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Supreme Court Of India
RAJESWAR PRASAD MISRA
Versus
State of West Bengal
Decided On : May 6, 1963
CRIMINAL PROCEDURE CODE, 1973 - SECTION 428 - ADDITIONAL EVIDENCE - DISCRETION OF APPELLATE COURT - LIMITS - FAILURE OF JUSTICE - ORAL EVIDENCE - PRESUMPTION.
Fact of the Case:
The appellant, a traveling salesman, was convicted of criminal breach of trust for failing to deposit money received from agents with the company's cashier. He claimed to have deposited the money and alleged that the case against him was retaliation for a dispute with a supervisor. The appellant served a notice to produce certain documents during the trial, but the complainant's counsel objected to producing some of them. The Magistrate acquitted the appellant based on the failure to produce the documents.
Finding of the Court:
The High Court exercised its discretion under Section 428 of the Code of Criminal Procedure to take additional evidence, including the documents requested by the appellant. The High Court found that the oral evidence showed that the appellant had not deposited the money and that the interests of justice and fair play demanded that the additional evidence be taken.
Issues: 1. Whether the High Court erred in exercising its discretion under Section 428 of the Code of Criminal Procedure to take additional evidence. 2. Whether the appellant was deprived of the benefit of a presumption drawn against the complainant from the failure to produce the documents.
Ratio Decidendi: 1. The appellate court has a wide discretion to order a retrial or take additional evidence to prevent a failure of justice. 2. The power to take additional evidence must be exercised sparingly and only in suitable cases. 3. Additional evidence may be necessary for a variety of reasons, including to ensure that the accused has a fair opportunity to present their case. 4. The order to take additional evidence should not be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise.
Final Decision: The appeal was dismissed.
Judgment
M. HIDAYATULLAH, J.
( 1 ) THE appellant Rajeswar Prosad Misra, who has been convicted under S. 408 of the Indian Penal Code on three counts and sentenced in the aggregate to suffer rigorous imprisonment for one year and to pay a fine of Rs. 2,000 (in default 6 months further rigorous imprisonment), was a travelling salesman of Messrs. Dabur (Dr. S. K. Burman) Private Ltd. The area of his operation was the Suburbs of Calcutta and the Mill Area. His duty was to secure orders from Agents and to effect delivery of goods to them in the Companys vans. He was required to receive payments from the agents and to deposit the money with the cashier of the Company. The three charges on which he was tried and convicted were: on 10th and 19/02/1958 he received, on behalf of the Company, sums of Rs. 300 and Rs. 240 respectively, from a firm Isaq and Sons and on 23/05/1958 a sum of Rs. 1502 from Bombay Fancy Stores, but failed to deposit these sums with the cashier. A complaint was accordingly filed against him in the Court of the Chief Presidency Magistrate, Calcutta on 29/08/1958,. The charges were framed against him under S. 408 Indian Penal Code on 16/07/1959. The prosecution proved the receipt of the money by him and his failure to deposit it with the cashier. His defence was that he had deposited the amount and that the case was started against him as a counter-blast to a dispute between him and V. D. Srivastava, sales supervisor, who had taken away certain documents from him and in respect of which he had filed a case against Srivastava, S. N. Mukerjee. General Manager, R. C. Gurman, Managing Director and others before the Police Magistrate, Alipore. On 17/08/1959 the appellant served through counsel on the complainant a notice to produce in court on 20/08/1959 the following documents: (A) Sales Book (Mill Area) for 1958. (B) Collection Register from 2/01/1958 upto 15/07/1958. (C) Challans for the year 1958 as per parcel No. etc. (entered in the related sale books) of Agent No. 1026, 1185, 296, 1021 and 181 (D) Agency Ledger for the year 1958. (E) Staff Security Deposit Register. (F) Relevant register/statement showing accuseds dues on account of commission earned on the basis of sales effected by him for the years 1957 and 1958. THE complainants counsel replied to the notice as follows:"your request to produce certain books cannot be complied with for the objections noted against the items separately. 1. Sale Book - This book cannot be produced unless you specify either the agent or the parcel number. On furnishing particulars the relevant entries will be shown.
( 2 ) COLLECTION Register- We have objection to the other salesmans collection being shown to you. As far as your clients returns are concerned they have been filed, if anything more relating to your client is necessary we will produce that on getting particulars.
( 3 ) CHALLANS for the year 1958 --We have no objection to produce them for your inspection.
( 4 ) AGENCY Ledger for 1958--Please supply particulars. The number of agents must be furnished.
( 5 ) STAFF Security Deposit Registerthis book cannot be produced for your inspection. Only an attested copy of the page showing security deposit by our client can be supplied.
( 6 ) ACCUSEDs Commission Account- Will be produced. Please supply the particulars asked for so that the necessary papers may be produced for your inspection by 22/08/1959. "
( 7 ) MR. Chakravarti contends that the discretion under S. 428 is subject to the same conditions as those in S. 423 and which were laid down in Abinash Chandra Boses case, AIR 1963 SC 316. He lays special emphasis on the condition that the prosecution should not be given a second chance to fill up the gaps in its case. He submits that this has been done here. Mr. Sarjoo Prasad on the other hand explains the Abinash Chandra Boses case, AIR 1963 SC 316 with the aid of Ukha Kolhes case, AIR 1963 SC 1531 and submits that in the latter, this Court gave an exhaustive list of circumsta
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