KANTILAL CHANDULAL MEHTA versus STATE OF MAHARASHTRA AND ANR.

Citation: [1970] 2 S.C.R. 742 · Decided: 10-10-1969 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

742 
KANTILAL CHANDULAL MEHTA 
v. 
STATE OF MAHARASHTRA AND ANR. 
October I 0, 1969 
[S. M. "S1KRI AND P. JAGANMOHAN REDDY, JI.1 
. Crinzinal trial-Charge, an1endme11t of-High Court allowing plea for 
alternate charge and ren1anding case keeping appeal pending-Code of 
Criminal Procedure 1898, ss. 423, 535. 
. 
The . second respondent Bank filed a complaint against the appellant 
alleging against him misappropriation of moneys and goods contrary to 
the Packing Credit Agreement entered into between the appellant's firm 
and the Bank. The Magistrate framed only one charge agamst the appel-
lant, viz., lfor misa~propriation of moneys, under s. 406, 
Penal Code. 
Against his conviction the appellant appealed to the High Court, and 
when the case had be.en ~rgued for a consjderable length the learned Judge 
allowed an oral apphca!Ion for amendment of the charge to include one 
of misappropriation of goods. 
Allowing the application the learned Judge 
directed that the case be sent back "for a new trial on the amended char!!I' 
so as to enable the appellant to have full opportunity to meet the case till 
which time the appeal is kept pending." 
In appeal to this Court 
against this order. 
· 
HELD : Dismissing the appeal, 
The Code of Criminal Procedure gives ample power to the courts to 
alter or amend a charge whether by the trial cou·rt or by the appellate 
Court provided that the accused has not to face a charge for a new offence 
or is not prejudiced either by keeping him in the dark about that charge or 
in not giving a full opportunity of meeting it and putting forward any 
defence open to him, on the charge finally preferred against him. &pecial-
ly, cl. (d) of sub-s. (1) of s. 423 empowers the appellate cou•: even to 
make any amendment or any consequential or incidental order that may 
be just or proper. 
Further, s. 535 provides that no finding or sentence 
pronounced or passed shall be deemed to be invalid merely on the ground 
that no charge has been framed unless the court of appeal or revision 
thinks that the omission to do so has occasioned failure of justice and if 
in the opinion of any of these courts a failure of justice has been occa-
sioned by an omission to frame a charge, 
it shall order a charge ~o be 
framed and direct that the trial be recommended from the point imme-
diately after the 1raming of the charge. 
[748 A-El 
Thakar Sahab v. Emperor, [1943] P.C. 192, referred to. 
In the present case the learned Judge of the High Court did not intend 
no·r did he direct a new trial; only an qpportunity was given to the accused 
to safeguard himself against any prejudice by giving him a opportunity to 
recall any witness and adduce any evidence on this behalf. 
[749 CJ 
The offence with which the appellant was charged alternatively was 
the same, namely, under s. 406; but as the entire transaction was one and 
indivisib)e he was not only required to answer the charge of misappro-
priation df money but in the alternative misappropriation of goods which 
the complainant Bank contended became their's as soon as the accused 
purchased them with the moneys it advanced. Therefore no prejudiee was 
A 
B 
c 
D 
E 
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G 
.H 
A 
B 
c 
D 
E 
K. C. MEHTA v. MAHARASHTRA (Reddy, J.) 
743 
caused, nor was likely to be caused to the accused by the amendment 01 
the charge as directed by the High Court. 
[749 E-F] 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
260 of 1968. 
Appeal by special leave from the judgment and order dated 
October 18, 1968 of the Bombay High Court in Criminal Appeal 
No. 1161 of 1966. 
A. S. R. Chari, S. S. Khanduja and Maya Rao, for the appel-
lant. 
M. C. Bhandare and S. P. Nayar, for respondent No. 1. 
V. M. Tarkunde, Janendra Lal and B. R. Agarwala, for res-
dent No. 2. 
The Judgment of the Court was delivered by 
P. Jaganmohan Reddy, J. 
This appeal is by special leave 
against the order of the High Court of Bombay dated the 18th 
October 1968 allowing the oral application of the learned advocate 
for the respondent for the amendment of the charge of terms of the 
draft submitted by him and directing the Chief Presidency Magis-
trate to assign the case to some court for holding a new trial in 
respect of the amended charge. This order was made in the 
following circumstances : 
The appellant was one of the partners of a firm Chandulal 
Kanji & Co. along with his brother Chandulal K. Mehta. 
By 
ana under an agreement called the Packing Credit 
Agreen:lent entered into between th

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