1. Lawyer charged with criminal breach of trust under Section 409, Indian Penal Code, for misappropriating funds entrusted for a court deposit. (Para 2 )
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1962 Supreme(SC) 258
SUPREME COURT OF INDIA
3rd August, 1962.
B.P. SINHA, C.J.I., K.N. WANCHOO AND J.C. SHAH, JJ.
Abinash Chandra Bose, Appellant
Versus
Bimal Krishna Sen and another, Respondents.
Criminal Appeal No. 119 of 1961.
Advocates appeared
Mr. P. K. Chakravarti, advocate, for Appellant; Mr. S. C. Mazumdar, Advocate, for Respondent No. 1; Mr. D. N. Mukherjee, Advocate and Mr. P. K. Mukherjee, Advocate for Mr. P. K. Bose Advocate, for Respondent No. 2.
Advocates:
D.N.MUKHERJI, P.K.BOSH, P.K.CHAKRAVARTI, P.K.MUKHERJI, S.C.MAJUMDER
D.N.MUKHERJI, P.K.BOSH, P.K.CHAKRAVARTI, P.K.MUKHERJI, S.C.MAJUMDER
An appellate court cannot order a retrial after an acquittal simply because the prosecution failed to adduce all available evidence, provided the trial court gave a fair opportunity. The professional status of the accused does not justify deviating from the rule against multiple trials for the same offense.
Headnote:(A) Indian Penal Code - Section 409 - Criminal breach of trust - Retrial after acquittal - 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 in exceptional circumstances (Para 4).
(B) Appellate Jurisdiction - Scope of interference with order of acquittal - An appellate court may reverse a judgment of acquittal and convert it into a conviction if the appreciation of evidence by the trial court was thoroughly erroneous and wholly unacceptable; however, it cannot order a retrial simply because the prosecution failed to adduce all available evidence that could have been brought before the court of first instance (Para 4).
(C) Professional Status - Fiduciary relationship between lawyer and client - The fact that an accused is a practicing lawyer does not entitle him to preferential treatment nor subject him to additional disability or harassment in a criminal trial; the rules of criminal jurisprudence apply uniformly regardless of the professional relationship between the parties (Para 4).
Facts of the case:
A lawyer was charged with criminal breach of trust under Section 409 of the Indian Penal Code for allegedly misappropriating funds entrusted to him by a client for a court deposit. During the trial, the complainant produced a document to prove the transaction, which the accused challenged as a forgery. The complainant did not produce expert handwriting evidence. The trial court acquitted the accused. On appeal, the High Court set aside the acquittal and ordered a retrial to allow the complainant to produce expert evidence, citing the fiduciary relationship between the lawyer and the client as a reason to ensure complete justice.
Findings of Court:
The High Court misdirected itself in ordering a retrial. The prosecution had a full opportunity to adduce all necessary evidence during the first trial. The failure of the prosecution to call an expert witness does not justify subjecting the accused to a second trial.
Issues: Whether an appellate court can order a retrial after an acquittal on the grounds that the prosecution failed to produce all available evidence, and whether the fiduciary relationship between a lawyer and client justifies such a departure from standard criminal procedure.
Ratio Decidendi: Criminal jurisprudence prohibits subjecting an accused to a second trial for the same offense unless exceptional circumstances exist. If the trial court provided a fair opportunity to the prosecution to present its case, the appellate court cannot order a retrial merely because the prosecution failed to produce certain evidence. The professional status of the accused as a lawyer does not warrant a departure from these established rules of criminal law.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Prosecution sought retrial to adduce expert evidence on forged documents — Defense contended acquittal should stand as prosecution had full opportunity to present evidence. (Para 3 , 4 )
3. High Court erred in ordering retrial based on fiduciary relationship between lawyer and client, ignoring criminal jurisprudence rules against subjecting an accused to multiple trials. (Para 4 )
4. Appellate courts cannot order retrials because the prosecution failed to adduce all available evidence, provided the trial court gave a fair opportunity to the prosecution. (Para 4 )
5. Appeal allowed; order of retrial set aside and order of acquittal restored. (Para 1 , 4 )
6. Can an appellate court order a retrial if the prosecution failed to produce all available evidence?
No, provided the trial court gave the prosecution a fair opportunity to adduce evidence. A retrial cannot be ordered simply because the prosecution took a chance on the evidence presented and lost. (Para 4 )
7. Does a fiduciary relationship between a lawyer and client justify a retrial in a criminal case?
No. The rules of criminal jurisprudence apply equally to all. A lawyer is neither entitled to preferential treatment nor subject to additional disability or harassment, such as a second trial, due to the lawyer-client relationship. (Para 4 )
8. Under what circumstances can an appellate court interfere with an order of acquittal?
An appellate court can reverse an acquittal and convict the accused if it finds the trial court's appreciation of evidence was so thoroughly erroneous as to be wholly unacceptable. (Para 4 )
Judgment
SINHA, C.J.I. : This appeal, on a certificate of fitness granted by the High Court under Art. 134(1) (c) of the Constitution, is directed against the order of a Division Bench of the Calcutta High Court, dated December 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 be given later.
2. It appears that the appellant, who is a practicing lawyer, had been employed by the respondent to work for him to investigate the title to some property which the latters was about to purchase, sometime in October, 1952. The prosecution case was that the respondent had entrusted the sum of Rs. 5,000 to the appellant for depositing in Court in connection with an application 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. 5,000, which had been entrusted to him as a lawyer on behalf of the respondent. The appellant s defence was that the case against him was false and that he had been falsely implicated for reasons which need not be stated.
3. 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, marked Ex. 1, purporting to be a letter in the handwriting of the appellant, to show that Rs.4,200 being a portion of the amount of Rs. 5,000 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 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, oral and documentary, came to the conclusion that the case against the accused had not been proved and acquitted him. The complainant preferred an appeal to the High Court against the order of acquittal, which was heard by a Division Bench. The 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 acquittal, passed by the learned Magistrate, was not satisfied as to genuineness 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:
"Thus there can be no doubt that this was a document of considerable importance. According to the prosecution
