RAJESWAR PRASAD MISRA Vs. STATE OF WEST BENGAL

JUDGEMENT

(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 M/s. 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 Company's 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 19th February, 1958 he received, on behalf of the Company, sums of Rs. 300 and Rs. 240 respectively, from a firm Isaq and Sons and on 23rd May, 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 August 29, 1958,. The charges were framed against him under S. 408 I.P.C. on July; 16, 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 August 17, 1959 the appellant served through counsel on the complainant a notice to produce in court on August 20, 1959 the following documents:

(2.) The complainant then obtained special leave under S.417(3) of the Code of Criminal Procedure from the High Court of Calcutta to appeal against the acquittal. The appeal was heard by S. K. Sen and A. C. Roy JJ. On June 28, 1962, the learned Judges ordered the production of the documents in question and the taking of additional oral evidence to prove the documents. The order is brief and it may be conveniently set out here.

(3.) The appellant strongly relies upon a decision of this Court reported in Abinash Chandra Bose vs. Bimal Krishna Sen, AIR 1963 SC 316 and the respondents upon Ukha Kolhe vs. State of Maharashtra, another case of this Court which is to be found in the same volume at page No. 1531. Both sides have referred us to many cases decided by the High Courts defining the powers of the appellate Court to take additional evidence. The appellant contends that additional evidence could not be taken in the appeal against the order of acquittal in the present case.