Suresh T. Kalichand Vs. Sampat Shripat Lambate and Another - Court Judgment

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criminal - misappropriation - sections 406 and 409 of indian penal code, 1860 - respondent alleged criminal misappropriation of funds by appellant by filing criminal complaint before metropolitan magistrate - trial court while observing dispute to be of civil nature acquitted appellant - high court while reversing order of trial court convicted appellant under section 409 - held, charge being under section 406 high court was wholly unjustified in convicting appellant under section 409 and order of high court has to be reversed. - [m. hidayatullah, c.j.,; g.k. mitter,; k.s. hedge,; r.s. bachawat and; s.m. sik, jj.] the sales tax authorities directed that the sum realised as sales tax by the petitioners from their customers and paid over to the state should be refunded to the petitioners on condition that the petitioners passed on the amounts to their customers. since the petitioners did not fulfil the condition, the sales tax officer 'forfeited the sum under s. 21(4) of .the bombay sales tax act, 1953, by order dated march 17, 1958. on march 28, the petitioners filed a writ petition in the high court and contended that s. 21(4) was ultra rites the powers of the state legislature and was violative of arts. 19(1)(f) and 265 of the constitution and hence, they were not liable to repay the amount. the single judge dismissed the petition on the ground that the petitioners defrauded their customers and so were not entitled to any relief even if there was a violation of fundamental rights. the appellate bench of the high court dismissed the appeal on the ground that it would not interfere with the discretionary order of the single judge. on december 24, 1958, the collector attached the properties of the petitioners for recovering the amount as arrears of land revenue and the petitioners paid the amount in instalments between august 1959 and august 1960. on september 29, 1967 this court in kantilal babual v. h.c. panel, 21 s.t.c. 174 (s.c.) struck down s. 12a(4) of bombay sales tax act, 1946, corresponding to s. 2'1(4) of the 1953- act, on the ground that it was violative of art. 19(1)(f) inasmuch as the power conferred by the section was unguided, uncanalised and uncontrolled and so was not a reasonable restriction on the fundamental right guaranteed under the article. on the assumption that s. 21(4) of the 1953-act is also liable to be struck down on the same ground, on february 9, 1968, the petitioners flied a writ petition under art. 32 claiming a refund of the amount. the petitioners contended that they did not know that the section was ultra vires on the particular ground on which this court struck it down, that they paid the amounts under coercion or mistake, that the mistake was discovered on september 29, 1967 (the date of the judgment of this court) and that they were entitled to the refund under s. 72 of the indian contract act, 1872. on the questions: (1) whether the petition is liable to be dismissed on the ground of inches; and (2) whether the petition is barred by res judicata in view of the decision of the high court. held: (per hidayatullah, c.j., bachawat and mitter, jj.): (1) the petition must be dismissed on the ground of inches. per hidayatullah c.j.: article 32 gives the right to move this court by appropriate proceedings for enforcement of fundamental rights and the state cannot place any hindrance in the way of an aggrieved person. but once the matter has reached this court, the extent or manner of interference is for this court to decide. this court has put itself in restraint in the matter of petitions under art. 32. for example, this court refrains from acting under the article if the party had already moved the high court under art. 226 and if the high court had exercised its parallel jurisdiction. in such a case, this court would not allow fresh proceedings to be started under art. 32 but would insist on the decision of the high court being brought before it on appeal. similarly, in inquiring into belated and stale claims, this court should take note of evidence of neglect of the petitioner's own rights. for a long time or of the rights of innocent parties which might have emerged by reason of the delay. the party aggrieved must therefore move this court at the earliest possible time and explain satisfactorily all semblance of delay. it is not possible for this court to lay down any specific period as the ultimate limit of action and each case will have to be considered on its own facts. a petition under art. 32 is neither a suit nor an application to which the limitation act applies. further, putting curbs in the way of enforcement of fundamental rights through such legislative action might be questioned under art. 13(2). for, if a short period of limitation is prescribed the fundamental right might be frustrated. therefore, this court has to exercise its discretion from case to case, and where there is appearance of an avoidable delay and this delay affects the merits of the claim, this court will consider it, and in a proper case, hold the party disentitled to invoke its extraordinary jurisdiction. [830c, de. g--h; 831 a--b. c--e; 832 a--e] in the present case, the petitioners moved