Judgment

BHAGWATI, J.: This is an appeal by special leave from the judgment of Mr. Justice K. C. Chunder of the High Court of Judicature at Calcutta in Criminal Revision No. 84 of 1952 setting aside an order of acquittal passed by the Presidency Magistrate, Calcutta in Case No. C/639 of 1951.

2. The Appellant was the Agent of the Calcutta branch of the Loyal Bank Ltd. from September 1938 to January 1948. The complainant, one Kshitish Chandra Mukherji opened an account with the said bank in about 1946 and he effected certain transactions in shares and securities through Messrs. J.M. Dutta, stock brokers at Calcutta. These shares and securities were purchased and sold by him on personal instructions given by him to the Appellant in that behalf and the purchase and the sale price of the shares used to be debited or credited as the case may be to his said account.

Towards April 1946 the complainant had with him 200 Burmah Corporation shares and 200 B. B. Petrol shares and it was his case that he left Calcutta towards the end of March 1946 entrusting these shares to the Appellant and only returned to Calcutta towards the middle of June 1948. The bank is the meantime encountered financial difficulties and was not in a position to pay the two cheques drawn by him, one dated 6-3-1948 for Rs. 348, and the other dated 23-6-1948 for Rs. 17,000. A certified copy of his account was obtained by him on 26-8-1948 and on going through the same he found that on 14-8-1946 a sum of Rs. 10,500, being the price of 15 Baranagar Jute Mills shares had been debited to his account.

On 27-3-1951 the complainant filed in the Court of the Additional Chief Presidency Magistrate, Calcutta a complaint charging the Appellant and one Dinesh Majumdar, Accountant of the said bank with offences under Ss. 409, 406, 477A and 114, Penal Code on the allegations that he had not given any instructions to the appellant for the purchase of the said 15 Baranagar Jute Mills shares, that he had never purchased the said shares, that the appellant and the said Dinesh Majumdar had misappropriated the amount of Rs. 10,500 by taking away the said amount which was lying in his account with the bank, that the appellant had not sold the 400 shares which had been entrusted to him and that the appellant as a banker with the help of the said Dinesh Majumdar, an officer of the bank had misappropriated the amount of Rs. 10,500 and 400 shares by falsification of the book of the bank.

3. The complaint and his witnesses were examined before the Presidency Magistrate, and on 6-9-1951 the complainant deposed that he never gave any written or verbal instructions to the appellant to purchases for him the 15 shares of the Baranagar Jute Mills, and that the appellant had misappropriated Rs. 10,500/- and the said Dinesh Majumdar had helped him in the misappropriation of the said sum. The charge in regard to the alleged misappropriation of the said 400 shares was evidently not pressed by him.

4. On the said evidence the Presidency Magistrate, on 6-9-1951 framed against the appellant a charge under S. 409, Penal Code of having committed on 14-8-1946 criminal breach of trust in respect of the said sum of Rs. 10,500/- misappropriation of the said money.

5. The appellant entered upon his defence and cross-examined the witnesses whose evidence was led on behalf of the prosecution. He also examined some defence witnesses and on an appreciation of the evidence thus led before him, the Presidency Magistrate came to the conclusion that the 15 shares of Baranagar Jute Mills were purchased under the definite instructions of the complainant. Having regard to the above finding he acquitted the appellant as also the said Dinesh Majumdar of the charge under S. 409, Penal Code as framed.

6. The complainant having failed in substantiating the charge which he had made against the Appellant, approached the Legal Remembrancer, Government of West Bengal with a request to prefer an appeal under S. 417, Criminal P. C. The Legal