PETITIONER:

DR. VIMLA

Vs.

RESPONDENT:

DELHI ADMINISTRATION

DATE OF JUDGMENT:

29/11/1962

BENCH:

SUBBARAO, K.

BENCH:

SUBBARAO, K.

IMAM, SYED JAFFER

AYYANGAR, N. RAJAGOPALA

MUDHOLKAR, J.R.

CITATION:

1963 AIR 1572 1963 SCR Supl. (2) 585

CITATOR INFO :

D 1963 SC1577 (7,9,10)

RF 1976 SC2140 (10)

ACT:

Criminal Trial-Meaning of ‘dishonestly’ and ‘ fraudu- lently’-Meaning of ‘false document’ and ‘forgery’-Indian Penal Code, 1860 (Act 45 of 1860), ss. 24, 25, 463, 464, 467, 468.

HEADNOTE:

Dr. Vimla purchased a car in the name of her minor daughter Nalini aged about 6 months. The price of tile car was paid by her. The transfer of the car was notified in the name of Nalini to the Motor Registration Authority. The insurance policy already issued was transferred in the name of Nalini after the proposal form was signed by Dr. Vimla. Subsequently, Dr. Vimla filed two claims on the ground that the car met with accidents. She signed the claim forms as Nalini. She also signed the receipts acknowledging the pay- ment of compensation money as Nalini. Dr. Vimla and her husband were prosecuted under sections 120 B, 419, 467 and 468 of the Indian Penal Code. Both the accused were acquitted by the Sessions Judge. The State went in appeal and the High Court convicted Dr. Vimla under s. 467 and 468 of the Indian Penal Code. Dr. Vimla came to this Court by special leave.

Held, that appellant was not guilty of the offence under s. 467 and 468 of the Indian Penal Code. She was certainly guilty of deceit because though her name was Vimla, she signed in all the relevant papers as Nalini and made the Insurance Company believe that her name was Nalini, but the said deceit did not either secure to her advantage or cause any noneconomic loss or injury to the Insurance Company. The charge did not disclose any such advantage or injury nor was there any evidence to prove the same. The entire transaction was that of Dr. Vimla and it was only put through in the name of her minor daughter. Nalini was in fact either a Benamidar for Dr. Vimla or her name was used for luck or other sentimental considerations. The Insurance Company would not have acted differently even if the car stood in the name of Dr. Vimla.

586

The definition of ‘false document’ is a part of the defini- tion of forgery’ and both must be read together. If so read, the ingredients of the offence of forgery relevant to the present case are as follows: (1) fradulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another under his authority ; and (2) making of such a document with an intention to commit fraud or that fraud may be committed.

The expression ‘fraud’ involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non- economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. Haycraft v. Creasy, 1801) 2 East 92, in re. London and Globe Finance Corporation Ltd., (1903) 1 Ch. 732 R. v. Welham, (1960) 1 All. E R. 260, Kotamraju Yenkatrayadu v. Emperor (1905) I. L. R. 28 Mad. 90, Surendra Nath Ghose v. Emperor, (1910) I. L. R. 38 Cal. 75, Sanjiv Ratnappa v. Emperor, A. I. R. 1932 Bom. 545 and Emperor v. Abdul Hamid, A. 1. R. 1944 Lah. 380, referred to.

JUDGMENT:

CRIMINAL APPELLATE, JURISDICTION: Criminal Appeal No. 213 of 1960.

Appeal by special leave from the judgment and order dated March 24, 1960, of the Punjab High Court (Circuit Bench)Delhi in Criminal Appeal Case No. 41-D of 1958. H. L. Anand, and K. Baldev Mehta, for the appellant. V. D. Mahajan and P. D. Menon, for the respondent. 1962. November 29. The Judgment of the Court was delivered by

587

SUBBA RAO J.-This appeal by Special leave raises the question as to the true meaning of the expression “fraudulently’ in s. 464 of the Indian Penal Code. The facts either admitted or found by the courts below may be briefly stated. The appellant is the wife of Siri Chand Kaviraj. On january 20, 1953, she purchased an Austin 10 Horse Power Car with the registration No. DLA. 4796 from Dewan Ram Swarup in the name of her minor daughter Nalini aged about six months at that time. The price for the car was paid by Dr. Vimla. The transfer of the car was notified in the name of Nalini to the Motor Registration Authority. The car at that time was insured against a policy issued by the Bharat Fire & General Insurance Co., Ltd., and the policy was due to expire sometime in April, 1953. On a request made by Dewan Ram Swarup, the said policy was transferred in the name of Nalini. In that connection, Dr. Vimla visited the Insurance Company’s Office and signed the proposal form as Nalini. Subsequently, she also filed two claims on the ground that the car met with accidents. In connection with these claims, she signed the claim forms as Nalini and also the receipts acknowledging the payments of the compensation money as Nalini. On a complaint made by the company alleging fraud on the part of Dr. Vimla and her husband, the police made investigation and prosecuted Dr. Vimla and her husband Siri Chand Kaviraj in the Court of Magistrate 1st Class Delhi. The ‘Magistrate committed Dr. Vimla and her husband to Sessions to take their trial under ss. 120-B, 419, 467 and 468 of the Indian Penal Code. The learned Sessions judge held that no case had been made out against the accused under any one of those sections and on that finding, acquitted both of them. The State preferred an appeal to the High Court of Punjab and the appeal was disposed of by a Division Bench of that court comprising Falshaw

588

and Chopra,JJ. The learned judges confirmed the acquittal of Siri Chand; but in regard to Dr.Vimla, they confirmed her acquittal under s. 419 of the Indian Penal Code, but set aside her acquittal under ss. 467 and 468 of the Code and instead, convicted her under the said sections and sentenced her to imprisonment till the rising of the court and to the payment of a fine of Rs. 100/- or in default to under-, go simple imprisonment for two weeks. Dr. Vimla has preferred the present appeal by special leave against her conviction and sentence.

The facts found may be briefly summarised thus : Dr. Vimla purchased a motor car with her own money in the name of her minor daughter, had the insurance policy transferred in the name of her minor daughter by signing her name and she also received compensation for the claims made by her- in regard to the two accidents to the car. The claims were true claims and she received the moneys by signing in ,he claim forms and also in the receipts as Nalini. That is to say, Dr. Vim] a in fact and in substance put through her transactions in connection with the said motor car in the name of her minor daughter. Nalini was in fact either a benamidar for Dr. Vimla or her name was used for luck or other sentimental considerations. On the facts found, neither Dr. Vimla got any advantage either pecuniary or otherwise by signing the name of Nalini in any of the said documents nor the Insurance Company incurred any loss, pecuniary or otherwise, by dealing with Dr. Vimla in the name of Nalini. The Insurance Company would not have acted differently even if the, car stood in the name of Dr. Vimla and she made the claims and received the amounts from the insurance company in her name. On the said facts, the question that arises in this case is whether Dr. vimla was guilty of offences under ss. 463 and 464 of the Indian Penal Code.

589

Learned Counsel for the appellant contends that on the facts found, the appellant would not be guilty of forgery as she did not “fraudulently” sign the requisite forms and the receipts in the name of Nalini, as. by so signing, she did not intend to cause injury to the insurance company. In other words, the contention was that a person does not act fraudulently within the meaning of s. 464 unless he is not only guilty of deceit but also he intends to cause injury to the person or persons deceived, and as in the present case the appellant had never had the intention to cause injury to the insurance company and as on the facts found no injury had been caused at all to the company, the appellant could not be found guilty under the said sections. Before we consider the decisions cited at the Bar it would be convenient to look at the relevant provisions of the Indian Penal Code.

Section 463 : Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.

Section 464 : A person is said to make a false document- First–Which dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document/or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time

590

at which he knows that it was not made, signed, scaled or executed; or

The definition of “false document” is a part of the definition of “forgery”. Both must be read together. If so read, the ingredients of the offence of forgery relevant to the present enquiry are as follows , (1) fraudulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another or under his authority ; (2) making of such a document with an intention to commit fraud or that fraud may be committed. In the two definitions, both mens rea described in s.464 i. e., “fradulently” and the intention to commit fraud in s. 463 have the same meaning. This redundancy has perhaps become necessary as the element of fraud is not the ingredient of other in- tentions mentioned in s. 463. The idea of deceit is a necessary ingredient of fraud, but it does not exhaust it; an additional element is implicit in the expression. The scope of that something more is the subject of may decisions. We shall consider that question at a later stage in the light of the decisions bearing on the subject. The second thing to be noticed is that in s. 464 two adverbs, “dishonestly” and “fraudulently” are used alternatively indicating thereby that one excludes the other. That means they are not tautological and must be given different meanings. Section 24 of the Penal Code defines “dishonestly” thus :

“Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly”. “Fraudulently” is defined in s. 25 thus:

” A perosn is said to do a thing fraudulently if he does that thing with intent to

591

defrand but not otherwise”.