unsuccessfully the high court for relief on the. ground that the recovery from them was unconstitutional, but did not come up in appeal to this court. there is thus no question of any mistake of law. having set the machinery of law in motion they cannot abandon it to resume it after a .number of years because another person got the statute declared unconstitutional. they should have known the exact ground of unconstitutionality since every one is presumed to know the law; and pursued the ground in this court. not having done so, and having abandoned his own litigation years ago. this court will not apply the analogy of the article in the limitation act in cases of mistake of law and give him relief. [832 f--h; 833 a--b, c--e] per bachawat, j.: the normal remedy for recovery of money paid to the state under coercion or mistake of law is by suit. the right to move this court for enforcement of fundamental rights is guaranteed by art. 32, and no period of limitation is prescribed for such a petition. the writ issues as a matter of course if a breach of a 'fundamental right established, but this does not mean that in giving relief under the article this court may ignore all laws of procedure. the extraordinary remedies under arts. 32 and 226 of the constitution are not intended to enable a claimant to recover monies the recovery of which by suit is barred by limitation. in the absence any roles of procedure under art. 145(1)(c) this court may adopt any reasonable rule. for example. this court will not allow a petitioner to move this court under art. 32 on a petition containing misleading and inaccurate statements. similarly, the general principles of res judicata are applied where applicable on grounds of public policy. therefore, where the remedy in a writ application under art. 32 or art. 226 corresponds to a 'remedy in an ordinary suit and the latter remedy is subject to the bar of a statute of limitation, the court imposes on analogy the same limitation on the summary remedy in the writ jurisdiction even though there is no express statutory bar of limitation, on grounds of public policy and on the principle that the laws aid the vigilant and not those who slumber. [842 a--f; 843 a--f] in the present case, the petitioners were not labouring under any mistake of law when they made the payments, because, in their writ petition in the high court, they contended that the order was invalid and that s. 21(4) of the bombay sales tax act, 1953, was ultra vires and unconstitutional although they did not know the precise ground upon which this court subsequently struck down s. 12a(4) of the 1946-act. therefore, when they made the payments in 1959 and 1960 they were made under coercion and not under a mistake of law in thinking that the money was due. hence the petitioners could not claim any relief on the ground of mistake. they could rely on the ground of coercion but a suit for the recovery of money on the ground of coercion instituted in february 1968, would have been barred by limitation. a suit for recovery of money on the ground of coercion instituted after january 1, 1964 would be governed by art. 24 of the limitation act, 1963, and the period of limitation would be 3 years from the dates in 1959 and 1960 when the amounts were paid. the petitioners could not obtain an extension of the period under s. 30(a) of the limitation act, 1963, as art. 62 of the limitation act, 1908, which governs a suit for recovery of tax or other levy illegally collected, prescribed the same period of limitation. [840 f--h; 841 a---c] shiva prasad singh v. srish chandra nandi, (1949) l.r. 76 i.a. 244, 254, sales tax officer v. mukundlal saraf [1959] s.c.r. 1350, 1361, 1362, a. venkata subba rao v. state of andhra pradesh[1965] 2 s.c.r. 577, 612--620, state of madhya pradesh v. bhailal bhai & ors. [1964] 6 s.c.r. 261 274, daryao v. state of u.p. [1962] 1 s.c.r. 574, sobhraj odharmal v. state of ralasthan, [1963] supp. 1 s.c.r. 99, 111 and her highness ruckmaboye v. lulloobhoy mottickchund, (185152) 5 m.i.a. 234, 251, referred to.- per mitter, j.: the limitation act does not in terms apply to proceedings against the state under art. 32 in respect of violation of fundamental rights. a person complaining of such infraction has. one of three courses open to him. he can file a suit, invoke art. 226 or art. 32suits are governed by the limitation act. in the matter of the issue of a writ under art. 226 also, courts have refused to give relief in cases of long or unreasonable delay, although the limitation act does not apply, and the maximum period fixed by the legislature for filing a suit is ordinarily taken to be a reasonable standard by which delay in seeking the remedy under art. 226 can be measured. there is no reason for applying a different test when a party comes to this court under art. 32. there is public policy behind all statutes of limitation and a claim based on the infraction of fundamental rights ought not to be entertained if made beyond the period fixed by the limitation act for the enforcement of the right by way of suit, that is, although the limitation act does not apply, the period fixed by it should be taken to be a true measure of the time within which a person can be allowed to raise a plea successfully under art. 32. [853 c--h; 854 a--b] the