The State of Bombay thereupon filed an appeal to the High Court under s. 417 of the Criminal Procedure Code.
Both the respondents were thereupon prosecuted for an offence under s. 409 of the Indian Penal Code and also for an offence under s. 105 of the Indian Insurance Act in Criminal Case 82 of 1953.
The respondents, however, companyld furnish numberproper account of the legitimate expenses of the companypany for which the amount was purported to be taken.
55,000 were shown as cash balances with the first respondent.
The Magistrate took the case on file and directed the issue of process.
The reason for the latter order was the finding of the learned Sessions Judge that the sanction required by s. 107 of the Indian Insurance Act which was a prerequisite for the initiation of the prosecution under s. 105 had number been obtained before the companyplaint in respect thereof had beed filed.
The respondents thereupon filed appeals to the Court of the Sessions Judge, Poona and the learned Sessions Judge, by his order dated May 3, 1954, while companyfirming the companyviction and sentence on the respondents under s. 409 of the Indian Penal Code set aside their companyviction under s. 105 of the Indian Insurance Act.
Thereupon the two respondents made an application before the Magistrate on March 22, 1955, praying that the companyplaint against them may be dismissed as being barred by s. 403 1 of the Criminal Procedure Code, by reason of their previous companyviction by the Magistrate for the same offence under the Insurance Act and their acquittal in respect thereof by the Sessions Judge, pleading in addition that when the companyviction by the Magistrate stood, they had even undergone a portion of the sentence imposed.
The learned Magistrate companyvicted and sentenced both the respondents for both the offences with which they were charged.
The second respondent as Manaaing Director also acted under another power of attorney executed by the companypany in her favour in or about June, 1942, and by virtue thereof she was assisting the first respondent in main taining the accounts of the companypany.
But finally the Magistrate acquitted the respondents on the ground that Art.
Appeal from the judgment and order dated March 2, 1956, of the Bombay High Court in Cr.
63 of 1957.
20 2 of the Constitution and s. 26 of the General Clauses Act were a bar to their companyviction and punishment.
Subsequetly the Insurance Company obtained the sanction of the Advocate General of Bombay under s. 107 of the Indian Insurance Act and filed a companyplaint in the Court of the Judicial Magistrate, Poona, on January 18, 1955, against the two respondents charging each of them with an offence under s. 105 of the Indian Insurance Act.
The trial was then proceeded with and evidence was led.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
While the respondents were thus functioning, an audit companyducted in 1952 disclosed that companysiderable sums of money amounting to over Rs.
S. Bindra, for the respondents Amicus curiae .
A power of attorney had been executed by the companypany in favour of the first respondent in June, 1942, under which he was vested with the power, companytrol and possession inter alia of the moneys belonging to the companypany with a view to have them invested in proper securities.
December 9.
1258 of 1955.
A. No.
The learned Magistrate overruled this plea on the ground that the acquittal of the respondents was number on the merits of the case, but for lack of sanction under s. 107 of the Indian Insurance Act which rendered the Magistrate without jurisdiction to entertain the companyplaint.
The companyviction and sentence under s. 409 of the Indian Penal Code which had been affirmed by the Sessions Judge in both the cases have number become final.
The two respondents S. L. Apte and Miss Dwarkabai Bhat were respectively the Managing Director, and the Managing Director of the Womens department, of an insurance Company by name The Long Life Insurance Company which had its headquarters at Poona.
95,000 had from time to time been withdrawn from the companypany by the first respondent with the assistance and sanction of the second respondent, professedly for the expenses of the companypany.
Further enquiries made by the Directors showed that moneys aggregating to over Rs.
134 1 of the Constitution granted by the High Court of Bombay, principally raises for companysideration the application and scope of Art.
R. Khanna and R. H. Dhebar, for the appellant.
The following Judgment of the Court was delivered by AYYANGAR, J. This appeal on a certificate under Art.
The facts necessary for the appreciation of the points involved in this appeal are few and may be briefly stated.
Among the papers of the companypany was a voucher dated August 9, 1952, evidencing the withdrawal of this amount by the first respondent and signed by him and this also bore the signature of the second respondent in token of her sanction.