The word “defraud” includes an element of deceit. Deceit is not an ingredient of the definition of the word “dishonestly” while it is an important ingredient of the definition of the word “fraudulently”. The former involves a pecuniary or economic gain or loss while the latter by construction excludes that element. Further) the juxtaposition of the two expressions “‘dishonestly” and “fraudulently” used in the various sections of the Code indicates their close affinity and therefore the definition of one may give colour to the other. To illustrate, in the definition of “dishonestly”, wrongful gain or wrongful loss is the necessary enough. So too, if the expresssion “fraudulently’ were to be held to involve the element of injury to the person or persons deceived, it would be reasonable to assume that the injury should be something other than pecuniary or economic loss. Though almost always an advantage to one causes loss to another and vice versa, it need not necessarily be so. Should we hold that the concept of fraud” would include not only deceit but also some injury to the person deceived, it would be appropriate to hold by analogy drawn from the definition of “dishonestly” that to satisfy the definition of “‘fraudulently” it would be enough if there was a non- economic advantage to the deceiver or a non-economic loss to the deceived. Both need not co-exist.

Let us now consider some of the leading text book writers and, decisions to ascertain the meaning of the word “fraudulently”.

The classic definition of the word “fraudulently” is found in Steplien’s History of the Criminal law of England, Vol. 2, at p. 121 and it reads

“I shall not attempt to construct a definition which will meet every case which might

592

be suggested, but there is little danger in saving that whenever the words “fraud” or intent to defraud” or “fraudulently” occur in the definition of a crime two elements at least are essential to the commission of the crime : namely, first, deceit or an intention to deceive or in some cases mere secrecy ; and secondly, either actual injury or possible injury or to a risk of possible ‘injury by means of that deceit or secrecy…………. This intent is very seldom the only, or the principal, intention entertained by the fraudulent person, whose principal object in nearly every case is his own advantage…………….. A practically conclusive test of the fraudulent character of a deception for criminal purposes is this : Did the author of the deceit derive any advantage from it which could not have been had if the truth had been known ? If so it is hardly possible that the advantage should not have had an equivalent in loss or risk of loss to someone else, and if so, there was fraud.”

It would be seen from this passage that “‘fraud” is made up of two ingredients, deceit and injury. The learned author also realizes that the principal object of every fraudulent person in nearly every case is to derive some advantage though such advantage has a corresponding loss or risk of loss to another. Though the author has not visualized the extremely rare situation of an advantage secured by one without a corresponding loss to another, this idea is persued in later decisions.

As regards the nature of this injury, in Kenny’s Outline of Criminal Law, 15th Edn., at p. 333, it is stated that pecuniary detriment is unnecessary.

In Haycraft v. Creasy (1) LeBlanc, observed (1) (1801) 2 East 92.

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“by fraud is meant an intention to deceive; whether it be from any expectation of advantage to the party himself or from the ill-will towards the other is immaterial.” This passage for the first time brings out the distinction between an advantage derived by the person who deceives in contrast to the loss incurred by the person deceived. Buckley. J., in Re London & Clobe Finance Corporation Ltd. (1) brings out the ingredients of fraud thus : “To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To. defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury’ More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.”

The English decisions have been elaborately considered by the Court of Criminal Appeal in R. v. Welhant (2). In that case, hire-purchase finance companies advanced money on a hire-purchase form and agreement and on credit-sale agreements witnessed by the accused. The form and agreements were forgeries The accused was charged with offences of Uttering forged documents with intent to defraud. It was not proved that he had intended to cause any loss of once to the finance companies. His intention had been by deceit to induce any person who was charged with the duty of seeing that the credit restrictions then current were observed to act in a way in which lie would not act if he had known the true facts, namely, not to prevent the advancing of large sums of money exceeding the limits allowed by law It, the time. The Court held that the said intention amounted to intend to defraud.

(1) (1903) 1 ch.. 732.

(2) (1960) 1 All. E. R. 260, 264, 266.

594

Hilbery, J., speaking for the court, pointed out the distinction between deceit and defraud and came to the conclusion that ,to defraud” is to deprive by deceit.” Adverting to the argument that the deprivation must be something of value, i. e. economic loss, the learned judge observed

“We have, however, come to the conclusion that this is too narrow at view. While, no doubt, in most cases of an intention to defraud the intention is to cause an economic loss’ there is no reason to introduce any such limitation. Provided that the intention is to cause the person deceived to act to his real detriment, it matters not that lie suffers no economic loss. It is sufficient if the intention is to deprive him of a right or to induce him to do something contrary to what it would have been his duty to do, had lie not been deceived.”

On the basis of the said principle it was held that the accused by deceit induced the finance companies to advance moneys contrary to the credit restrictions and that he was guilty of the offence of forgery. This decision is therefore a clear authority for the position that the loss or, the injury caused to the person deceived need not be economic loss. Even a deprivation of a right without any economic consequences would be enough. This decision has not expressed any definite opinion on the question whether a benefit to the accused without a corresponding loss to the person deceived would amount to fraud. But it has incidentally touched upon that aspect. The learned judge again observed.

“……………………………… This the appellant was doing in order that he might benefit by getting further loans.”

This may indicate that a benefit derived by the 595

person deceiving another may amount to an act to defraud that other.

A full Bench of the Madras High Court , in Kotamraju Venkatrayadu v. Emperor (1) had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a certificate purporting to have been signed by the headmaster of it recognized High School that he was of good character land had attained his 20th year. It was found in that case that the candidate had fabricated the signature of the headmaster. The court held that the accused was guilty of forgery. White, C.J., observed : “Intending to defraud means, of course, something more than deceiving.”

He illustrated this by the following example: “A tells B a lie and B believes him. B is deceived but it does not follow that A intended to defraud B. But, as it seems to me, if A tells B a lie intending that B should do something which A conceives to be to his own benefit or advantage, ‘and which, if done, would be to the loss or detriment of B, A intends to defraud B.”

The learned Chief justice indicated his line of thought, which has some bearing on the question now raised, by the following observations :

“I may observe, however, in this connection that by s. 24 of the Code a person does a thing dishonestly who’ does it with the intention of causing wrongful gain or wrongful loss. It is not necessary that there should be an intention to cause both. On the analogy of this definition, it might be said that either an intention

(1) (1905) I.L.R. 28 Mad. 99,96,97.

596

to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit, is an intent to defraud.”

But, he found in that case that both the elements were present. Benson,J., pointed out at p. 114 : “I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself’ by means of his’ deceit, but also by reason of the injury which must necessarily result to the University and, through it to the public from such acts if unrepressed. The University is injured, if through the evasion of its byelaws, it is induced to declare that certain persons have fulfilled the conditions prescribed for Matriculation and are entitled to the benefits of Matriculation, when in fact, they have not fulfilled those conditions, for the value of its examinations is, depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a guarantee that they have in truth fulfilled the conditions on which alone the University professes to certify them as passed, and to admit them to the benefis of Matriculation.” Boddam, J., agreed with the learned Chief justice and Benson, J. This decision accepts the principle laid down by Stephen, namely, that the intention to defraud is made up of two elements, first an intention to deceive and second, the intention to expose some person either to actual injury or risk of possible injury but the learned judges were also inclined to hold on the analogy of the definition of “dishonestly” in s. 24 of the Code that intention to secure a or advantage to the deceiver satisfies the second con- dition

597

The Calcutta High Court dealt with this question in Surendra Nath Ghose v. Emperor (1) There, the accused affixed his signature to a kabuliat which was not required by law to be attested by witnesses, after its execution and registration, below the names of the attestings witnesses but without putting a date or alleging actual presence at the time of its execution. The court held that such an act was not fraud within the first clause of s. 464. of the Penal Code inasmuch as it was not done dishonestly or fraudulently within the meaning of ss. 24 and 25 thereof. Mookerjee, J., defined the words “intention to defraud” thus:

“The expression, “intent to defraud” implies conduct coupled with intention to deceive and thereby to injury in other words, “defraud” involves two conceptions, namely, deceit and injury to the person deceived, that is, infringement of some legal right possessed by him, but not necessarily deprivation of property.”

This view is in accord with the English decisions and that expressed by the Full Bench of the Madras High Court. This decision does not throw any light on the other question whether advantage to the deceiver without a corresponding loss to the deceived would satisfy the second ingredient of the expression “intent to defraud”.

A division Bench of the Bombay High Court in Sanjiv Ratnappa v. Emperor (2) had also occasion to consider the scope of the expression “fraudulently” in s. 464 of the Penal Code. The court held that for an act to be fraudulent there must be some advantage on the one side with a corresponding loss on the other. Adverting to the argument that an advantage secured by the deceiver would constitute fraud Broomfield, J., observed thus

“I think in view of the Bombay decisions to which I have referred we must hold that that

(1) (1910) I.T..R. 38 Cal. 75, 89-90. (2) A.I.R. 1932 Bom. 545, 550.

598

is an essential ingredient in the definition of forgery. In the great majority of cases, the point is not very material…………… But there many occasionally be a case in which the element of loss or injury is absent and I think the present is such a case.”

This decision therefore does not accept the view of White C. J., of the Madras High Court.