petitioners in this case had not made a mistake in thinking that the money paid was due when in fact it was not due. they not only opposed the claim of the sales tax authorities but filed a writ petition contending that there was a violation of art. 19(1)(f). they did not accept the decision of the single judge but filed an appeal raising the same contention. they complained about the violation of their fundamental rights, the illegality of the order of forfeiture and the unreason-able restriction on their fundamental rights under art. 19(1)(f). they protested against the order of forfeiture not only out of court but in court and only paid the amounts after the issue of legal process. they were never influenced by a mistake of law and never 'failed to 'appreciate the correct position in law. but the payments were made under coercion. the period of limitation for a suit against government to recover money paid under protest is governed either by art. 16 or art. 62 of the limitation act, 1908 that is one year or three years. but taking the most favourable view that the period of six years fixed by art. 120 of limitation act, 1908, would apply, that period would have expired in 1966. the position is not different even if the limitation act, 1963 is applied. a claim for money paid under coercion would be covered by art. 113 of the limitation act, 1963, giving a period of 3 years from january 1, 1964 the date of commencement of the 1963-act. under s. 30(a) of the limitation act, 1963, the period of limitation for a suit which was formerly covered by art. 120 of the act of 1908; would be covered by art. 113 of the 1963-act. therefore, the suit in the present case would have to be filed by january 1, 1967. as the petitioners came to this court in february 1968 long after the date when they could have properly filed a suit, the application under art. 32 must be rejected. [851 h; 852 a---d, g-h; 853 a--b; 854- b--h;, 855 a-b] kantilal babulal & bros. v.h.c. patel 2.1 s.t,c. 174, sri sri shiba prasad singh, deceased, now represented by kali prasad singha v. maharaja srish chandra nandi 76 i.a. 244, sales tax officer v. kanhaiya lal mukundlal saraf, [1959] s.c.r. 1350 at 1363, sales tax officer, pilibhit v. budh prakash jai prakash, [1955] 1 s.c.r. 243, state o/ madhya pradesh v. bhailal bhai [1964] 6 s.c.r. 261, state of kerala v. aluminum industries ltd. 16 s.t.c. 689, and a. v. subbarao v. the state of andhra pradesh [1965] 2 s.c.r. 577, referred to. per sikri and hegde, jj. (dissenting): the petition has to be allowed and the petitioners must be granted the relief prayed for. per sikri, j.: article 32(2) of the constitution confers a judicial power on this court, and like all judicial powers, unless there is an express provision to the contrary, it must be exercised in accordance with fundamental principles of administration of justice, and one such fundamental principle is that stale claims should not be given effect to. [833 f--g] the limitation act does not directly apply to a petition under art. 32 and to invoke the analogy of the limitation act is not appropriate when dealing with petitions under art. 32. if a claim is barred under the limitation act, prima facie it is a stale claim but even if it is not so barred, it may not' be entertained by this court if on the facts of the case there is unreasonable delay. to issue a writ, direction or order in the nature of mandamus certiorari or prohibition after a delay of 12 years or 6 years would, except when there are exceptional circumstances, be strange. it is difficult to lay down a precise period, but a period of one year may be taken as the period beyond which the claim would be a stale claim unless the delay is explained. the time spent in making representations to higher authorities may be taken as a good explanation for any delay. such a practice would not destroy the guarantee under art. 32, because, the article nowhere lays down that a petition, however late, should be entertained. [833 g; 835 c-h] in the present case, the petitioners were mistaken in thinking that the money was liable to be paid under a valid law and hence under s. 72 of the contract act, the petitioners would be entitled to the relief claimed. the grounds urged before the high court show that it never struck the petitioners that the provision could be challenged on the ground ulti-mately accepted by this court. if the petitioners had not moved the high court but had paid on demand they would have been entitled to maintain the petition in this court. the position could not be worse became they exercised their right under art. 226. when a petitioner approaches a high court and fails, it could not be said that payments made by him thereafter were not under a mistake of law, even if the point on which this court ultimately strikes down the provision under which the payments were made was never raised in the high court. the petitioners discovered, like all assessees their mistake when this court struck down s. 12a(4) of the 1946-act and they came to this court within 6 months of that date and hence there was no delay. [837 g--h; 839 b---e] daryao v. state of u.p. [1962] 1 s.c.r. 574, amalgamated coalfields ltd. v. janapada sabha, chindwara, a.i.r. 1964 s.c. 1013, 1018, sales tax officer v. kanhaiyalal, [1959] s.c.r. 