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 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: (a) Sales Book (Mill Area) for 1958. (b) Collection Register from 2nd January, 1958 upto 15th July 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 accused's dues on account of commission earned on the basis of sales effected by him for the years 1957 and 1958. The complainant's 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 salesman's collection being shown to you. As far as your client's 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 Register --- This book cannot be produced for your inspection. Only an attested copy of the page showing security deposit by our client can be supplied. 6. Accused's Commission Account- Will be produced. Please supply the particulars asked for so that the necessary papers may be produced for your inspection by 22nd August, 1959." ********** ********** The documents were not produced. In the cross-examination of some witnesses for the complainant a suggestion was made that these documents were withheld because they would have demonstrated that the appellant had deposited the money with the cashier. A.C. Burman (page No. W. 7) was questioned and he replied as follows: ". . . . . I know that defence wanted the production of Sale Book, Agency Ledger and the Register containing the commission of accused. The documents were not produced as it was not possible to produce the same without particulars. There are 20 Sale Books of 1958. It is not a fact that the books were not produced as they would show that the complaint is false. . . . ." The appellant produced no evidence in rebuttal of the prosecution case. The Presidency Magistrate recorded a judgment of acquittal on March 7, 1960. He was of opinion that the only, question was whether the accused had deposited the amount with the cashier of the company. He held that the complainant had not been able to disprove the claim of the accused (appellant) that he had made the deposit. The learned Magistrate pointed out that some of the documents which the accused (appellant) had asked for were not produced by the complainant and the benefit of the doubt ought to go to the accused (appellant).
(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. "After hearing the arguments on both sides it appears to be necessary to take certain additional documentary evidence for arriving at a just decision in the case. The documents in question are the agency ledgers for 1958 relating to the selling agents Md. lsaq and Sons and Bombay Fancy Stores; and the collection book Part 1 of 1958 which supplements the collection book Part II which was marked as Ext.19. The Presidency Magistrate S. N. Sanyal or his successor Magistrate will please take the necessary evidence so that the above documents and registers are formally proved and allow the accused an opportunity to cross-examine the witnesses proving the documents, and then transmit the records with the registers and documents to this Court within a period of six weeks from the date." The complainants thereupon produced the documents as ordered and examined two witnesses in proof of the documents. The appeal was then heard and allowed and the acquittal of the appellant was set aside and he was convicted and sentenced as already stated. The High Court held that there was overwhelming evidence to prove the receipt of the three sums by the appellant and that the additional evidence demonstrated clearly that the money received by the appellant was not deposited with the cashier of the company. The appellant has filed this appeal by special leave, and it is contended that the High Court acted beyond the jurisdiction conferred by S. 428 of the Code of Criminal Procedure in receiving additional evidence which has enabled the prosecution to improve its case. This is the only point which was argued and which we need consider, because, if the evidence was rightly received, there is no doubt that the conclusion of the High Court on fact is correct.
(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.;