A Division Bench of the Lahore High Court,, in Emperor v. Abdul had also expressed its view on the meaning of the word “fraudulently.” The learned Judges accepted Stephen’s definition but proceeded to observe as follows

“It may be noted in this connection that the word “‘injury” as defined in s. 44, Penal Code, is very wide as denoting “any harm whatever, illegally caused to any person, in body, mind, reputation or property.”

The learned judges were willing to assume that in almost every case an advantage to one would result in an injury to the other in the widest sense indicated by s. 44 of the Penal Code.

The other decided case cited at the Bar accept the necessity for the combination of a deceit by one and injury to other constitute an act to defraud and therefore, it is not necessary to multiply citations. No other decision cited-at the Bar throws any light on the further question, namely, whether an advantage secured to the deceiver without a corresponding loss to the deceived would satisfy the second condition laid down by the decisions.

To summarize : the expression “‘defraud” inoslves two elements, namely, deceit and injury to the person deceived. injury is something other than

(1) A.I.R. 1944 Lah. 380,382.

599

economic loss that is’, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non economic or non- pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.

Now let us apply the said principles to the facts of the present case. Certainly, Dr. Vimla was guilty of deceit, for though her name was Vimla, she signed in all the relevant papers as Nalini and made the insurance company believe that her name was Nalini, but the said , deceit did not either secure to her advantage or cause any non-economic loss or injury to the insurance company. The charge does not disclose any such advantage or injury, nor is there any evidence to prove the same. The fact that Dr. Vimla said that the owner of the car who sold it to her suggested that the taking of the sale of the car in the name of Nalini would be useful for income-tax purposes is not of any relevance in the present case, for one reason, the said owner did not say so in his evidence and for the other, it was not indicated in the charge or in the evidence. In the charge framed, she was alleged to have defrauded the insurance company and the only evidence given was that if it was disclosed that Nalini was a minor, the insurance company might not have paid the money. But as we have pointed out earlier, the entire transaction was that of Dr. Vimla and it was only put through in the name of her made minor daughter for reasons best known to herself. On the evidence as disclosed, neither was she benefited nor the insurance company incurred loss in any sense of the term. In the result, we allow the appeal and hold that the appellant was not guilty of the offence under 600

ss. 467 and 468 of the Indian Penal Code. The conviction and sentence passed on her are set aside. Fine, if paid, is directed to be refunded to the appellant, Appeal allowed.

 

PETITIONER:

JASWANTRAI MANILAL AKHANEY

Vs.

RESPONDENT:

THE STATE OF BOMBAY.

DATE OF JUDGMENT:

04/05/1956

BENCH:

SINHA, BHUVNESHWAR P.

BENCH:

SINHA, BHUVNESHWAR P.

BOSE, VIVIAN

JAGANNADHADAS, B.

CITATION:

1956 AIR 575 1956 SCR 483

ACT:

Criminal breach of trust-Conviction of a banker, Validity of–Government Promissory Notes pledged with a bank to cover overdraft -No overdraft by the pledgor-Managing Director acting on behalf of all-the Directors pledging the Notes to borrow money for the use of the bank-Legality-Sale of the Notes by the creditors to realise their dues and consequent inability of the bank to return them-Mens rea –Sanction to prosecute by the Company Judge, if required Framing Of charge, if defective-Indian Penal Code (Act XLV of 1860), ss. 409, 79-Indian Contract Act (IX of 1872) s. 179-Indian Companies Act(VII of 1913), S.179– code of Criminal Procedure(Act V of 1898), ss. 221, 222, 223.

HEADNOTE:

The appellant was the Managing Director of a bank and held a power of attorney to act on behalf of its Directors and authorising him to borrow money on behalf of the bank. Certain Government -Promissory Notes were pledged with the bank by another bank to cover an overdraft account up to a specified amount. There was, however, no overdraft by the pledgor. The pledgee bank was in a precarious financial condition. The appellant pledged the securities with a third party to get a loan for the bank’s use and on its failure

484

to repay the same on demand, the creditors sold the securities for realising their dues. The pledgee bank was thus no longer in a position to return the securities on demand made by the pledgor. Information. was lodged with the police at the instance of the -Official Liquidator appointed to wind up the bank and the appellant was put up for trial under s. 409 of the Indian Penal Code. Held, that the appellant was guilty of the offence charged and the appeal must be dismissed.

Held further, that in the absence of any overdraft by the pledgor, the pledgee bank acquired no interest in the securities which it could deal with and s. 179 of the Contract Act had no application.

That the delivery of the securities by the pledgor made the pledgee a trustee for him and he remained the owner subject to any especial interest created in favour of the pledgee by the agreement and in a case, such as the present, where there was no question of redeeming the securities by the pledgor, there having been no overdraft, or sale by the pledgee in enforcement of any especial interest, as none had accrued to it, the pledgee bank had no right to deal with the securities.

That the question whether the remedy of the pledgor was by way of a suit for damages for breach of contract or by way of a criminal prosecution would depend on whether or not there was mens rea and. other elements constituting the offence.

That although the offence of criminal breach of trust presupposes an entrustment, such entrustment need not conform to all the technicalities of the law of trust, and, consequently, in a case such as the present where the accused had the necessary power and exercised dominion over the securities and caused wrongful loss to the pledgor and wrongful gain to the pledgee by dealing with the securities, he was guilty of the offence.

That the provisions of s. 79 of the Indian Penal Code were of no avail to him as it was never pleaded in his written statement nor found by the courts below that he Was unaware of the fact that there had been no overdraft at all. That no sanction under s. 179 of the Companies Act was re- quired for the prosecution. The provisions of that section were of a permissive character enabling the court Liquidator to do certain things with the permission of the court and did not in any way control the general law so as to restrict the power of the court to take cognisance of an offence or of the Police to initiate a prosecution or even of a private citizen to move the machinery of the criminal courts to bring an offender to justice.

Basdeo Agarwalla v. King-Emperor, ([1946] F.C.R. 93), distinguished and held inapplicable.

That the charge framed against the accused fulfilled the requirements of ss. 221 and 222(1) of the Code of Criminal Procedure and

485

as the particulars mentioned in the charge were sufficient to give him notice of the matter he was being charged with it was not necessary to set out also the manner of the commission of the offence as required by s. 223 of the Code.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 152 of 1954.

Appeal by Special Leave from the Judgment and Order dated the 20th October 1953 of the Bombay High Court in Criminal Appeal No. 652 of 1953 arising out of the Judgment and Order dated the 9th April 1953 of the Court of Presidency Magistrate. 19th Court, Bombay in Criminal Case No. 12164/P of 1949.

H.J. Umrigar and R. A. Govind for the appellant. Porus A. Mehta and R. H. Dhebar for P. G. Gokhale for the respondent.

1956. May 4. The Judgment of the Court was delivered by SINHA J.-This is an appeal by special leave directed against the concurrent orders and judgments of the courts below convicting the appellant, under section 409, Indian Penal Code and sentencing him to rigorous imprisonment for three months and a fine of Rs. 201 or in default, further six weeks rigorous imprisonment., As the appellant had been convicted and sentenced for a similar offence in another case tried by the same Presidency Magistrate, 19th Court, Esplanade, Bombay, he directed the sentence in this case to run concurrently with the sentence in the other case. The charge against the accused in the, trial court is in these terms:-

“The Accused is charged under section 409 of the Indian Penal Code for committing criminal breach of trust in respect of property to wit 3% Government Promissory Loan Notes 1966-68 of the face value of Rs. 50,000 and 2-1/4% Government Promissory Notes 1961 of the face value of Rs. 25,000 in or about February to May 1949 entrusted to him in his capacity as Managing Director of the Exchange Bank of 486

India and Africa Ltd, and belonging to the Cambay Hindu Merchants Co-operative Bank.. (Detailed charge is separately framed)”.

The appellant at all material times was the Managing Director of the Exchange Bank of India and Africa Ltd., with its head office at Bombay, which hereinafter will be referred to as the Exchange Bank. He held a power of attorney to act as the Managing Director on behalf of the Directors of the Company. By that power the accused was invested with the authority to borrow money on behalf of the Bank. In 1944 the Cambay Hindu Merchants Co-operative Bank at Cambay, which hereinafter will be referred to as the Co- operative Bank., had opened a current account with the Exchange Bank. On instructions from the Co-operative Bank, the Exchange Bank purchased in August 1946 securities worth Rs. 25,000 in its own name with money belonging to the Co- operative Bank and the securities were kept with the Exchange Bank as a cover for overdraft. In March 1948 two further lots of Government security of Rs. 25,000 each of the value of Rs. 50,000 were purchased likewise and left with the Exchange Bank for the same purpose. On the 14th May 1948 the two banks entered into a contract evidenced by three documents to be noticed in detail hereinafter. Shortly stated, the Exchange Bank agreed to grant the Co- operative Bank credit for overdraft up to a limit of Rs. 66,150 and as a security for the overdraft the Government securities of the value of Rs. 75,000 already in the custody of the Exchange Bank was pledged to the latter. These securities of the face value of Rs. 75,000 will hereinafter be referred to as “the securities”. But it appears that the Co-operative Bank had no occasion to operate on the overdraft account until the 28th February 1949 when the crucial event happened, namely the Exchange Bank finding itself in an embarrassed financial position took a loan from the Canara Bank of one lakh of rupees by pledging the securities as also other securities with which we are not concerned in this case. On the 24th April 1949 the Exchange Bank paid off the dues of the

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Canara Bank by taking a fresh loan of the same amount of one lakh from Messrs Merwanji Dalal & Co. and pledging the same securities as’ had been pledged to the Canara Bank. On the 28th April 1949 Messrs Merwanji Dalal & Co. demanded back their money by the forenoon of the day following. As the Exchange Bank could not -pay the amount as demanded, the pledgees aforesaid sold those securities including the securities belonging to the Co-operative Bank, for realising their dues, on the 3rd May 1949.