1350 andkantilal babulal v. h.c. patel, sales tax officer, 21 s.t.c. 174, referred to. per hegde, j.: in view of the decision of this court in kantilal babulal v.h.c. patel, 21 s.t.c. 174 which struck down s. 12a(4) or the 1946-act, the impugned collection under s. 21(4) of the 1953-act was without the authority of law and consequently the exaction infringed the fundamental right of the petitioners under art. 19(1)(f). hence the petitioners have a fundamental right to approach this' court under art. 32 for relief and this court has a duty to afford them the appropriate relief. since the right given to the petitioners under art. 32 is itself a fundamental right and does not depend on the discretionary powers of this court, as in 1be case of art. 226, it is inappropriate to equate the duty imposed on this court to the powers of chancery court in england or the equitable jurisdiction of courts in the united states. the fact that the petitioners have no equity in their favour is an irrelevant circumstance in deciding the nature of the right available to an aggrieved party under art. 32. this court is charged by the constitution with the special responsibility of protecting and enforcing the fundamental rights, and hence leaches on the part of an aggrieved party cannot deprive him of his right to get relief under art. 32. in fact, law reports do not show a single instance of this court refusing to grant relief on the ground of delay. if this court could refuse relief on the ground of delay, the power of the court under art. 32 would be a discretionary power and the right would cease to be a fundamental right. the provisions contained in the limitation act do not apply to proceedings under arts. 226 and 32 and if these provisions of the limitation act are brought in indirectly to control the remedies conferred by the constitution, it would be a case of parliament indirectly abridging the fundamental rights which this court, in golaknath's case, [1967] 2 s.c.r. 762, held that parliament cannot do. the 'fear. that forgotten claims and discarded rights against government may be sought to be enforced after the lapse of a number of years if fundamental rights are held to be enforceable without any time limit, is an exaggerated one, for, after all, a petitioner can only enforce an existing right. [856 d. f--h; 857 a, b, d, g-h; 858 a, d--e, f--h; 859 h] in this case the petitioners have an existing right even if their remedy under the ordinary law is barred. this court struck down s. 12a(4) of the 1946-act on a ground not put forward by the petitioners in the high court but on a wholly different ground. a mere impression of a party that a provision of law may be ultra vires cannot be equated to knowledge that the provision is invalid. and the fact, that, after a futile attempt to get the provision in question declared invalid the petitioners gave up their fight and submitted to the law which was apparently valid is no proof of the fact that they knew that the provision in question was invalid. there is no reason for rejecting the plea of the petitioners that they became aware of the invalidity of the provision only after the decision of this court in kantilal's case, and since the petition was filed very soon thereafter, the petitioners were entitled to relief. [860 c--g] state of m.p.v. bhailal bhai, [1964] 6 s.c.r. 261, referred to. (2) (by full court): the petition is not barred by res judicata. per hidayatullah, c.j. where the order of the high court under art. 22% is not a speaking order or the matter has been disposed of on some ground other than on merits, at the threshold, this courtmay entertain the application under art. 32. [831 b] daryao v. state of u.p. [1962] 1 s.c.r. 574, explained. per sikri, bachawat and mitter, jj.: when a petition under art. 226 is dismissed not on the merits but because of the laches on the party applying for ,the writ or because an alternative remedy was available to him, such dismissal is not a bar to a subsequent petition under art. 32, except in cases when the facts found by the high court might them selves be relevant under art. 32. [833 e--f; 839 f--g; 855 c--d,f-g] daryao's case, [1962] 1 s.c.r. 574 and joseph v. state of kerala, a.i.r. 1965 s.c. 1514, referred to. per hegde. j.: it is only when the right claimed by the petitioner in his petition under art. 32 had been claimed in the high court under art. 226 and negatived by the high court and that decision had become final as it was not appealed against, that the petitioner would not be able to agitate the right over again in this court under art. 32. [856 b--c] daryao's case, [1962] 1 s.c.r. 574, explained. - regarding the offence under section 147(b) of the maharashtra co-operative societies act, 1960, the trial court held that the offence was clearly barred under section 468 cr. the averments in the affidavit as well as in the above certificates establish that the respondent no.orderk. jayachandra reddy, j.1. all these appeals and the connected slps arise out of a common judgment of the high court of judicature at bombay. they can he disposed of hy a common judgment here.2 the complainant sampat shripat lambate, the secretary of the digvijay mills employees co-operative credit society limited filed a private complaint in the court of the