SUSHIL KUMAR GUPTA versus JOY SHANKAR BHATTACHARYYA

Citation: [1970] 3 S.C.R. 770 · Decided: 23-02-1970 · Supreme Court of India · Bench: A.N. RAY · Disposal: Dismissed

Judgment (excerpt)

770 
SUSHIL KUMAR GUPTA 
v. 
JOY SHANKAR BHATIACHARYYA 
February 23, 1970 
A 
[A. N. RAY AND I. D. DUA, JJ.] 
B 
Criminal Trial-Secretary of 
co.operative 
society 
charged 
under 
ss. 408 and 411 AJ.P.C.-Joint trial with 
abettors-Acquittal of abet-
tors-Effect on coriviction of the principal accused. 
Criminal breach of trust-User by 
accused of 
money 
entrusW!d, 
contrary to rules-Ratification by Directors-No power to ratify-Effect of 
Misjoinder of chargts-No prejudice to accused. 
Constitution of India, 1950, Art 
134(1) (c)-Certificate by High 
Court-Judicial discretion to be exercised by High Cour,, 
c 
The appellant, who was the Secretary of a Cooperative Society and 
was responsible for the cash and 
maintenance of the accounts of the 
D 
Society, was charged with the offences of criminal breach of trust and 
falsificatiol\ of accounts under ss. 408 and 477-A, I.P.C. He was tried 
along with 5 others who were charged with the offence of abetment of 
the offences. 
The, trial court acquitted all of !hem, but the appellate 
court (the Court of Judicial Commissioner) convicted the appellant and 
acquitted the others. The appellate Court held that the appellant had 
advanced money against the rules of the Society and also 10 various persoflb 
not entitled to it, that the .appellant had thereby committed criminal breach 
E 
of trust and either mi>.appropriated or misapplied the funds of the Society 
dishonestly to benefit himself or his relations and friends. The appellate 
Court certified that the case was a fit one for appeal to this Court under 
Art. 134(t)(c), but, the order granting the certific&te did not "disclose on 
its face what exactly was the difficulty of the appellate Court and what 
question of outstanding difficulty this Court was to settle. 
in appeal to this Court, 
F 
HELD: (I) The acquittal of the co-accused was not based on the 
finding that there was no 
falsification of 
accounts or 
embezzlement. 
Therefore, the appellant could n.ot contend that no offence was committed 
because of the acquittal of the co-accused. [773 G-DJ 
(2) On the finding of the appellate court, it was not a mere civil liabi-
lity of the appellant. The appellant's manner of dealing with the money 
entrusted to his custody constituted criminal breach of trust. 
The Direc-
tors had no authority under the bye-laws to give any directions contrary 
to the bye-la\VS and so, could not ratify the 
violation of the bye-laws. 
Any resolution ratifying the use of trust money contrary_ to the directions 
contained in the bye-Jaws would not validate, the breach of the bye-laws. 
[7750; 776 A-CJ 
- (3) There was no misjoinder of charges and no prejudice was caus-ed 
to the appellant. [776 F] 
( 4) . The appellate Court should not have granted the certiJicate, under 
Art. 134(\)(c) in the present case. The word 'certify' in "the 
Article 
G 
H 
A 
B 
c 
D 
E 
F 
G 
H 
s. K, GUPTA v. JOY SHANKAR (Dua, J.) 
771 
postulates the exercise of judicial discretion by the appellate Court and the· 
certificate shcuid ordinarily show on the face of it that the discretion was 
invokcM ano properly exercisCd. 
This Court should be in a position to 
koow that the appellate Court has not acted mechanically but bas appli« 
its n1ind. n certificate under this clause is impermissible on questions of 
fact. 
\Vhen the case does not disclose a substantial question of law or 
principle the certificate granted by the appellate Court is liable to be 
revoked by this Court, though such. pl'in1a facie non-disclosure would not 
by itse\t :mtomatically invalidate the ccr'ificate. [777 A-Cl 
CRIMINAL 
APPELLATE 
JURISDICTION : Criminal Appeal 
No. 131 of 1967. 
Appeal from the judgment and order dated January 9, 1967 
of the Judicial Commissioner's 
Court Tripura, 
Agartala in 
Criminal Appeal Case No. 8 of 1963. 
M. K. Ramamurthi, J. Ramamurthi and Vineet Kumar, 
for 
the appellant. 
H. R. Khanna and R. N. Sachthey, for the respondent. 
The Judgment of the Court was delivered by 
Dua, J. 
Pursuant to a complaint by Shri Joy Shanker Bhatta-
charyya, the appellant Sushi! Kumar Gupta was tried in the court 
of Assistant Sessions Judge, Tripura on the following charges : 
" ( 1) That you in between the month of September, 
1958 and July, 1959 at Agartala P. S. Kotwali being 
a servant viz. Secretary in the 
employment of 
the 
Tripura Central Marketing Co-operative Society Ltd., 
and in such capacity entrusted with certain property 
to wit a total sum of Rs. 18,

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