again said to have been
disbursed in a few days in the first week of July commencing with the next cooperative year (1959-60),
( 4) Except the 2nd and 4th respondents, the others
were not members of the Co-operative Society and in
this regard the !st respondent disregarded sub-rule ( 1)
of r. 42 of the byelaws.
( 5) The I st respondent ·did not obtain any general
or special orders of the Board of Directors to make the
disbursements and violated sub-rule ( 1) of r. 42 of Ext.
P-41.
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S. K. GUPTA v. JOY SHANKAR (Duo, J.)
775
(6) Ext. P-56 and P-59 show that the alleged collections of the monies in June 1959 was false and that
the accounts were got up.
(7) The fact that a discount Qf Rs. 10/- was paid to
cash a cheque on 29-6-1959 shows that the society had
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no funds on that day.
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(8) None of the alleged loanees was a Jute grower
and no jute was deposited in th" godowns of the society
before the advances were made and in this regard the
mandatory provisions of sub-r. (2) of r. 42 were also
disregarded by the 1st respondent.
( 9) A number of adjustments were made in the
Accounts to show that the sum of Rs. 18,200/- was
disbursed.
(10) The three persons to whom ultimately the
amounts were said to have been disbursed are interested
in the 1st respondent. The 4th respondent C. C. Das
Gupta is a relation of the 1st respondent and proved by
P. Ws 1, 6 and 8 and as admitted by the 4th respondent
himself in Ext. P-56. The 3rd respondent Sudhir Ranjan
Roy is a servant of D.W. 1 who is a co-Director of the
Match Factory and friend of the 1st respondent. The
3rd respondent Haradhan Deb was appointed by the 1st
respondent in the C.M.S. The 3rd respondent was also
an employee of the C.T.S. of which the 1st respondent
was a Director."
On the basis of these observations the appellant was held to
have committed criminal breach of trust and to have
either
misappropriated or misapplied the funds of the Society
dishonestly to benefit himself of his relations and friends.
Counsel failed to point out any legal infirmity in the final conclusion
drawn in the impugned order from the overall picture. Indeed,
counsel, after a faint attempt to find fault with this conclusion
felt constrained to admit that the money had been advanced
against the rules of the Society and also to the persons not entitled
to it, his only contention in support of the appeal being that it did
not constitute a criminal offence and that in any event the Board
of Directors of the Society having ratified the advances, the foundation for the criminal charge must be deemed to have disappeared.
We are unable to agree.
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The offence of criminal breach of trust is committed when a
person who is entrusted in any manner with property or with
dominion over it. dishonestly misappropriates it, or converts it
to his own use, or dishonestly uses it or disposes it Qf, in violation
776
SUPREME COURT REPORTS
[1970) 3 S.C.R
of any direction of law prescribing the .mode in which the trust
is to be discharged, or of any lawful contract, express or implied,
made by him touching such discharge, or wilfully suffers
any
other person so to do.
The appellant's manner of dealing with ·
the money entrusted to his custody clearly constitutes criminal
breach of trust.
Counsel was not able to point out any provision which empowers the Directors to prescribe the mode of
making advances, which violates or is in breach of, or contrary to
the Byelaws. If the Directors possess no· authority to give any
directions contrary to the byelaws they can scarcely claim or
assume power to ratify violation of the Byelaws in the matter of
dealing with the trust money.
Our attention was not drawn to
any over-riding provision conferring power on the Board
of
Directors to ratify use of the trust money contrary to the directions contained in the Byelaws. Exhibit P-27, the resolution of
. the Board of Directors dated January 10, 1960, on which reliance
in support of the argument was placed, merely states "investments made by the Secretary uptodafo are hereby approved" without pointing· out the provisions under which such approval could
validate breaches of the Byelaws.
Incidentally it may be mentioned that the learned Judicial Commissioner also entertained
some suspicion about the manner in which the meeting, in which
this resofotion was passed, was held.
This contention of the
counsel must, therefore, be repelled.
In the last submission the counsel made a grievance against
the joint trial of several accused persons on several items of embezzlement According to him there was a misjoinder of charges
which vitiated the trial.
In our opinion, charges under s. 408
and s. 4 77-A, Indian Penal Code, could, in the circumstances of
this case, be tried together and the joint trial of all the accused
was proper and lawful. Our attention was not drawn to any provision of law against the legality of the joint trial. In any event
no failure of justice in consequence of the joinder of charges was
pointed out, with the result that the question of misjoinder of
charges must be held to be of little conseq11ence at the stage of
appeal.
·
Before closing we may point out, as has repeatedly been said
by this Court, that there is normally no right of appeal to this
Court in criminal matters except in cases provided by Art. 134
(l)(a) and (b) of the Constitution. Clause (c) of this Article
empowers the High Court to certify cases to be fit for appeal to
this Court. The word "certify" is a strong word; it posiulates
exercise of judicial discretion by the High Court and the certificate should ordinarily show on the f~ce of it th.at the discretion
was invoked and properly· exercised. This Court should be in a
position to know that the High Court has not acted mechanically
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s. K. GUPTA v. JOY SHANKAR (Dua, /.)
777
but has applied iis mind. A certificate under this clause is impermissible on questions of fact and when a case does not disCiose
a substantial question of law or principle then the certificate
granted by the High Court is liable to be revoked by this Court,
though such prima facie non-disclosure would not by itself automatically invalidate the certificate. In the case in hand no substantial question of law or principle was made out'at the bar and
the certificate wa5 clearly misconceived though it vaguely states
that sevei:al questions of law are involved. The appeal fails and
is dismissed.
V.P.S.
Appeal dismissed.
uosupCIQ'!PJ70I-s