metropolitan magistrate, 6th court, mazagaon, bombay alleging that the eight accused shown in that complaint misappropriated amounts belonging to the society and thus committed an offence punishable under section 147(b) of the maharashtra cooperative societies act, 1960 and section 409 read with section 114 of the indian penal code. it was alleged in the complaint that the members of the complainant society are the employees of the digvijay mill ltd accused no. 1was the chairman and accused nos. 2 to 7 were the directors of the mills and accused no. 8 was the secretary of the board of directors. the society used to advance loans to its members and under an agreement with the management of the mill, the mill used to recover loans advanced to the members from the salaries payable to such members and the amount so collected was to be paid by the management to the society. according to the complainant in the month of june, 1964, the management collected certain amounts by deducting instalments from the salaries and out of that some amounts were paid as loan to the society and the balance was misappropriated by the accused. the similar allegations are made in respect of the collections made upto the year 1968. in respect of these collections, 12 cases were tiled before the trial court. the complaints themselves were filed in the year 1976 i.e. after eight years. the trial court examined the complainant as p.w. 1 who stated that accused no. 1alone was looking after day-to-day affairs of the mill and the society has demanded the amounts from accused no. 1alone. on the basis of this evidence, the trial court held that accused no. 1alone could be charged only under section 406 i.p.c. and in that view other accused were discharged. regarding the offence under section 147(b) of the maharashtra co-operative societies act, 1960, the trial court held that the offence was clearly barred under section 468 cr. p.c. when the charge under section 406 i.p.c. was read over and explained to the accused, he pleaded not guilty. he, however, stated that there was an oral agreement between the society and the management and the management used to retain part of the salaries payable to the employees but the same was not misappropriated by the management as alleged. he further suited that the mill was running at a loss and due to financial difficulties the amount could not be paid to the society. he also stated that these amounts were not used by him or any other director for their personal use. therefore he cannot be held guilty for any offence. the trial court examined the evidence of p.w. 1 in detail in cross-examination, it emerged that the full salaries were not paid to the members and only part of the salaries were paid after deducting the instalments payable to the society. p.w. 1 also admitted that as the society could not get the amounts either from the collector or from the government, it filed the complaints against the directors and he further admitted that the society filed the complaints only to recover the amounts and not because the directors misappropriated the said amounts. taking these admissions into considerations, the trial court held that the amounts could not he paid to the society because of the financial difficulties of the mill and the only remedy open to the society is to approach the government and if the government fails to pay the amounts then the society can seek the remedy in the civil court. the learned magistrate also held that as the complaints arc filed after eight years, therefore they arc barred by the limitation fixed under section 468 cr. p.c. in that view of the matter, he acquitted the first accused namely the managing director. the society filed appeals against the order of acquittal before the high court and accused no. 1 appeared as the sole respondent with the state in each of the appeals. the learned single judge of the high court delivered the judgment in criminal appeal no. 398/90 on his file. the learned judge mainly relied on the statement made by accused no.l, the managing director and pointed out that the agreement between the society and the mill was admitted and that evidence of complainant coupled with the statement would go to show that the funds deducted on behalf of the society were retained by the accused and it was a continuing offence and therefore the limitation described under section 468 cr. p.c. does not apply. according the learned judge allowed all the 12 appeals filed by the complainant and in each case, he convicted the respondent-accused no, 1 therein namely the managing director under section 409 i.p.c. and sentenced him to imprisonment in each case ranging from two years to six months and also directed to pay a fine which roughly represents the amounts due to the society.3. it appears that the learned advocate mr. shalim samuel appearing for the respondent-accused no. 1died and that nobody represented him before the high court. therefore an application in each of the appeals was filed to set aside the judgment under section 482 cr. p.c. the learned single judge dismissed the applications holding that section 362 cr. p.c is a bar for recalling the judgment in a criminal case. as against the said impugned order refusing to recall the judgment in each of the appeals, s.l.p.