SURESH T KILACHAND Vs. SAMPAT SHRIPAT LAMBATE

JUDGEMENT

(1.) :- An important but rather unusual point has arisen in this and in the companion set of eleven applications which concerns the inherent powers of the High Court, the issue raised being whether in exercise thereof it is permissible to recall a final judgment that has already been signed. The respective parties have argued the point in detail, and before addressing myself to the law on the subject it is necessary to preface the judgment with relevant facts.

(2.) IT is desirable to commence the narration with the statement that the offences alleged relate to the period between 1964 and 1969, the prosecutions were commenced in 1975, they concluded in 1979 against which an appeal was filed in 1980 and for some unstatable reasons, the appeal was just not listed for disposal until the office was specifically directed to list all the old pending matters and ultimately on 2 1/08/1991 this and the companion appeals were disposed of through judgments. On 6/09/1991, an application was filed by the original accused, who is the present applicant, wherein the first prayer is that the judgment dated 2 1/08/1991 be set aside and that consequentially the appeal be reheard, with the added prayer that in the meanwhile the order dated 21/08/1991 be stayed. The essential ground canvassed in the application is set out in paragraph (6), which reads as follows:- 6. The Applicant had engaged one Mr. Shelim Samuel, Advocate to act and appear for him in the said Criminal Appeal. The Applicant says that he did not know Mr. Samuel personally and had only engaged him as he had been referred him. The Applicant had executed a Vakalatnama in favour of Mr. Samuel to act, appear and plead for him in this matter. Mr. Shelim Samuel expired a few months ago on 4-11-90. The Applicant says that he was totally unaware that Mr. Samuel expired. Thereafter the matter suddenly appeared on, Board in August, 1991, after a lapse of about 11 years since filing of the Appeal. Since the Applicant's Advocate had died (unknown to the Applicant) and the matter appeared on Board suddenly after 11 years, the Applicant was unaware of the fact that the matter was on Board for Hearing. Accordingly there was no one present on behalf of the Applicant when the Appeal reached hearing. "

(3.) THE applicant, at the relevant time, was the Chairman and Managing Director of the Digvijay Spinning and Weaving Co. Ltd. In July 1969, this Company was taken over by the MSTC because it had turned into a sick unit. The applicant is an industrialist of some status and he claims to be the Chairman and Director of several large Companies. As stated in paragraph (6), according to him, he casually engaged the late Mr. Shelim Samuel on the recommendation of some other person and thereafter left the matter to the Advocate. Once a litigant has engaged an advocate, normally he is entitled to presume that the advocate will look after the proceeding and would intimate him as and when the same came up for hearing but this does not exonerate him from his own responsibility. According to the applicant, he lives mainly in Delhi and his son read about the decision in the Times of India and informed the applicant. But for the vigilance of the applicant's son and the news report, the applicant had for all intents and purposes totally lost track of the case and, therefore, did not follow it up. As the facts will presently indicate, the Applicant at the relevant time was holding a very vital position with the Mills in so far as he was the Chairman and Managing Director. The Prosecution has been instituted by the Secretary of the Digvijay Mills Employees' Co- operative Credit Society Ltd. The Prosecution is one of utmost seriousness because it concerns a relatively large amount of money which belonged to the Employees' Society and which they just cannot afford to lose. Furthermore, it needs to be noted that the amount of money virtually represented the crystallized wages of the employees and since the amount totals over Rs. 5,00,000/- the submission canvassed on behalf of the applicant that he had forgotten about the case is something that cannot be taken likely (lightly? ). Under the arrangement between the Society and the Company, which has been admitted by the Accused before the Trial Court, the repayment of the loans taken by them from the Society was recovered by deductions from their salary. This amount was collected out of the salary that would normally have been disbursed and was to have been transmitted to the Socieiy. The amount could not have been retained by the Accused who represented the management and could not have been used for any other purpose but was required to be forthwith paid over to the Society. The financial condition of the Mills was wholly irrelevant because, as indicated by me above, but for the deduction at source the amount would have been disbursed physically to the employees and it was, therefore, temporarily retained for the purpose of canalization to the Society. Whether the Mills were financially healthy or sick, whether they were making profits or losses were wholly inconsequential factors because the arrangement between the Mills and the Society which has been admitted by the Accused before the trial Court and the deductions also have been admitted, required the forthwith transmission of the deducted amount to the Society and the wrongful retention or diversion, for any other purpose would complete the offence of breach of trust. The fact that the payments were not made to the Society even though the amounts were deducted has been admitted by the Accused before the trial Court, but the reason for the nonpayment that is given is that the Mills were in a difficult financial condition. Certain other technicalities have been pleaded on the basis of which the Accused was acquitted.