Judgement

SHAH, J. :- Mahendra Lal and Probhat Kumar Sarkar were the promoters and Alamohan Das was the first Chairman of the Board of Directors of the Great Indian Steam Navigation Company Ltd., Messrs. Das Brothers of which Alamohan Das was the sole proprietor became the managing agents of the Company in 1945. Only July 2, 1951, Das Group Ltd. of which also Alamohan Das was the principal Director took over the managing agency.

2. The Registrar of Companies West Bengal filed a complaint in the Court of the Chief Presidency Magistrate alleging that sometime between March 1, 1945 and December 31, 1947 a sum of Rupees 7,23,031-9-6 was advanced by the Company to the Managing Agents, Messrs. Das Brothers; that on July 2, 1951 Messrs. Das Brothers resigned from the managing agency and Messrs. Das Group Ltd., took over the managing agency; that Alamohan Das was at all material times a director of the company and also a director of Messrs. Das Group Ltd., and the sole proprietor of Messrs. Das Brothers; and that the complainant had reason to believe that Alamohan Das with other directors of the company had committed offences under Sections 86-D and 87-D of the Indian Companies Act, 1913. The complainant requested that a through investigation be made in the matter. The Chief Presidency Magistrate, Calcutta, referred the case to the police for investigation.

3. In the course of investigation of the complaint referred to him, Sub-Inspector J. N. Mukherjee filed a First Information against eight persons (including the five appellants in this appeal) charging them with having conspired to commit criminal breach of trust in respect of the company s funds, falsification of accounts and making false returns, balance-sheets and accounts, and in furtherance of the object of the conspiracy with committing offence punishable under Sections 409 and 477-A I. P. Code and under Section 282 of the Indian Companies Act, 1913. After investigation Sub-Inspector Mukherjee submitted on February 29, 1958, a report under Section 173 of the Code of Criminal Procedure in the Court of the Chief Presidency Magistrate for those offences against seven persons including the five appellants.

4. The Presidency Magistrate, 9th Court, to whom the case was transferred for trail, rejected the contention raised by counsel for the defence that to a charge made against a director in relation to the affairs of the company, the Indian Penal Code can have no application, and the prosecution, if any, may be instituted under the provisions of the Indian Companies Act alone. The Magistrate also held that it was open to the police officer to whom the case was referred for investigation to submit a charge-sheet of his own initiative and that the Court had jurisdiction to enquire into the charge so made without the sanction of the High Court. A revision application was filed in the High Court of Calcutta against that order, but the application was rejected.

5. Proceedings were than resumed by the Magistrate on December 5, 1961, and a large number of witnesses were examined before him and several documents were tendered in evidence. On December 3, 1965, the Presidency Magistrate committed the accused to stand trial for offences under S. 120B read with Ss. 409 and 477A, I. P. Code before the Court of Session. He observed :

"..having regard to the entire evidence on record and facts and circumstances of the case, I am convinced prima facie that good grounds exist for framing charge under Section 409 I. P. C. against accused Alamohan Das with charge under Sec. 120B read with Section 409, I. P. Code against (1) Alamohan Das, (2) Sisir K. Das (3) Nara Singha Pal, (4) Mohendra Lal Kundu and (5) Provat Kumar Sarkar, another charge under Section 467 read with Section 34 I. P. Code against (1) Alamohan Das, (2) Nara Singh Pal, and (3) Mohendra L. Kundu for forging Ext. 5, and last under Section 477A against (1) Alamohan Das, (2) Nara Singh Pal (3) Mohendra Lal Kundu, (4) Pravat Kumar Sarkar and (5