(criminal) nos. 4258-59 & 4349-4358/91 are filed in this court. questioning the convictions and sentences awarded by the high court, accused no. 1has filed criminal appeal nos. 48-58/92 and 589/93.4. it may not be necessary to go into the question raised in s.l.p.(criminal) nos. 4258-59 & 4349-58/91 inasmuch as we proceeded to hear the counsel in the appeals themselves challenging the convictions. therefore in s.l.p.(criminal) nos. 4258-59 & 4349-58/91 no orders are necessary and accordingly they are disposed of.5. learned counsel appearing for the appellant submits that as held by the trial court the dispute is only of civil nature and there is no misappropriation as such by anybody and that due to financial difficulties the mill could not pay the amounts due to the society in time. therefore in such a situation the view taken by the trial court is quite reasonable and that the high court erred in reversing the order of acquittal in each of those cases. it is further submitted that the appellant (accused no. 1, the managing director) was only managing the affairs of the mill and that there is nothing to show that he has personally misappropriated any of the amounts and that the explanation has been given by him namely that the mill was sick and in financial difficulties and therefore the amounts could not he paid in time.6. it may also be mentioned at this stage that before the trial court, the charge was only under sections 406 i.p.c. and the appellant was acquitted of the same. but the learned single judge of the high court while disposing of the appeals preferred by the complainant recorded the conviction under section 409 i.p.c. without any notice and sentenced him in each case for the said major offence. this court by its order dated 16.1.92 directed the officer to issue a notice in each of the cases to the appellant as to why sentence of imprisonment should not be imposed in conformity with the penal provision of section 409 i.p.c. since it was noticed that the learned single judge committed an illegality in imposing sentence under section 409 i.p.c. while the appellant was tried only for an offence under section 406 i.p.c. the appellant undertook to deposit the entire fine amount in this court amounting to rs. 5,50,0007-find the registrar was directed to receive the total amount of fine by way of a draft and deposit the same to the credit of the above said appeals before this court.7. learned counsel appearing for the respondent-society also submits that as deposed by the complainant before the trial court, the society is interested only in realising the amounts.8. the fact remains that the appellant was not duly represented before the high court. that apart, though the charge was under section 406 i.p.c. only, the high court recorded the conviction under section 409 an aggravated offence. under these circumstances, the only option left is to again remand the matter to the high court. the offence itself is said to have taken place from 1964 to 1968. the mill also appears to have been taken over as a sick unit. further on behalf of the appellant it is submitted that the amount deposited by him in this court will not be claimed by him and the same may be given to the society by passing an appropriate order for disbursement of the said amount. mr. mukul mudgal, learned counsel appearing for the respondent-society also submits that the society is interested in realising the amount that was due from the mill arid if the same is realised that would meet the ends of justice.9. we think that after 24 years it is not a fit case to be remanded. further the view taken by the trial court that it is of civil nature, is not an unreasonable one as to warrant interference in an appeal against acquittal. for all these reasons, we set aside the impugned orders of the high court in each of these appeals and we restore the orders of the trial court acquitting the appellant-accused.10. now coming to the disbursement of the amount of rs. 5,50,0007-, an additional affidavit has been filed by the secretary of the digvijay mills employees cooperative credit society limited-respondent no. 1 herein, suiting that the society is very much in existence and is functioning. alongwith the affidavit, the certificate of registration and also the certificate issued by digvijay textile mills dated 23.7.93, another certificate issued by the assistant registrar of cooperative societies, bombay and yet another certificate dated 22.7.93 issued by the maharashtra state cooperative bank limited, lalbaug branch, bombay are filed. the averments in the affidavit as well as in the above certificates establish that the respondent no. 1- society is functioning regularly. since the amount belonging to the society is alleged to have been misappropriated, the amount of rs. 5,50,0007- deposited in this court as directed, shall be paid to the respondent no. 1-society.11. accordingly criminal appeal nos. 48-58/92 & 589/93 are allowed subject to the above direction. consequently no orders are necessary in s.l.p(criminal) nos. 4258-59 & 4349-58/91 and they are accordingly disposed of. .

Judgment:
ORDER

K. Jayachandra Reddy, J.

1. All these appeals and the connected SLPs arise out of a common judgment of the High Court of Judicature at Bombay. They can he disposed of hy a common judgment here.

