<NAME>, J.

1. This appeal was brought by special leave from a judgment of <ORG> at Allahabad, which reversed an order of acquittal passed by the Sessions Judge of Cawnpore. The appellants (and others) were charged with murder and other offences, alleged to have been committed during the Cawnpore riots in March, 1931. The trial commenced before the Sessions Judge with the aid of three assessors; one of the assessors fell ill during the trial, which was duly continued with the aid of two assessors. The Sessions Judge, agreeing with the two assessors, found the accused not guilty of any of the offences charged against them, and acquitted all of them. The Sessions Judge formed a clearly expressed opinion that the evidence against the accused was wholly unworthy of belief. It will be sufficient to cite one passage in his judgment in which he says:

I think I have said sufficient to show that the whole case is riddled with perjury, and in the circumstances if any particular witness could not be shown on his statement and his previous statements to be definitely a liar, it would be impossible to have any confidence in what he said. For the same reason, I do not think it necessary for one to give in detail the evidence against any accused person. It does not matter how many witnesses mentioned any of the accused when none of them can possibly be believed. It is unfortunate that terrible crimes of this kind should have been committed and that nobody should be punished for them, but it would be equally terrible if the innocent suffered for the guilty. I have considered seriously whether I should not proceed against some of the witnesses for perjury, but on the whole, as they have already been victims of much cruelty, I think it would be unreasonable to take any action against them.

2. Under Section 417 of the Code of Criminal Procedure (hereinafter referred to as "the Code") <ORG> directed the Public Prosecutor to present an appeal to <ORG> from the order of acquittal so far as concerned nine of the accused, and an appeal was accordingly presented. Of these nine persons, three absconded, and the appeal proceeded against the six others, who are the present appellants.

3. On the hearing before <ORG> it was contended on behalf of the present appellants that on an appeal from an order of acquittal on a matter of fact it is not open to the appellate Court to interfere with the findings of fact of the trial Judge, unless it can be said that those findings could not have been reached by him had it not been for some perversity or incompetence on his part. <ORG> declined to accept this view. They held that no condition was imposed on <ORG> in such an appeal. They accordingly reviewed all the evidence in the case, and having formed an opinion of its weight and reliability different from that of the trial Judge, they acted upon that opinion and convicted the present appellants.

4. A petition was subsequently presented to His Majesty in Council for leave to appeal, upon the ground that conflicting views had been expressed by the High <ORG>s in different parts of India upon the question whether upon an appeal from an order of acquittal on a matter of fact an appellate <ORG> has the power to interfere with the trial Judge's findings of fact if the special circumstances indicated above do not exist. Upon the humble advice of their Lordships leave to appeal was granted in order that the difference of judicial opinion, which it was alleged existed, might be resolved. It is perhaps unnecessary to add that but for the desirability of establishing unanimity as to the powers of an appellate <ORG> on the hearing of such an appeal, no leave to appeal could properly have been sought.

5. The case has now been fully argued before their Lordships' Board, and it appears to them that the answer to the question in issue depends upon the construction of the Code . The relevant sections are six in number. Section 404 provides that no appeal shall lie from a judgment or order of a criminal Court except as provided for by the Code or other law. Section 410 gives the right to appeal to <ORG> to any one convicted on a trial held by a Sessions Judge or Additional Sessions Judge. Section 417 enables <ORG> to direct the Public Prosecutor to present an appeal to <ORG> from an original or appellate order of acquittal passed by any Court other than <ORG>. Section 418 provides that an appeal may lie on a matter of fact as well as a matter of law, except where the trial was by jury, in which case the appeal shall lie on a matter of law only. The code contains certain provisions for the summary dismissal of appeals, and Section 422 provides that if the appellate Court does not dismiss the appeal summarily, proper notices of the time and place of hearing shall be given to the appellant and the other parties to the appeal. Section 423 run thus:

(1) <ORG> shall then send for the record of the case, if such record is not already in <ORG>. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under Section 417 , the accused if he appears, the <ORG> may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may

(a) in an appeal from an order of acquittal, reverse such order and direct that further enquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such <ORG> or committed for trial, or (2) alter the finding, maintaining the sentence, or with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of Section 106 , Sub-section (3), not so as to enhance the same;

(c) in an appeal from any other order, alter or reverse such order;

(d) make any amendment or any consequential or incidental order that may be just or proper.