In the meantime, -in answer to a letter -from the Co- operative Bank to the Exchange Bank asking for a certificate for the securities held by the latter on behalf of the former in the overdraft account, the Exchange Bank issued the certificate dated the 1st April 1949 to the effect that at the close of business on the 31st March 1949 it held Government of India securities of the total value of Rs. 75,000 as security against the overdraft facilities granted to the Co-operative Bank and that there was no overdraft against the said securities on that date. Subsequently, on the 29th April 1949 the Co-operative Bank wrote to the Exchange Bank asking the latter to hand over securities of the face value of’ Rs. 50,000 to the Central Bank. The Central Bank also on behalf of the Co-operative Bank made a similar demand and as the Exchange Bank did not comply with that requisition, the Central Bank informed the Co-operative Bank by a letter dated the 3rd May 1949 that the securities had not been banded over to the Central Bank as directed by the Co-operative Bank. The Co-operative Bank then wrote to the Reserve Bank for stoppage of the securities of the value of Rs. 25,000. It became clear by then that the Exchange Bank was not in a position to return the securities to the owners, that is to say, the Co-operative Bank. In spite of the best efforts of the appellant as the Managing Director of the Exchange Bank, to stave off the crisis by borrowing money from different sources, the run on the bank became so great that the directors applied for and obtained from the Com-

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pany Judge of the Bombay High Court a moratorium of 15 days. On the 18th May 1949 a provisional liquidator was appointed in respect of the Exchange Bank on a creditor’s application and on the’ 24th June 1949 the Official Liquidator was appointed to wind up the bank. On the 25th June 1949 one M. N. Raijee as agent of the Official Liquidator lodged information with the police charging the appellant with breach of trust in respect of a number of securities including the securities belonging. to the Co-operative Bank. On the 31st October 1949 a charge-sheet was submitted by the police under section 409, Indian Penal Code against the appellant in respect of the securities of the face value of Rs. 75,000 belonging to the Cooperative Bank. On the 4th April 1952 the charge as quoted above was framed against the appellant. The delay of about two and a half years in placing the appellant on trial is attributable to the fact that at the request of the accused the trial in respect of this charge was stayed pending the disposal of the other case against him.

At the trial the prosecution examined the Manager of the Co- operative Bank as P.W. 1. He proved the transactions between that Bank and the Exchange Bank. The second witness for the prosecution was a partner in the firm of Messrs Merwanji Bomanji Dalal during the material time. He proved the transaction of the loan by his firm to the Exchange Bank of one lakh of rupees on the pledge of the securities belonging to the Co-operative Bank, as also other securities. He deposed to the fact that it was the appellant who finalised the transaction on behalf of the Exchange Bank. He also proved that in default of payment by the Exchange Bank on demand by his firm, it sold the securities including the securities in question and realised the dues from the Bank from the sale proceeds of securities of the value of one lakh of rupees. The third witness for the prosecution was’ the Chief Accountant of the Exchange Bank who functioned as such till the 2nd May 1949 when the Bank closed down. He also had a power of attorney from the Bank to act jointly with another person

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with a similar power of attorney. According to this witness, the appellant as the Managing Director exercised the powers of borrowing, raising money, -purchasing, selling and pledging of bonds., scrips and other forms of securities on behalf of the Bank and its constituents during the relevant period. and that no one else exercised those powers. He -also testified to the fact that there was a crisis in the affairs -of the Bank from about the middle of February 1949-and that there was a rush on the Bank which continued till it closed down. He also proved the fact that during the-material time the Co-operative Bank had a credit balance in its favour and that there was no overdraft by that Bank from the Exchange Bank. He proved Exhibits E, F and G which are the documents evidencing the contract between the two banks in respect of the pledge of the security. He corroborated the previous witness that it was the appellant who negotiated and finalised the loan of one lakh of rupees from the Canara Bank and that the securities in question along with others had been pledged to the Canara Bank. It was he who had endorsed the securities to the Canara Bank. He stated that the Exchange Bank had submitted to the Canara Bank a declaration to the effect that the said securities belonged absolutely to the Exchange Bank. As there was a heavy rush of depositors on the bank,the loan from the Canara Bank was taken to satisfy the demand of the depositors. The most important witness examined on behalf of the prosecution is P.W. 4, Ganpati Venkatrao Kini. He was an accountant in the Exchange Bank during the relevant period. He was also working with the Official Liquidator of the Bank after its liquidation was ordered by court. Like the previous witness, he also had a power of attorney to act only in conjunction with another per-son holding a similar power. He supports the previous witness in saying that the power of borrowing money or of purchasing, selling or pledging or repledging securities was exercised by the appellant and by no other person on all material dates. He also corroborates the previous witness and’ states that 490

there was a crisis in the bank from about the middle of February 1949 and that there was a heavy rush on the bank from that time till it closed down. He also proves Exs. E, F and G and states that from the 14th May 1948 when these documents were executed between the two banks till the 2nd May 1949 when the Exchange Bank closed its doors there was no overdraft by the Co-operative Bank which always had a credit balance. He also gives the -details of the transaction of the loan of one lakh between the Exchange Bank and the Canara Bank and the details of the securities pledged by way of security for that loan. He makes the following very significant statement:-

“I had handed over the two securities belonging to the Cambay Co-operative Bank to the accused for being handed over to the Canara Bank against the loan. The accused actually asked me for these securities and I handed them to the accused”.

To a court question as to why he did not bring it to the notice of the appellant that the securities in question belonged to the Co-operative Bank and not to the Exchange Bank, his answer is in these words.–

“In fact, the accused himself told me to bring securities pleged by the Cambay Co-operative Bank with the Exchanage Bank”.

He also proves Ex. L, which is a very important document in this case and proves that it was signed by the accused. He further states that the declaration in that document that the securities rep I resented the Exchange Bank’s investments was not correct. He also makes detailed statements as to the different kinds of interest which the appellant had in the Exchange Bank. He was drawing Rs. 2,500 as monthly salary as the Managing Director. He was also drawing a salary of Rs. 1,000 from the Union Life Assurance Co. Ltd., is its Managing Director. The Insurance Company and its branches had a current account with the Exchange Bank and had advanced to the latter six to seven lakhs of rupees as “call deposits”. The appellant was also connected with Messrs L. A,

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Stronach Ltd., Advertising Agents, which had been given overdraft facilities by the Exchange Bank. The appellant was also getting Rs. 2,000 per month as salary from the aforesaid Advertising Agents. The appellant and his wife were the principal shareholders in Akhaney & Sons Ltd., who were the Secretaries and Treasurers of the Indian Overseas Airlines. The Exchange Bank had advanced to the aforesaid Indian Overseas Airlines a loan of one crore and ten lakhs of rupees and Messrs Akhaney & Sons Ltd. aforesaid were getting a remuneration of Rs. 2,500 per month from the Indian Overseas Airlines Ltd. It would thus appear that the appellant along with his wife in one way or another was getting about Rs. 8,000 per mensem as remuneration from the different companies referred to above which were closely associated with one another from the financial point of view and that the, appellant was the chief person concerned with them and the connecting link between them. It was naturally his interest to see that the Exchange Bank continued its existence as long as could be arranged even by borrowing large sums of money when there was already a run on the bank. It is in the background of all these facts and circumstances that the appellant’sacts of commission and omission had to be judged. The other four witnesses, P.Ws. 5 to 8 are more or less formal witnesses in the sense that they have proved certain documents and letters which need not be noticed. The evidence of P.W. 2 had to be set aside as he was not available for cross-examination after charge, being out of the country.

