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TMI Blog1962 (8) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... and, and that reasons would be given later. 2. It appears that the appellant, who is a practising lawyer, had been employed by the respondent to work for him to investigate the title to some property which the lawyer was about to purchase, sometime in October 1952. The prosecution case was that the respondent has entrusted the sum of Rs. 5000/- to the appellant for depositing in Court in connection with an application in respect of the proposed transaction, under the Bengal Money Lenders' Act, and that the appellant having been so entrusted with the money, in breach of trust, misappropriated the amount, thus causing loss to his client. The appellant was, therefore, charged under s. 409 of the Indian Penal Code, with having committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an appeal to the High Court against the order of acquittal, which was heard by a Division Bench. The High Court took the view that, in the circumstances of the case, there should be retrial by another magistrate, who should give an opportunity to the complainant to adduce the evidence of a handwriting expert in order to establish the genuineness of the questioned document. Apparently, the High court, sitting in appeal on the judgment of the acquittal, passed by the learned Magistrate, was not satisfied as to the genuineness of the questioned document. Otherwise it could have pronounced its judgment one way or the other, on the merits of the controversy, whether or not the prosecution has succeeded in bringing the charge home to the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the court should be assisted by a qualified expert since almost the whole case depends upon proof of the fact whether the impugned portions of that document were in the hand of the respondent.................... Comment was also made by the Magistrate on the appellant's failure to call expert evidence. In one sense that comment was justified; but in a case of this kind between lawyer and client we think the matter cannot be left where it is. In view of the fiduciary relationship between the parties it is as much necessary in the interest of the prosecution as in the interest of the accused that the whole matter should be cleared up, and no steps should be spared which might ensure complete justice between the parties. If it were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd trial simply because the prosecution did not adduce all the evidence that should, and could, have been brought before the Court of first instance. It is not a case where it is open to the Court of Appeal, against an order of acquittal, to order a retrial for the reasons that the trial Court has not given the prosecution full opportunity to adduce all available evidence in support of the prosecution case. It has no where been suggested that the trial Magistrate had unreasonably refused any opportunity to the prosecution to adduce all the evidence that it was ready and willing to produce. That being so, the High Court, in our judgment, entirely misdirected itself in setting aside the order of acquittal and making an order for a fresh trial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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