(2) Nothing herein contained shall authorise the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.

6. It will be observed that upon the express terms of the Code (1) an appeal lies from any order of acquittal passed by any <ORG> other than <ORG>; (2) such an appeal (the trial not being by jury) will lie upon a matter of fact; (3) on such an appeal the <ORG> may reverse-the order of acquittal, find the accused guilty and pass sentence on him. There is no indication in the Code of any limitation or restriction on the High <ORG> in the exercise of its powers as an appellate tribunal. Further, it is to be observed that no distinction is drawn as regards the powers of the High <ORG> in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction.

7. Many authorities were cited to their Lordships which undoubtedly reveal differences of views as to the powers of <ORG> in dealing with an appeal from an order of acquittal on a matter of fact. No useful purpose will be served by examining this long list of decisions. It will suffice if their Lordships state the conclusion which they have reached as the result of careful consideration of the full arguments which were addressed to them.

8. There is, in their opinion, no foundation for the view, apparently supported by the judgments of some Courts in India, that <ORG> has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which <ORG> has "obstinately blundered" or has "through incompetence, stupidity or perversity" reached such "distorted conclusions as to produce a positive miscarriage of justice," or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.

9. Sections 417 , 418 and 423 of the Code give to <ORG> full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code . But in exercising the power conferred by the Code and before reaching its conclusions upon fact, <ORG> should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that <ORG> in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice.

10. Their Lordships only desire to add that while the judgment of <ORG> does not state in express terms that these principles have been acted upon, they have no reason to think that <ORG> failed to take all proper matters into consideration in arriving at their conclusions of fact.

11. In the result, this appeal should be dismissed and their Lordships will humbly advise His Majesty accordingly.


ORDER <NAME>

1. These stay applications arise out of appeals Nos.E/31-33 & 92/2001-NB filed by the appellant against common order in original dated 3.11.2000 passed by the Commissioner of Central Excise, Jaipur vide which he had disallowed modvat credit of Rs.30,96,349/- to the company appellant no.(1) and imposed penalty of equal amount under Rule 57-I(4) and of Rs.10 lakhs under Rule 173-Q of the Central Excise Rules, alongwith the interest on them.He also imposed penalty of Rs.20 lakhs on Managing Director of the company <NAME>, appellant no.(2) and of Rs.1 lakh each on <NAME>, Vice President(Commercial) and <NAME> Vice President(Production) of the company, appellants Nos.(3) and (4) respectively. No penalty, however, has been imposed no M/s.HNPEL under Rule 173-Q(1)(bbb) of the Rules.

2. The company,appellant no.(1) was engaged in them manufacture of explosives.On 8.11.97 the Central Excise Officers visited the factory premises and resumed several incriminating documents.On examination of these document, it revealed that the company availed modvat credit in respect of 269 MTs of <ORG> on the basis of invoices issued by M/S.HNHEL Sohna and also seven consignments of special ordinary/plain detonates as detained in the Annexure 'B'; to the show cause notice.It was also noticed that the impugned consignments of the inputs were not at all received at the factory premises of the company and modvat credit of the amount in question was wrongly utilised by them for payment of the duty on the final product.The show cause notice was accordingly issued to the company as well as to the other appellants being the Managing Director and the Vice President, Commercial and Production,for the recovery of the modvat amount illegally utilised and also for taking panels action.the show cause notice was also issued to <NAME> of M/s.<ORG>. After getting their reply wherein the appellants controverted the allegations levelled against them in the show cause notice, the Commissioner through the impugned order disallowed the modvat credit and imposed penalty alongwith the interest on company(Appellant No.1) and also on other appellants as detailed above. No penalty, however, was imposed on <NAME>, M.d. of M/S.<ORG>,Sohna.