The appellant’s defence is disclosed in a long written statement running into twenty paragraphs and seven closely typed pages submitted on the 3rd October 1952. Shortly stated, it is to the effect that the charge framed against him is bad in law and extremely vague; that the vagueness of the charge had “considerably handicapped” his defence, that the prosecution had not been fair in that it had not exa- mined the first informant, M. N. Raiji, that if he had been examined ‘by the prosecution, the appellant would have shown from the records in his possession

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that the Co-operative Bank had not suffered any loss and that the Bank in the hands of the Liquidator had more than sufficient funds to pay the dues of the former; that the prosecution bad not been launched with the sanction of the Company Judge who was in seisin of the liquidation proceedings in respect of the Exchange Bank and that therefore the provisions of sections 179 and 237 of the Indian Companies Act had not been complied with; that the securities in question had not been entrusted to the appellant but to the Exchange Bank,’ if at all there was any entrustment, and that as a matter of fact and law, the Ex- change Bank had not been entrusted with the securities, that the Exchange Bank “Court legally deal with the securities in any manner it liked”, as provided in the documents, Exs. E, F and G, between the two banks; that the sub-pledging of the securities with the Canara Bank or with Messrs Merwanji Bomanji Dalal was “perfectly. within the four corners of the law”, and that the essential ingredients of an offence under section 409, Indian Penal Code had not been made out. Grievance was also sought to be made of the fact that Inspector Milburn who had investigated the case had not been called as a. prosecution witness, with the result that the appellant had been deprived of the right of challenging the prosecution evidence with reference to the police diary. The learned Magistrate after a very fair and full examination of the evidence in the case and the points raised by the appellant in his defence came to the conclusion that the appellant was guilty of the offence of criminal breach of trust under section 409, Indian Penal Code and passed a lenient sentence, as stated above, *in view of the, consideration that “not a pie went to the pocket of the accused”, and that “the accused had not taken up any dishonest defence”. The learned Magistrate held that the charge as framed was not vague in view of the provisions of section 222, Criminal Procedure Code, with special reference to the terms of sub-section (2) of that section. On the question of the non-examination of the first informant, M. N. Raiji, and of the investigating police officer,

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the learned Magistrate observed that they were formal witnesses inasmuch as the facts of the case were not in dispute. Furthermore, the court observed that if the accused or his lawyer who defended him at the later stage of the prosecution, had applied to the’ court for their being examined, they could have been called as witnesses and subjected to cross-examination by the accused. But no such, application had been made. As regards want of sanction of the Company Judge, he held that section 179 of the lndian Companies Act had no application to the facts of the present case, as it was not a prosecution under the Companies Act and that therefore no such sanction as is contemplated by that section was necessary. Dealing with the appellant’s contention that there was no entrustment within the meaning of section 405, Indian Penal Code the learned Magistrate observed that the accused held delegated powers from the Board of Directors and he held the property in trust on behalf of the Directors of the Exchange Bank. He further held that the contract of pledge dated the 14th May 1948 between the two banks did not vest any right in the Exchange Bank absolutely to deal with the securities and that at any rate, the Exchange Bank could not deal with the securities so long as the Cooperative Bank had not taken an overdraft from the former. In dealing with the question whether the appellant had dealt with the securities dishonestly, he held that in all the circumstances of the case there was no doubt that wrongful loss was caused to the Co-operative Bank and wrongful gain not to the accused personally but to the Exchange Bank which he represented during the transactions in question.

On appeal to the Bombay High Court, a Division Bench of that court dismissed the appeal. substantially agreeing with the findings of the trial court. Dealing with a new point raised before the appeal court, namely, that the appellant was under a mistake of fact or law as to the indebtedness of the Cooperative Bank to the Exchange Bank or as to its powers to deal with the security, the High Court held 494

that there was no possibility of the appellant having made any mistake of fact in good faith. The court also pointed out that the appellant himself had not raised this plea of mistake either about the facts of the case or about any doubtful question of law. The court also pointed out the declarations made by the appellant on behalf of the Exchange Bank that the securities belonged absolutely to the bank and represented its investments-statements which he knew were false. While dealing with the appeal on the question of sentence, the High Court pointed out that there was good evidence to support the inference that the appellant had been actuated by motives of personal benefit also. In that view of the matter the High Court maintained the conviction and the sentence passed by the trial Magistrate. The appellant then moved the High Court for a certificate that the case was a fit one for appeal to this Court. The cer- tificate was refused by that court. Thereafter the. appellant moved this Court and obtained special leave to appeal.

In support of the appeal the learned counsel for the appellant has raised a number of questions of law and at the forefront of his argument contended that both in law and on a proper construction of the contract between the two banks the appellant was fully entitled to pledge the securities as long as the overdraft agreement subsisted, irrespective of whether or not there was an actual overdraft by the Co- operative Bank on the date of the pledge, that is to say, on the 28th February 1949.

Examining the position with reference to the contract between the two banks, we find that Exhibits E, F and G, all dated the 14th May 1948, are parts of the same transaction and evidence the terms of the contract between them. Ex. E is a promissory note executed by the Co-operative Bank in favour of the Exchange Bank for the sum of Rs. 66,150 with interest at three per cent. per annum with half yearly rests. Ex. F is a letter addressed by the Cooperative Bank to the Exchange Bank enclosing Ex. E, and Ex. G is the bond pledging all marketable

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securities and goods to the Exchange Bank in consideration of its promise to grant credit for overdraft limited to the amount aforesaid in favour of the Cooperative Bank from time to time with interest at three per cent. per annum as aforesaid. The significant portion of the bond is in these terms:-

“……………………… and we agree and undertake that in the event of our failure to maintain the margin on the said movable property marketable securities and goods in the manner hereinafter provided or failing repayment on demand to you by us of the amount of such advance or credit with interest cost charges and expenses as aforesaid you shall be entitled, but not bound, to sell or otherwise dispose of all or any of the said movable property marketable securities and goods by public auction or private contract in such manner and upon such terms and subject to such conditions as you may think fit without any reference to us or obtaining our consent, and the proceeds of such sale or disposal shall be applied first in payment of all costs charges and expenses of and incident to such sale or disposal and the enforcement of the -pledge and charge in your favour hereby created, secondly in repaying the amount of such advance or credit with interest as aforesaid and all costs charges and expenses incurred -by you in relation thereto not otherwise met including loss in exchange (if any) and all other debts and monies however due to you by us and lastly in payment to us of the surplus if any thereafter remaining, declaring as it is hereby expressly provided agreed and declared that this shall be continuing security to cover the amount of any advance or credit which you have allowed to us Or may from time to time allow us with interest costs, charges and expenses and all other debts and monies due as aforesaid…………….. “

Reading Exhibits E, F and G together, it is clear that the securities of the face value of Rs. 75,000 were pledged to the Exchange Bank as security for overdraft up to the limit of Rs. 66,150 for which the Cooperative Bank had given the promissory note to the Exchange Bank. It was further stipulated that in

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the event of the pledgor making a default in payment on demand of the amount advanced by way of overdraft with outstanding interest it may be realised by the Exchange Bank by sale of those securities and after -satisfying the pledgee’s dues against the pledgor, if there -was any outstanding amount the surplus of the sale proceeds shall be paid back to the pledgor. Thus it is clear that according to the terms of the contract the Exchange Bank was not entitled, as contended on behalf of the appellant, to sell the securities even though there may not have been any outstanding dues from the Co-operative Bank. The securities were to be kept by the Exchange Bank charged with the payment of such amount as may from time to time have been advanced or be advanced under the overdraft arrangement. But that charge was not an absolute one without reference to the state of accounts between the two banks; in other words, there would be a charge only when there was an adverse balance against the Co-operative Bank. We know that at all material times the Co-operative Bank had not drawn any sum from the Exchange Bank in pursuance of the agreement referred to above. The right of the Exchange Bank to deal with the securities under the agreement would arise only on the happening of certain events, namely, that the pledgor either had failed to maintain the proper margin or had made a default in repayment of the outstanding amount on demand by the Exchange Bank. So long as those contingencies did not arise,-and it is nobody’s case that any of those contingencies had arisen,–the pledgee bank had no right to deal with the securities by way of pledge, sub-pledge or assignment. In this connection our attention was invited to the provisions of section 179 of the Indian Contract Act in support of the contention that as the securities had been agreed between the two banks to be a cover for overdraft not exceeding Rs. 66,150, up to that amount the pledgee bank bad an interest in those securities which it could have dealt with. It was further argued that as there was nothing to show that the appellant had dealt with the securities for 497

a larger amount than that, he could not be said to have contravened the terms of the contract. In our opinion, there is no substance in-this contention. Section 179 predicates that the pledgor has a limited interest which he can deal with and his transaction to that extent would be valid. If the Co-operative Bank had as a matter of fact operated upon the overdraft account and bad drawn any sum with in the limit aforesaid, the Exchange Bank would have an interest pro tanto in those securities and might then have been entitled to pledge or sub-pledge the securities with a third party. But so long as there was no overdraft by the pledgor, the pledgee bad no such interest as it could in-its turn pledge or sub-pledge to a third party. Furthermore, it is clear from the narrative of events given above that the appellant dealt with the securities with third parties on the footing, after an express declaration had been made by him, that those securities were the absolute property of the Exchange Bank. We are not here concerned with -the question of the extent of interest acquired by such third party. We are only concerned with determining the legal position as between the two banks the Exchange Bank being represented by its Managing Director, the appellant. Hence there is no difficulty in holding that on the terms of the contract between the two banks the appellant was not entitled to transfer any interest in those securities and if be did so he did it in contravention of the terms -of the contract. We will now deal with the legal position, apart from the terms of the contract. On the facts stated above the Exchange Bank had become the bailee in respect of the securities. The securities had been delivered by the Co- operative Bank to the Exchange Bank for the express purpose, as disclosed in the contract set out above, that they shall be disposed of in ,accordance with the terms contained in Exhibit G set out above. By the very fact of the delivery of the securities to the bailee the latter became a trustee in terms of the contract, not for all purposes, but only for the, limited purpose indicated by the agreement 498