2 The complainant Sampat Shripat Lambate, the Secretary of the Digvijay Mills Employees Co-operative Credit Society Limited filed a private complaint in the Court of the Metropolitan Magistrate, 6th Court, Mazagaon, Bombay alleging that the eight accused shown in that complaint misappropriated amounts belonging to the Society and thus committed an offence punishable under Section 147(b) of the Maharashtra Cooperative Societies Act, 1960 and Section 409 read with Section 114 of the Indian Penal Code. It was alleged in the complaint that the members of the complainant Society are the employees of the Digvijay Mill Ltd Accused No. 1was the Chairman and Accused Nos. 2 to 7 were the Directors of the Mills and Accused No. 8 was the Secretary of the Board of DirectOrs. The Society used to advance loans to its members and under an agreement with the Management of the Mill, the Mill used to recover loans advanced to the members from the salaries payable to such members and the amount so collected was to be paid by the Management to the Society. According to the complainant in the month of June, 1964, the Management collected certain amounts by deducting instalments from the salaries and out of that some amounts were paid as loan to the Society and the balance was misappropriated by the accused. The similar allegations are made in respect of the collections made upto the year 1968. In respect of these collections, 12 cases were tiled before the trial court. The complaints themselves were filed in the year 1976 i.e. after eight years. The trial court examined the complainant as P.W. 1 who stated that Accused No. 1alone was looking after day-to-day affairs of the Mill and the Society has demanded the amounts from Accused No. 1alone. On the basis of this evidence, the trial court held that Accused No. 1alone could be charged only under Section 406 I.P.C. and in that view other accused were discharged. Regarding the offence under Section 147(b) of the Maharashtra Co-operative Societies Act, 1960, the trial court held that the offence was clearly barred under Section 468 Cr. P.C. When the charge under Section 406 I.P.C. was read over and explained to the accused, he pleaded not guilty. He, however, stated that there was an oral agreement between the Society and the Management and the Management used to retain part of the salaries payable to the employees but the same was not misappropriated by the Management as alleged. He further suited that the Mill was running at a loss and due to financial difficulties the amount could not be paid to the Society. He also stated that these amounts were not used by him or any other Director for their personal use. Therefore he cannot be held guilty for any offence. The trial court examined the evidence of P.W. 1 in detail In cross-examination, it emerged that the full salaries were not paid to the members and only part of the salaries were paid after deducting the instalments payable to the Society. P.W. 1 also admitted that as the Society could not get the amounts either from the Collector or from the Government, it filed the complaints against the Directors and he further admitted that the Society filed the complaints only to recover the amounts and not because the Directors misappropriated the said amounts. Taking these admissions into considerations, the trial court held that the amounts could not he paid to the Society because of the financial difficulties of the Mill and the only remedy open to the Society is to approach the Government and if the Government fails to pay the amounts then the Society can seek the remedy in the civil court. The learned Magistrate also held that as the complaints arc filed after eight years, therefore they arc barred by the limitation fixed under Section 468 Cr. P.C. In that view of the matter, he acquitted the first accused namely the Managing Director. The Society filed appeals against the order of acquittal before the High Court and Accused No. 1 appeared as the sole respondent with the State in each of the appeals. The learned Single Judge of the High Court delivered the judgment in Criminal Appeal No. 398/90 on his file. The learned Judge mainly relied on the statement made by Accused No.l, the Managing Director and pointed out that the agreement between the Society and the Mill was admitted and that evidence of complainant coupled with the statement would go to show that the funds deducted on behalf of the Society were retained by the accused and it was a continuing offence and therefore the limitation described under Section 468 Cr. P.C. does not apply. According the learned Judge allowed all the 12 appeals filed by the complainant and in each case, he convicted the respondent-Accused No, 1 therein namely the Managing Director under Section 409 I.P.C. and sentenced him to imprisonment in each case ranging from two years to six months and also directed to pay a fine which roughly represents the amounts due to the Society.

3. It appears that the learned advocate Mr. Shalim Samuel appearing for the respondent-Accused No. 1died and that nobody represented him before the High Court. Therefore an application in each of the appeals was filed to set aside the judgment under Section 482 Cr. P.C. The learned Single Judge dismissed the applications holding that Section 362 Cr. P.C is a bar for recalling the judgment in a criminal case. As against the said impugned order refusing to recall the judgment in each of the appeals, S.L.P.(Criminal) Nos. 4258-59 & 4349-4358/91 are filed in this Court. Questioning the convictions and sentences awarded by the High Court, Accused No. 1has filed Criminal Appeal Nos. 48-58/92 and 589/93.