3. Through the present stay applications the appellants have sought the complete waiver of the amounts detailed above for the purposes of hearing of their appeals.The waiver of the modvat amount disallowed and the penalties imposed in the impugned order, has been sought by the company appellant No.(1) mainly on the ground that it had already been declared sick industrial unit under the Sick Industrial (Special Provisions) act, 1985 for having gone in losses.The counsel has also referred to the <ORG>'s judgment recorded in the case of <NAME> Vs. <ORG> 2001(128)ELT 67.

Wherein the <ORG> allowed the waiver of pre-deposit on the ground that the company got itself registered as a sick unit.He has also referred to the <ORG> judgment in the case of <ORG> CC & CCE, AP 2001(39) RLT 501 wherein it was directed by the <ORG> to hear the appeal without pre-deposit of the duty amount as the company had gone before <ORG> and had prima facie case.

4. The waiver of the pre-deposit of the penalty amounts imposed on the appellants nos.(2) to (4) who were Director, vide Presidents (Commercial) and (Production) respectively, at that time, has been sought on the ground that there was no material on the record to prove the non-receipt of the goods on which the modvat credit was taken by the company, from <NAME>, M.D. of M/s. <ORG> and moreover <NAME> had been let off by the Commissioner without imposing any penalty under Rule 173-Q(i)(bbb) of the central Excise Rules.

5. On the other hand, the learned SDR, has reiterated the correctness of the impugned order of the Commissioner and submitted that no prima facie case is made out in favour of any of the appellants for waiver of the pre-deposit of the amount and penalty amounts.

6. We have heard both the sides and gone through the record.

7. So far as the company appellant no.(1) is concerned, the modvat credit amount which had been disallowed and of the penalties imposed on them, deserves to be allowed as the copy of the order passed by the <ORG> dated 22.11.2000, which has been placed on record, shows that the company had been declared sick industrial unit under Industrial Companies (Special Provisions) Act, 1985 and the scheme had been also sanctioned. The <ORG> in Amrit Papers case (supra)dispensed with the pre-deposit of the amount as the company was registered as suck unit under <ORG>. Similarly, <ORG> in <ORG>) directed the <ORG> to hear the appeal of the company without pre-deposit of the duty amount as the company was already before <ORG>.

8. However, no prima facie case for allowing the total waiver of the penalty amounts, to other appellants is made. They were admittedly Managing Director and vice Presidents of the company at that time.The impugned order of the commissioner that their company availed the modvat credit of the disputed amount of Rs.30,96,349/- on the basis of the invoices without receipt of the goods actually from <ORG><ORG> and its Managing Director <NAME>, cannot be prima facie said to be in any manner illegal or invalid.Non-imposition of penalty on <NAME>, Managing Director of <ORG><ORG> by the commissioner cannot itself be taken to be sufficient ground for holding that the impugned order of the Commissioner prima facie is illegal infirm or defective at this stage.

9. The equity and balance of convenience also do not appear to be in favour of the appellants nos.(2)and (4) for allowing them total waiver of the penalty amounts for the purposes of hearing of the appeals. However, keeping in view the facts and circumstances of the case,the issues involved, in our view the ends of justice would be met and the <ORG>'s interest would also stand safeguarded, if <NAME>, appellants no.2 is directed to make a deposit of Rs.5 lakhs (Rupees five lakhs) out of the total penalty amount of Rs.20 lakhs (Rupees twenty lakhs) and the other appellants nos.(3) and (4) of Rs.50,000/0 (Rupeesd fifty thousand)each out of Rs.1 lakh (Rupees one lakh) each as imposed on them. Therefore, we order accordingly. Appellants, Shri <NAME> is, accordingly directed to make deposit of Rs.5 lakhs (Rupees fifty thousand)each within a period of eight weeks from the date of receipt of copy of this order. On making these deposits, the pre-deposit of the balance penalty amounts, by these appellants shall stand waived and recovery stayed till the disposal of the appeals.But, in case these appellants failed to comply with the terms of this order within the stipulate period, then their appeals will become liable to be dismissed under section 35-F of the Central Excise Act. However, as discussed above, the company appellants no.1 is allowed waiver of the entire modavt and penalty amounts,f or the disposal o their appeal.The stay applications of all the appellants stand siposed off in the above said terms.

10. To come up for reporting compliance by appellants nos.(2) to (4) on 27/7/2001.