between the parties. The pledgor has in the present case only transferred his possession of the property to the pledgee who has a special interest in the property of enforcing his charge for payment of an overdraft, if any, whereas the property continues to be owned by the pledgor. The special interest of the pledgee comes to an end as soon as the debt for which it was pledged is discharged. It is open to the pledgor to redeem the pledge by full payment of the amount for which -the pledge had been made at any time if there is no fixed period for redemption, or at any time after the date fixed and such a right of redemption continues until the thing pledged is lawfully sold. Hence the Co-operative Bank in this case could have asked for a return of the securities at any time, because there never was any overdraft. As the pledge had been terminated neither by redemption,, nor by a lawful sale on the happening of such contingencies as the parties contemplated in their agreement or the law allowed, the securities continued to be the property of the Co-operative Bank and the Exchange Bank, or the appellant as its Managing Director., bad no right to deal with them.

It was next contended, alternatively, that assuming that the Exchange Bank had dealt with the securities in contravention of the terms of the agreement, the appellant had, as representing the bank, only committed a breach of contract, the remedy for which was a suit for damages and not a criminal prosecution. This argument assumes that the same set of facts cannot give rise both to a civil liability and a criminal prosecution. It is manifest that such an argument in its bald form cannot be acceptable. If there is no mens rea, or if the other essential ingredients of an offence are lacking, the same facts may not sustain a criminal prosecution, though a civil action may lie. We have therefore to examine whether or not there was mens rea in this case or whether the necessary element of a criminal. offence have been made out.

It has been contended that no offence under section 409, Indian Penal Code has been brought home to the appellant for the reasons, (1) that there

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was no entrustment, (2) that there was no mens rea, and (3) that there was no dishonesty on the part of the appellant. For an offence under section 409, Indian Penal Code, the first essential ingredient to be proved is that. the property was entrusted. It has been argued that in this case there was no such entrustment as is contemplated by that section; and that the securities were pledged with the Exchange Bank by -the Co-operative Bank which was in the position of a debtor to the former. ‘The contention is that the parties never contemplated the creation of a trust in the strict sense of the term. But when section 405 which defines “criminal breach of trust” speaks of a person being in any manner entrusted with property, it does not contemplate the creation of a trust- with all the technicalities of the law of trust. It contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain event. The person who transfers,, possession of the property to the second party still remains the legal owner of the property and the person in whose favour possession is so transferred has only the custody of the property to be kept or disposed of by him for the benefit of the other party, the person so put in possession only obtaining a special interest by way of a claim for money advanced or spent upon the safe keeping of the thing or such other incidental expenses as may have been incurred by him. In the present case the Co-operative Bank entrusted the Exchange Bank with the securities for the purpose of keeping them as a security for the overdrafts if and when taken by the former. In law those securities continued to be the property of the Co-operative Bank and as it never borrowed any money from the Exchange Bank, the latter had no interest in those,securities which it could transfer in any way to a third party so far as the two banks are concerned. The entrustment was to the Exchange Bank itself But it being a non-natural person, its business had to be transacted by someone who was authorised 500

to do so on its behalf The appellant held the power of attorney on behalf of the directors of the bank to transact business on behalf of the bank. In that capacity the appellant had-dominion over the securities. Hence the appellant can be said either to have been entrusted with the property in a derivative ‘sense or to have dominion over the securities as a banker-, and thus in either case, the first essential condition for the application of section 409, Indian Penal Code is fulfilled.

On the question of mens rea, it has to be determined whether or not the appellant dishonestly disposed of those securities in violation of any of the terms of the agreement aforesaid. As already indicated, the appellant did dispose of these securities in violation of the terms of the contract between the two banks. But still the question remains whether he did so dishonestly; in other words, whether when disposing of those securities the appellant had the intention of causing wrongful gain to the Exchange Bank or wrongful loss to the Co-operative Bank. In our opinion, he intended both and, as. a matter of fact, he caused wrongful loss to the pledgor bank and wrongful gain to the pledgee bank. ‘The Exchange Bank raised money on those securities which it was not entitled to do and the Co- operative Bank was deprived of those securities, even though not for all times. It is settled law that a deprivation even for a, short period is within the meaning of the expression. If he disposed of those securities with the intention of causing wrongful loss to the one and wrongful gain to the other, there can be no question but that the ap- pellant had the necessary mens rea.

It was next argued that-assuming that the essential ingredients of an offence under section 409, Indian Penal Code had been made out, the appellant may have made a mistake of fact in assuming that the Co-operative Bank was indebted to the Exchange Bank or may have made a mistake of law in mistakenly believing that the Exchange Bank had the right as the pledgee to sub-pledge those securities for raising money for its own purposes. We know as a fact that 501

the Co-operative Bank had not taken any overdraft from the Exchange Bank. But it was argued that it had not been proved that the appellant had that knowledge. The appellant in his long written statement has not tried to take shelter behind any such mistake. He was in full control of the bank accounts and as pointed out by the courts below, it is impossible to believe that in the circumstances in which the bank had found itself and when the appellant was hard put to it to collect all the bank’s resources to stave off the severe crisis through which it was passing, the appellant would not have known the fact that the Co-operative Bank did not owe his bank any money by way of overdraft. Hence, in our opinion, there is no room for the supposition that the appellant was not aware of the true state of accounts bet- ween the two banks. But then it was argued that the appellant may have made a mistake of law in thinking that he was justified by law in dealing with those securities. The attempt is to bring the case within one of the general exceptions contained in Chapter IV of the Indian Penal Code and set out in section 79 in these terms–

“Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it”. In considering a matter of this-kind the attitude of the accused is an important consideration. We note that here the appellant made no attempt in the trial court to set up such a defence. If he had ever said that he made a mistake of fact after exercising due care and caution that there was an overdraft against the Co-operative Bank in favour of the Exchange Bank, he may have been able to take advantage of the exception. But as in this case there was no mistake of fact and as the court was in a position to find that the appellant must have known that there was no such overdraft, there is no room for the application of section 79 quoted above. The appellant cannot avail himself of the exception of section 79 simply by

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saying that he believed that in law he was entitled to deal with the securities as the property of the Exchange Bank, as he attempted to do in his written statement. If he had further proved that he believed in good faith that the Co- operative Bank was indebted to his bank, his belief that he was justified by law in dealing with the securities as the property of the bank may have helped to bring him within the exception. But as there was no mistake about the basic fact, the provisions of section 79, Indian Penal Code are not attracted to this case.

It now remains to deal with certain objections relating to the illegality or irregularity in the procedure followed in the trial of this case. It was argued that this prosecution was incompetent for the reason that no sanction of the Company Judge had been obtained under section 179 of the Indian Companies Act. The relevant portion of section 179 is as follows:-

“The official liquidator shall have power, with the sanction of the Court to do the following things:-

(a) to institute or defend any suit or prosecution, or other legal proceeding, civil or criminal, in the name and on behalf of the company;………………..”

In terms the section lays down the powers of the official liquidator. Such a liquidator has to function under the directions of the court which is in charge of the liquidation proceedings. One of his, powers is to institute prosecutions in the name and on behalf of the company under liquidation with the sanction of the court. This section does not purport to impose any limitations on the powers of a criminal court to entertain a criminal prosecution launched in the ordinary course under the provisions of the Code of Criminal Procedure. Where a prosecution has to be launched in the name of, or on behalf of, the company, it naturally becomes the concern of the Judge to see whether or not it was worthwhile to incur expenses on behalf of the company and therefore, the section requires the sanction of the Judge before -the liquidator can undertake the prosecution or defence in the name of and on behalf of the company. The

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present case is not a prosecution in the name or on behalf of the company; nor is the official liquidator interested in prosecuting the case. The prosecution was started on a charge-sheet submitted by the police, though the first information report had been lodged by an official under the official liquidator. This was not a prosecution initiated or instituted by the official liquidator. This is not a case which can come even by analogy within the rule laid down by the Federal Court in the case of Basdeo Agarwalla v. King-Emperor(1), that a prosecution launched without the previous sanction of the Government within the meaning of clause 16 of the Drugs Control Order, 1943, was completely null and void. In that case their Lordships of the Federal Court had to consider the effect of the following words of clause 16 aforesaid:

“No prosecution for any contravention of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government…….”.

