Judgment M. HIDAYATULLAH, J. ( 1 ) THE appellant Rajeswar Prosad Misra, who has been convicted under S. 408 of the Indian Penal Code on three counts and sentenced in the aggregate to suffer rigorous imprisonment for one year and to pay a fine of Rs. 2,000 (in default 6 months further rigorous imprisonment), was a travelling salesman of Messrs. Dabur (Dr. S. K. Burman) Private Ltd. The area of his operation was the Suburbs of Calcutta and the Mill Area. His duty was to secure orders from Agents and to effect delivery of goods to them in the Companys vans. He was required to receive payments from the agents and to deposit the money with the cashier of the Company. The three charges on which he was tried and convicted were: on 10th and 19/02/1958 he received, on behalf of the Company, sums of Rs. 300 and Rs. 240 respectively, from a firm Isaq and Sons and on 23/05/1958 a sum of Rs. 1502 from Bombay Fancy Stores, but failed to deposit these sums with the cashier. A complaint was accordingly filed against him in the Court of the Chief Presidency Magistrate, Calcutta on 29/08/1958,. The charges were framed against him under S. 408 Indian Penal Code on 16/07/1959. The prosecution proved the receipt of the money by him and his failure to deposit it with the cashier. His defence was that he had deposited the amount and that the case was started against him as a counter-blast to a dispute between him and V. D. Srivastava, sales supervisor, who had taken away certain documents from him and in respect of which he had filed a case against Srivastava, S. N. Mukerjee. General Manager, R. C. Gurman, Managing Director and others before the Police Magistrate, Alipore. On 17/08/1959 the appellant served through counsel on the complainant a notice to produce in court on 20/08/1959 the following documents: (A) Sales Book (Mill Area) for 1958. (B) Collection Register from 2/01/1958 upto 15/07/1958. (C) Challans for the year 1958 as per parcel No. etc. (entered in the related sale books) of Agent No. 1026, 1185, 296, 1021 and 181 (D) Agency Ledger for the year 1958. (E) Staff Security Deposit Register. (F) Relevant register/statement showing accuseds dues on account of commission earned on the basis of sales effected by him for the years 1957 and 1958. (entered in the related sale books) of Agent No. 1026, 1185, 296, 1021 and 181 (D) Agency Ledger for the year 1958. (E) Staff Security Deposit Register. (F) Relevant register/statement showing accuseds dues on account of commission earned on the basis of sales effected by him for the years 1957 and 1958. THE complainants counsel replied to the notice as follows:"your request to produce certain books cannot be complied with for the objections noted against the items separately. 1. Sale Book - This book cannot be produced unless you specify either the agent or the parcel number. On furnishing particulars the relevant entries will be shown. ( 2 ) COLLECTION Register- We have objection to the other salesmans collection being shown to you. As far as your clients returns are concerned they have been filed, if anything more relating to your client is necessary we will produce that on getting particulars. ( 3 ) CHALLANS for the year 1958 --We have no objection to produce them for your inspection. ( 4 ) AGENCY Ledger for 1958--Please supply particulars. The number of agents must be furnished. ( 5 ) STAFF Security Deposit Registerthis book cannot be produced for your inspection. Only an attested copy of the page showing security deposit by our client can be supplied. ( 6 ) ACCUSEDs Commission Account- Will be produced. Please supply the particulars asked for so that the necessary papers may be produced for your inspection by 22/08/1959. " ( 7 ) MR. Chakravarti contends that the discretion under S. 428 is subject to the same conditions as those in S. 423 and which were laid down in Abinash Chandra Boses case, AIR 1963 SC 316 . He lays special emphasis on the condition that the prosecution should not be given a second chance to fill up the gaps in its case. He submits that this has been done here. Mr. Sarjoo Prasad on the other hand explains the Abinash Chandra Boses case, AIR 1963 SC 316 with the aid of Ukha Kolhes case, AIR 1963 SC 1531 and submits that in the latter, this Court gave an exhaustive list of circumstances in which an order for retrial can be made and indicated that in cases falling outside those circumstances, the appellate Court has a discretion to order additional evidence, if considered necessary. ( 8 ) THESE arguments disclose a tendency to read the observations of this Court as statutory enactments. No doubt, the law declared by this Court binds Courts in India but it should always be remembered that this Court does not enact. The two cases of this Court point out that in criminal jurisdiction the guiding principle is that a person must not be vexed twice for the same offence. That principle is embodied in S. 403 of the Code and is now included as a Fundamental Right in Art. 20 (2) of the Constitution. The protection, however, is only as long as the conviction or acquittal stands. But the Code contemplates that a retrial may be ordered after setting aside the conviction or acquittal (as the case may be) if the trial already held is