4. It may not be necessary to go into the question raised in S.L.P.(Criminal) Nos. 4258-59 & 4349-58/91 inasmuch as we proceeded to hear the counsel in the appeals themselves challenging the convictions. Therefore in S.L.P.(Criminal) Nos. 4258-59 & 4349-58/91 no orders are necessary and accordingly they are disposed of.

5. Learned counsel appearing for the appellant submits that as held by the trial court the dispute is only of civil nature and there is no misappropriation as such by anybody and that due to financial difficulties the Mill could not pay the amounts due to the Society in time. Therefore in such a situation the view taken by the trial court is quite reasonable and that the High Court erred in reversing the order of acquittal in each of those cases. It is further submitted that the appellant (Accused No. 1, the Managing Director) was only managing the affairs of the Mill and that there is nothing to show that he has personally misappropriated any of the amounts and that the explanation has been given by him namely that the Mill was sick and in financial difficulties and therefore the amounts could not he paid in time.

6. It may also be mentioned at this stage that before the trial court, the charge was only under Sections 406 I.P.C. and the appellant was acquitted of the same. But the learned Single Judge of the High Court while disposing of the appeals preferred by the complainant recorded the conviction under Section 409 I.P.C. without any notice and sentenced him in each case for the said major offence. This Court by its order dated 16.1.92 directed the Officer to issue a notice in each of the cases to the appellant as to why sentence of imprisonment should not be imposed in conformity with the penal provision of Section 409 I.P.C. since it was noticed that the learned Single Judge committed an illegality in imposing sentence under Section 409 I.P.C. while the appellant was tried only for an offence under Section 406 I.P.C. The appellant undertook to deposit the entire fine amount in this Court amounting to Rs. 5,50,0007-find the Registrar was directed to receive the total amount of fine by way of a draft and deposit the same to the credit of the above said appeals before this Court.

7. Learned counsel appearing for the respondent-Society also submits that as deposed by the complainant before the trial court, the Society is interested only in realising the amounts.

8. The fact remains that the appellant was not duly represented before the High Court. That apart, though the charge was under Section 406 I.P.C. only, the High Court recorded the conviction under Section 409 an aggravated offence. Under these circumstances, the only option left is to again remand the matter to the High Court. The offence itself is said to have taken place from 1964 to 1968. The Mill also appears to have been taken over as a sick unit. Further on behalf of the appellant it is submitted that the amount deposited by him in this Court will not be claimed by him and the same may be given to the Society by passing an appropriate order for disbursement of the said amount. Mr. Mukul Mudgal, learned counsel appearing for the respondent-Society also submits that the Society is interested in realising the amount that was due from the Mill arid if the same is realised that would meet the ends of justice.

9. We think that after 24 years it is not a fit case to be remanded. Further the view taken by the trial court that it is of civil nature, is not an unreasonable one as to warrant interference in an appeal against acquittal. For all these reasons, we set aside the impugned orders of the High Court in each of these appeals and we restore the orders of the trial court acquitting the appellant-accused.

10. Now coming to the disbursement of the amount of Rs. 5,50,0007-, an additional affidavit has been filed by the Secretary of the Digvijay Mills Employees Cooperative Credit Society Limited-respondent No. 1 herein, suiting that the Society is very much in existence and is functioning. Alongwith the affidavit, the certificate of registration and also the certificate issued by Digvijay Textile Mills dated 23.7.93, another certificate issued by the Assistant Registrar of Cooperative Societies, Bombay and yet another certificate dated 22.7.93 issued by the Maharashtra State Cooperative Bank Limited, Lalbaug Branch, Bombay are filed. The averments in the affidavit as well as in the above certificates establish that the respondent No. 1- Society is functioning regularly. Since the amount belonging to the Society is alleged to have been misappropriated, the amount of Rs. 5,50,0007- deposited in this Court as directed, shall be paid to the respondent No. 1-Society.

11. Accordingly Criminal Appeal Nos. 48-58/92 & 589/93 are allowed subject to the above direction. Consequently no orders are necessary in S.L.P(Criminal) Nos. 4258-59 & 4349-58/91 and they are accordingly disposed of. .