It will be noticed that section 179 of the Companies Act does not contain any words similar in effect to those quoted above. Where the legislature intended to place a limitation on the powers of the court to -take cognisance of an offence unless certain conditions were fulfilled, like the provisions of sections 196 and 197, Criminal Procedure Code, it has used words such as these: “No court shall take cognisance There is nothing in section 179 of the Companies Act which can be construed as restricting the powers of the court to take cognisance of an offence or the powers of the police to initiate prosecution or even of a private citizen to move the machinery of the criminal courts to bring an offender like the appellant to justice. For a prosecution for breach of trust even by a director of a company no such condition precedent as the previous sanction of any authority is contemplated by law, unless it is a prosecution in the name and on behalf of the company by the official liquidator who has to incur expenses out of the funds of the company. Section 179 is an

(1) [1945] F.C.R. 93.

504

enabling provision to enable the liquidator to do certain things with the sanction of the court. It does not control the general law of the land.

It was next contended that the charge as framed by the trial court was illegal and vague and had caused material prejudice to the appellant. The charge as framed has already been set out. The learned trial magistrate had stated at the end that a detailed charge was to be separately framed. But no such charge is before us and the appeal has proceeded on the assumption that no such detailed charge was as a matter of fact framed by the trial court. The question therefore is whether the charge, such as it is, complies with the requirements of the law. It has been argued on behalf of the appellant that the charge is materially defective in so far as the nature of the breach of trust, the facts constituting the breach, the exact date and manner of the breach have not been set out. The charge as framed fulfils the requirements of section 221, Criminal Procedure Code, because it has mentioned the name of the offence, namely, criminal breach of trust and specified section 409, Indian Penal Code, which impliedly gives notice to the accused of every legal condition required by law to be fulfilled in order to constitute the offence of criminal breach of trust. It has also fulfilled the requirements of section 222(1) of the Code in so far as it has specified the securities in respect of which and the Co-operative Bank against which a criminal breach of trust had been committed. Those particulars, in our opinion, were sufficient to give the accused notice of the matter with which he was charged. The trial court has made reference to the provisions of sub-section (2) of section 222. But it was in error in relying upon those provisions which relate to the offence of criminal breach of trust or dishonest misappropriation of money, which was not the present case. It is true that the manner of the commission of the offence as required by section 223 of the Code has not been set out. But that has to be set out only when the nature of the case is such that the particulars required by sections 221 and 222 had not given the accused suffi-

505

cient notice of the matter with which he is charged. In our opinion, though the charge could have been more detailed as was intended by the learned Magistrate, as framed, it gives the accused sufficient notice of the nature of the offence alleged against him. Even assuming that there were certain omissions in the charge, they cannot be regarded as material unless in terms of section 225 of the Code it is shown by the accused that he had in fact been misled by such omission or that there had been a failure of justice as a result of such error or omission. ‘The illustrations under that section show that each case has got to be judged on its own particular facts and there cannot be any general presumption that every error or omission in a charge has materially affected a trial or occasioned a failure of justice. In this case from the long written statement filed on behalf of the appellant it is clear that he was aware of the gravamen of the charge against him and that he tried to meet it in all its bearings. We are not therefore impressed by, the argument advanced on his behalf that the omissions in the charge are material and that the case should be tried over again on a fresh charge. The learned Judges of the High Court constituting the Division Bench which heard the appeal have written separate but concurring judgments, but they did not notice any argument, having been advanced before them on the question of the illegality or irregularity in the charge. That also would show that the appellant did not make it a grievance at the time of the argument of the appeal, though a ground had been taken in the memorandum of appeal that the charge as framed was vague and defective and as such bad in law. In our opinion, this is not a case in which it can be said that the omission in the charge has materially affected the trial of the case or prejudiced the appellant in his defence or has occasioned a failure of justice.

As all the grounds raised in support of the appeal fail, it is accordingly dismissed.

506

 

JUDGMENT

Dharmadhikari, J.

1. “Frailty thy name is woman”, that is how in one of his plays Shakespeare described one of the female characters in his play. This description is more and more in evidence particularly in rural Indian society where married woman, who are unable to muster courage to fight against cruelty and harassment meted out to them by their spouses and family members, find no escape other than ending their own life.

2. The deceased Krishna Kumari, second daughter of PW1 was married to Yadla Srinivasa Rao (hereinafter referred to as accused No. 1), on 26.6.1988. Accused No. 1 was employed as Branch Post Master in the village where the spouses lived jointly with the parents of accused No.

1.

3. At the time of marriage father of the deceased, who was a teacher, gave a cash dowry of Rupees fifteen thousand and jewels wroth fifteen thousand besides gift of five acres of land and a house site in the course of marriage ritual described as “Pasupukumkuma.” It is explained that this gift of land was in the nature of ‘Stridhana’ given to the bride by the father for her maintenance.

4. After three or four months of the marriage accused No. 1, husband of the deceased started demanding from the deceased execution of a deed in his favour of the land and house site gifted to her. Refusal on the part of the deceased to meet the demand was the cause of her continuous harassment. Taking advantage of his position as the Post Master in the village, accused No. 1 never delivered mail sent to the deceased by her father and her sister Nagamani. Her younger sister after passing tenth class examination had to appear for Polytechnic Entrance Test. As a part of harassment of the deceased, accused No. 1 did not deliver the Entrance Card received from Kakatiya University addressed to the younger sister of the deceased which resulted in the former losing the admission to the test.

5. The deceased somebody was able to lay her hand on the letters addressed to her and which had been concealed by accused No. 1. On finding those letters, she handed over the same to her father. This incident led to extreme point of harassment. Accused No. 1 and his parents, accused Nos. 2-3, drove the deceased out from their house with stern warning to her to restore those letters. This incident of cruelty was so grave and unbearable that she committed suicide by consuming a poisonous insecticide Endo-Sulphan on 22.10.1989, PW4, who had witnessed the incident of the deceased having been driven out of the house the previous day, also saw accused No. 1 taking deceased to the hospital at Madhira. PW4 informed about it to father (PW1) of the deceased who rushed to the house of the accused to find Krishna Kumari, dead. The father then lodged a First Information Report, Ex.P1 within eight hours on the same day.

6. All the three accused were charged in Session Case No. 157 of 1999 by the Court of Assistant Sessions Judge, Nuzwid for offence of dowry death under Section 304B, IPC and in the alternative under Section 498A, IPC for cruelty and harassment of such magnitude as to drive the deceased to commit suicide. The prosecution examined the parents of the deceased of PW 1-2, PW 3-4 were examined who had seen the deceased being driven out of the house and taken back only on their persuation.

7. The trial court by judgment dated 19.8.1991 accepted the evidence led by the prosecution of alleged cruel treatment and harassment of the deceased which drove her to commit suicide. It, however, held that on the evidence only reference under Section 498A, IPC is made out. It acquitted them of the offence under Section 304B, IPC. The three accused on their conviction for offence under Section 498A were sentenced to rigorous imprisonment for two years and a fine of Rs. 500/- each. In default of payment of fine, they were sentenced to two months simple imprisonment each.

8. The appellants i.e. parents of the deceased filed Criminal Revision No. 564/91 in the High Court of Andhra Pradesh against the acquittal of the accused under Section 304B, IPC. The accused preferred Criminal Appeal No. 1291/99 before the High Court of Andhra Pradesh assailing their conviction and sentences.

9. The learned Single Judge of the High Court of Andhra Pradesh decided the revision preferred by the parents of the deceased and the appeal preferred by the accused by a common Judgment dated 24.8.1994 which is the subject matter of these two separate criminal appeals preferred by the parents of the deceased and the State of Andhra Pradesh.

10. The learned Single Judge of the High Court of Andhra Pradesh dismissed the Criminal Revision filed by the parents of the deceased and confirmed the verdict of the trial court that the accused are liable to conviction and sentences only under Section 498A, IPC and not under Section 304B, IPC.

11. By the same common judgment the High Court allowed the appeal preferred by accused Nos. 2-3 (Parents of accused No. 1) and acquitted them of the alleged offences.

12. Against the common judgment of the High Court, State of Andhra Pradesh has preferred Criminal Appeal Nos. 1458-59 of 1995 challenging the acquittal of accused Nos. 2-3 and the parents of the deceased have preferred connected Criminal Appeal No. 1457 of 1995 seeking conviction of all the accused under Section 304B of the IPC.

13. The High Court in its common judgment passed in Criminal Appeal and Criminal Revision before it after appreciating the evidence led against accused Nos. 2-3, has found that the allegation against them of their participation with accused No. 1 in driving out the deceased from their house was for the first time made by PW1-father of the deceased only in his deposition in the Court. At no earlier point of time either in the first information report Ex.P1 or in the statements made under Section 161 of Cr.P.C. to the police, such allegation was made against accused No. 2 and accused No. 3. Apart from the oral testimony of PW1 (the father of the deceased) there is no other evidence on record to prove that the two accused Nos. 2-3 joined accused No. 1 in harassing or cruelly treating the deceased. On appreciation of the evidence the conclusion drawn by the High Court in favour of accused No. 2 and accused No. 3 is reasonable and does not justify interference by us in their acquittal. Consequently, we uphold the acquittal of accused Nos. 2-3 and dismiss the two appeals preferred by the State of Andhra Pradesh which are filed to seek their conviction.