found to be unsatisfactory or leads to a failure of justice. In the same way, the Code gives a power to the appellate Court to take additional evidence, which for reasons to be recorded, it considers necessary. The Code thus gives power to the appellate Court to order one or the other as the circumstances may require leaving a wide discretion to it to deal appropriately with different cases. The two cases of this Court deal with situations in which a retrial was considered necessary by the appellate Court. In the case of Abinash Chandra Bose, AIR 1963 SC 316 this Court held that the order for retrial was not justified. In Ukha Kolhes case, AIR 1963 SC 1531 too the order for retrial was considered unnecessary because the end could have been achieved equally well by taking additional evidence. This Court mentioned, by way of illustration, some of the circumstances which frequently occur and in which retrial may properly be ordered. It is not to be imagined that the list there given was exhaustive or that this Court was making a clean cut between those cases where retrial rather than the taking of additional evidence was the proper course. It is easy to contemplate other circumstances where retrial may be necessary as for example where a conviction or an acquittal was obtained by fraud, or a trial for a wrong offence was held or abettors were tried as principal offenders and vice versa. Many other instances can be imagined. It is easy to contemplate other circumstances where retrial may be necessary as for example where a conviction or an acquittal was obtained by fraud, or a trial for a wrong offence was held or abettors were tried as principal offenders and vice versa. Many other instances can be imagined. The Legislature has not chosen to indicate the limits of the power and this Court must not be understood to have laid them down. Cases may arise where either of the two courses may appear equally appropriate. Since a wide discretion is conferred on appellate Courts, the limits of that Courts jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt, some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section. ( 9 ) ADDITIONAL evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here. We do not propose to do what the Legislature has refrained from doing, namely, to control discretion of the appellate Court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise. Commentaries upon the Code are full of cases in which the powers under S. 428 were exercised. We were cited a fair number at the hearing. Some of the decisions suffer from the sin of generalisation and some others from that of arguing from analogy. The facts in the cited cases are so different that it would be futile to embark upon their examination. We might have attempted this, if we could see some useful purpose but we see none. We would be right in assuming the existence of a discretionary power in the High Court and all that we consider necessary is to see whether the discretion was properly exercised. ( 10 ) THE appellant here had received three sums from the agents and the allegation was that he had misappropriated the amount. During his trial he asked for certain documents but for some reason into which it is hardly necessary to go,they were not brought. There was oral evidence tending to show that the money was not credited with the cashier of the Company. The Magistrate was not inclined to accept oral evidence and basing himself entirely on this failure, ordered an acquittal. The High Court took additional evidence because it was of the opinion that this evidence was necessary, It is manifest that if the High Court wished to rely on oral evidence, fair play at least demanded that the accused (appellant) should be given a chance of seeing the documents where the deposit by him would be mentioned, if made. Mr. Chakravarti contends that the Magistrate had drawn a presumption against the complainant from the failure of the complainant to produce this evidence and the order of the High Court deprived the appellant of the benefit of the presumption. There is no force in this argument which may be raised invariably in all cases in which the powers under S. 428 are exercised. There was a serious defalcation of money. The money was received and the only question was whether it was deposited or not. Oral evidence showed that it was not. The accused insisted that the books of account should have been brought and so they were brought as a result of the order. There was a serious defalcation of money. The money was received and the only question was whether it was deposited or not. Oral evidence showed that it was not. The accused insisted that the books of account should have been brought and so they were brought as a result of the order. The accused himself demanded that evidence and but for the vagueness of his demand, his evidence would have been produced earlier. Rather than lake a different view of the oral evidence, the High Court rightly thought that interests of justice and fair play demanded that this additional evidence should be taken. In our judgment, the High Court acted within the powers conferred by the Code. ( 11 ) THE appeal thus has no substance. It fails and is dismissed. Appeal dismissed.