EMPEROR Vs. VINAYAK LAKSHMAN BHATKHANDE

JUDGEMENT

(1.) The appellant has been convicted by the Chief Presidency Magistrate, Bombay, under Section 408 of the Indian Penal Code, of having, while a servant in the employment of Rai Bahadur Seth Tricumchand and his son, between April 30, 1927, a July, 6, 1927, committed breach of trust in respect of an aggregate sum of Rs. 19,651-11-3, and is sentenced to six months rigorous imprisonment and a fine of Rs. 1,000, in default six months further rigorous imprisonment. The appellant has appealed from his conviction and sentence.

(2.) Mr. Kolaskar, on behalf of the appellant, has raised a preliminary point, that the trial before the learned Magistrate was vitiated by a certain procedure adopted by him. The procedure complained of is that while Mr. Kolaskar was finally addressing the learned Magistrate on behalf of the appellant, the Magistrate suggested to him that in lieu of his speech he might substitute a written address which the Magistrate would read and take into consideration. Mr. Kolaskar acceded to that request and the case was postponed to enable him to write out his address. At the nest hearing Mr. Kolaskar handed in his written address to the learned Magistrate who heard him further on some points arising out of that address and thereafter directed that Mr. Thanawalla, counsel for the prosecution, should write out his comments on the written address of Mr. Kolaskar and file it in the Court. Mr. Kolaskar complains that he was given no opportunity either of considering or replying to the written comments which Mr. Thanawalla subsequently filed in Court, and that the learned Magistrate delivered his judgment without calling upon the appellant's counsel to reply to the comments of Mr. Thanawalla. Mr. Kolaskar contends that according to the well established practice of our Courts, particularly in criminal matters, m trials where the accused has not called any evidence on behalf as in this trial, his counsel is entitled to the last word in addressing the Court on the case; that right, he says, was denied to him in this case, and hence the trial is vitiated.

(3.) The learned Magistrate's account of what happened on this occasion is set out in his judgment, as follows : After Mr. Thanawalla finished addressing me I heard Mr. Kolaskar and in order to save time asked him to put down in writing the contentions in the form of categorical propositions. This be acceded to and I postponed the case to enable him to do so. The result was that the learned Counsel put before me a lengthy address whioh after perusing I heard the learned Counsel (in some points which required clearing up. I asked Mr. Thanawalla also to put down his arguments in writing which he also has done. The two addresses of the learned Counsel will form part of the record, I have carefully considered the evidence and the arguments advanced and I have no doubt in ray mind that the charge is proved and the accused is guilty.