Judgment

GOSWAMI, J. - This appeal by special leave is directed against the judgment of the High Court of Madhya Pradesh convicting the appellant under S.409, I.P.C. and sentencing him to one years rigorous imprisonment and to a fine of Rupees 250/-, in default further rigorous imprisonment for three months, in appeal against acquittal at the instance of the complainant (first respondent herein).

2. The appellant is a senior lawyer of 25 years standing in Indore and the complainant was acting as his junior. The complainants father, Dinubhai, was the senior partner of a firm of Chartered Accountants, M/s. Dinubhai & Co., with its registered office in Bombay and a branch office in Indore. The Indore office was looked after by the second partner, M.C. Mehta. It appears that the firm was dissolved on July 5, 1960, when Mehta ceased to be a partner and Dinubhai appointed the appellant as counsel and attorney for filing suits and for recovering dues from various parties. Dinubhai filed a suit, being suit No.13 of 1962, for recovery of Rs.12,500/- in the court of the Third Additional District Judge, Indore, impleading M. C. Mehta and one Chandulal Shah as defendants in that suit. Although the suit was decreed, it appears there were two cross appeals against the decree in the High Court, one by Dinubhai and the other by Chandulal Shah. The appellant was appearing for Dinubhai in both the appeals. He received some amounts in advance from Dinubhai and submitted a statement of account of Shri Dinubhai (Ex.P-1) dated February 9, 1965, wherein two items, namely, Rs.210/- and Rs.110/- were mentioned as being towards "paper book charges" respectively on 21-4-1964 and 22-9-1964. The entry of 22-9-1964 shows that the amount of Rs.110/- is one of several items mentioned therein as expenses incurred in the appeal filed by Chandulal Shah against Dinubhai. So far as the items mentioned in Ex.P-1 on 21-4-1964 including the last item of Rs.210/-, there is no mention whether the expenditure was actually incurred on that date.

3. The complainant was not pulling on well with his father for some reason or other and also parted company with his senior, the appellant. He filed a complaint against the appellant on December 8, 1967, making allegations under Ss.409, 468 and 474, I.P.C. Ultimately the appellant was charged under S.409, I.P.C. with regard to the amounts of Rs.210/- and Rupees 110/- which were mentioned in the statement of account (Ex.P-1) received by the complainant on February 10, 1965. The complainant examined himself and a clerk of the High Court to prove that no paper book charges were deposited on the dates mentioned in the accounts. On the other hand a sum of Rs.26.50 was deposited as paper book charges on March 18, 1965, in the particular appeal.

4. The appellant denied the charge and stated that there was a typing error in the accounts and the actual figures should have been Rs.21/- (and not Rs.210/-) and Rs.10/- (and not Rs.110/-). When the appellants attention had been drawn to these amounts he admitted these to be typing errors and asked for adjustment of the amount of Rs.300/- towards his fees in the case of Kothari Book Depot.

5. It is rather curious that a criminal complainant should have been lodged against the appellant nearly three years after the receipt of the accounts by the complainant.

6. The trial Court acquitted the accused (appellant herein) by observing as follows:-

"To sum up the prosecution has been launched after inordinate unexplained delay, there is no clear and conclusive evidence of the criminal intention and dishonest mental act of the accused, the real aggrieved person has not come with the complainant but has already sought the alternative remedy in Civil Court which is being already pursued. The question whether or not the adjustment made by the accused towards his fees was proper can more appropriately be decided by Civil Court. Accused having reasonable claim against the complainant for any equivalent sum of mon