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TMI Blog1957 (10) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... proprietor of the I Lotus Cross Words'. Certain persons who had paid moneys in connection with the prize-competition No. 92, complained that they had not received their prize money though it had been announced that they had competed for the prizes' offered. The police, after investigation, submitted a charge-sheet against the accused to the effect that he had, between May 20, 1955, and June 10, 1955, in his capacity as the proprietor of the 'Lotus Cross Words', dishonestly induced P.Ws. 1 to 3 to compete in his bumper competition No. 92, by paying entry fees to the tune of ₹ 2,640 on the representation that the prize winners will get a sum of ₹ 3,10,000, and that on that representation, he had collected one lac and fifteen thousand odd rupees from the public, out of which he had spent about nineteen thousand rupees towards expenses of advertising and holding the competition. Though P.Ws. 1 to 3 and others had been declared as the first prize winners, the accused had not distributed even the amount actually collected minus the expenses aforesaid, that is to say ₹ 96,000 odd, the amount of the net collections. Tile prosecution examined a number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled the claims of six thousand out of seven thousand prize winners. He, thus, claimed that less than one thousand persons' claims had remained unsatisfied in spite of his borrowing money lo carry out his obligations. The learned magistrate, on an elaborate examination of the evidence led before him by the parties, observed in his judgment that the accused had not denied the truth of the allegations of fact made by the prosecution, but had only challenged the insinuations against him that he was actuated by a dishonest intention in carrying on the competitions, particularly, No. 92. He found that none of the statements made in the advertisements had been shown to be untrue; that it was a fact that it the time, the competition No. 92 had been announced in the papers, the accused owed a total debt of prize moneys amounting to about four lacs of rupees in respect of the previous competitions; that the accused had other debts to the tune of a lac and fifty seven thousand odd rupees and that recent competitions had not even yielded sufficient amounts, collected by way of entry fees, to cover the guaranteed prize moneys. But he also found that the accused had applied his own fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he imposed the maximum punishment of two years' rigorous imprisonment. Substantially two points were raised on behalf of the appellant in support of the appeal, namely, (1) that the High Court is not authorized by s. 423(1)(a), Criminal Procedure Code, to convert an order of acquittal into an order of conviction in respect of an offence other than that for which the accused was tried by the trial court and acquitted by it, that is to say, the High Court could not confirm the order of the trial court acquitting the accused of an offence under s. 420, Indian Penal Code, and, at the same time, convict him of an offence under s. 403, Indian Penal Code, and (2) that on the facts and circumstances of this case, no offence under s. 403, Indian Penal Code, has been made out. Before dealing with the appeal on the merits covered by the second contention, it is convenient to dispose of the first point. The powers of the High Court, while disposing of an appeal against an order of acquittal, are contained in s. 423 (1)(a), Criminal Procedure Code, which is in these terms: 423(1)(a) : in an appeal from an order of acquittal, reverse such order and direct that further inquiry be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to the appellant, those additional words should be of such offence as has been charged and of which he had been acquitted , and according to the other view, of the offence disclosed If, in construing the section, the court has to supply some words in order to make the meaning of the statute clear, it will naturally prefer the latter construction which is more in consonance with reason and justice. It was also argued on behalf of the appellant that this being a penal statute, the words of the statute should be very strictly construed, but even so, the necessity for supplying certain additional words is there in either view of the matter. It has not been contended that the trial court could not have exercised the powers contained in ss. 236, 237 and 238 of the Criminal Procedure Code. What was contended was that though those powers may be exercised by a trial court or even by a Court of Appeal exercising its powers under cl. (b) of s. 423(1), the High Court could not exercise those powers acting under cl. (a) of that section. But we do not see any sufficient ground for so restricting the powers of the High Court hearing an appeal under s. 423(1)(a). No rulings have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prize winners in the competition No. 92 and that he utilized the same towards the debt incurred in the previous competitions, one would have thought that misappropriation is clearly established. In our opinion, these observations are very much wide of the mark. The High Court has not reversed any of the findings of fact recorded by the learned magistrate. It has differed only on the inference to be derived from those findings. The learned trial magistrate refused to draw an inference of dishonesty from those facts. The High Court has come to the contrary conclusion. The question is: was the High Court justified in coming to the conclusion that misappropriation is clearly established? In our opinion, the High Court has erred in coming to that conclusion. In order to prove an offence under s. 403, Indian Penal Code, the prosecution has to prove that the property, in this case, the net amount of ninety six thousand odd rupees, was the property of the prosecution witnesses 1 to 3 and others, and (2) that the accused misappropriated that 95 sum or converted it to his own use, and (3) that he did so dishonestly. In our opinion, none of these constituent elements of the offence ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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