14. We now take up for consideration Criminal Appeal No. 1457 of 1995, preferred by the parents of the deceased seeking conviction of accused No. 1 for offence under Section 304B of the Indian Penal Code. In its common Judgment after appreciating the evidence on record, the conclusion reached by the High Court that the accused No. 1 cannot be convicted under Section 304B, IPC appears to be legally sound. There is no evidence against accused No. 1 that at the time of marriage there was any demand or settlement for giving dowry in cash or by way of transfer of property. The father of the deceased PW1 has not stated that cash, ornaments and the land were given at the time of marriage pursuant to any demand of dowry by the parents of the husband. He merely states that according to the custom of the community declaration was made of gift of five acres of land to the deceased as he “Stridhana” called in the community as pasupukumkuma. As promised and declared in the ritual at the time of marriage the land was transferred in the name of the wife. The couple lived happily thereafter. It is only 2-3 months thereafter that the husband started harassing the wife to force her to transfer the land to him This harassment or cruel treatment to pressurize her to transfer the land cannot be said to be ‘in connection with any alleged dowry demand’. For the purposes of Section 304B, IPC the legislature has borrowed the definition of ‘dowry’ from Section 2 of the Dowry Prohibition Act of 1961. The relevant provisions of the Penal Code, Dowry Prohibition Act and Evidence Act are quoted hereunder:

304-B Dowry death – (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

“Explanation – For the purposes of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

Section 2 of the Dowry Prohibition Act, 1951 defines “dowry” as under:-

2. Definition of “dowry” – In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly -

(a) by one party to a marriage to the other party to the marriage, or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person.

At or before or any time after the marriage in connection with the marriage of said parties, but does not include Dower or Mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation I – For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.

Explanation II – The expression ‘valuable security’ has the same meaning as in Section 30 of the Indian Penal Code.

Section 113B of the Evidence Act raises a presumption against the accused and reads:-

113-B Presumption as to dowry death – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall be presume that such person had caused the dowry death.

Explanation – For the purpose of this section, “dowry death” shall have the same meaning as in Section 304B of the Indian Penal Code.”

15. The legal position firmly established is that ‘suicidal death’ of a married woman within seven years of her marriage is covered by the expression “death of a woman is caused ….. or occurs otherwise than under normal circumstances” as used in Section 304B of the Indian Penal Code. See Satvir Singh v. State of Punjab .

16. The evidence which has been found acceptable by the courts below against accused No. 1 is that the cruel treatment and harassment of the deceased by him led her to commit suicide which was a death “otherwise than under normal circumstances”. To attract the provisions of Section 304B IPC, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment ‘in connection with the demand for dowry’. There is no evidence on record to show that the land was demanded as a dowry. It was given by the father to the deceased in marriage ritual as pasupukumuma. The harassment or cruelty meted out to the deceased by the husband after the marriage to force her to transfer the land in his name was ‘not in connection with any demand for dowry’. One of the main ingredients of the offence of “demand of dowry” being absent in this case, the High Court cannot be said to have committed any error in acquitting accused No. 1 for offence under Section 304B, IPC.

17. We, however, find that the same evidence on record which was held reliable by convict accused No. 1 for offence of ‘cruelty’ under Section 498A, IPC, clearly makes out a case for his conviction for offence of abetting suicide under Section 306, IPC read with Section 113A of the Evidence Act. Section 498A (SIC) cruelty by husband to wife as a punishable offence The word “cruelty” is defined in the Explanation appended to the said Section. Section 498A with Explanation thereunder reads thus:

Section 498A: “Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to find.

Explanation – For the purpose of this section, “cruelty” means -

(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or

(b) Harassment of the woman where such harassment is with a view to coercing her to any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

(underlining for emphasis)

18. Clause (a) of the Explanation under Section 498A, IPC defines cruelty to mean a ‘wilful conduct of the husband of such nature as is likely to drive the women to commit suicide.’ In the instant case, the accused pressurised and harassed the deceased to part with the land received by her from her father as “Stridhana.” As a method adopted for harassment the Postal Mail of her relatives sent to her was suppressed by the husband who was in a position to do so being a Branch Post Master in the village. When the letters were discovered by the wife and she handed them over to her father (PW1) she was driven out of the house. This cruel conduct of the husband led the wife to commit suicide. The trial court and the High Court were, therefore, perfectly justified on this evidence to hold accused No. 1 guilty of the offence of ‘cruelty’ under Section 498A. As a result of such cruel treatment the wife was driven to commit suicide. Thus offence of abetment of committing suicide punishable under Section 306, IPC is clearly made out against accused No. 1 and for that purpose presumption under Section 113A of the Evidence Act can be raised against him. Section 306, IPC reads thus:

“306. Abetment of suicide – If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

113A. Presumption as to abetment of suicide by a married woman – When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within 6 period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation – For the purposes of this section, “cruelty; shall have the same meaning as in Section 498A of the Indian Penal Code.”

(underlining for emphasis)

19. Both the Courts below have found the husband guilty of cruel treatment of his wife and as a result the wife committed suicide within seven years of their marriage. On such evidence the presumption which arises under Section 113A of the Evidence Act is that the husband abetted the suicide. The word “cruelty” as mentioned in the Explanation below Section 113A of the Evidence act has been given the same meaning as contained in the Explanation below Section 498A, IPC. On the fact found, ‘the wilful’ conduct of the husband in forcing the deceased to part with her land which she had received in marriage as “stridhana” and for that purpose concealing her postal mail was so cruel that she was driven to commit suicide. A case of conviction and sentence of accused No. 1 under Section 306, IPC has thus clearly been made out even though his acquittal for commission of the offence of ‘dowry death’ punishable under Section 304B, IPC is not found liable to be disturbed.

20. The learned counsel for the accused has argued that in the absence of a charge framed against the accused under Section 306 IPC, the accused cannot be convicted under the said Section.

21. From the record we find that although a charge specifically under Section 306 IPC was not framed but all facts and ingredients constituting that offence were mentioned in the Statement of Charges framed under Section 498A and Section 304B of IPC. The statement of charge framed by the trial courts reads thus:

“That on or about the 22nd day of October, 1989, at your house at Tunikipadu of Gampalagudem Mandal, Yedla Krishna Kumari, wife of A-1 of you and daughter-in-law of A2 and A-3 among you, committed suicide by consuming poison, and that you all subjected her to such cruelty and harassment as did drive her to commit suicide, with the object of extracting Ac.5-00 of land as dowry to A-1 and thereby committed an offence punishable under Section 304B of the Indian Penal Code and within the cognizance of this Court.

OR ALTERNATIVELY

That, prior to the 22nd day of October, 1989; at your house at Tunikipadu, you subjected Yedla Krishna Kumari, wife of A-1 among you and daughter-in-law of A-2 and A-3 among you, to such cruelty and harassment as did drive the said Krishna Kumari to commit suicide, and thereby committed an offence punishable under Section 498A of the Indian Penal Code and within the cognizance of this Court.”

(underlining for emphasis)

22. Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the Alternative Section 498A, IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306, IPC with 498A, IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on fats found in evidence, he could have been charged for such offence. Section 221 of Cr.P.C. needs reproduction:-

“221. Where it is doubtful what offence has been committed. – (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

23. The provision of Sub-section (2) of Section 221 read with Sub-section (1) of the said Section can be taken aid of in convicting and sentencing the accused No. 1 of offence of abetment of suicide under Section 306 of IPC along with or instead of Section 498A of IPC.

24. Section 215 allows criminal court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 of Cr.P.C. which reads:-

“215. Effect of errors – No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

25. As provided in Section 215 of Cr.P.C. omission to frame charge under Section 306 IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the trial court for framing charge under Section 306 IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306, IPC and a consequent failure of justice. The said fats found in evidence, which justify conviction of the appellant under Section 498A for cruel treatment of his wife, make out a case against him under Section 306 IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing “dowry death” under Section 304B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113A of the Evidence Act could also be raised against him on same fats constituting offence of cruelty under Section 498A, IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to me the charge under Section 498A, IPC.

26. It may be mentioned that against confirmation of his conviction by the High Court under Section 498A, IPC, the accused No. 1 has not preferred any special leave to appeal to this Court. The facts found-proved for his conviction and sentence under Section 498A, IPC, cannot now be questioned by the accused. Our conclusion, therefore, is that same facts and evidence on which accused No. 1 was charged under Section 498A and Section 304B, the accused can be convicted and sentenced under Section 306 IPC. We find no legal or procedural impediment in doing so.

27. The legislature has by amending the Penal Code and Evidence Act made Penal Law more strident for dealing with and punishing offences against married women. Such strident laws would have a deterrent effect on the offenders only if they are so stridently implemented by the law courts to achieve the legislative intent. On the facts found and the offence proved to have been committed leading to suicidal death of the wife, imprisonment of two years with fine of Rs. 500/- is too light a sentence. For offence under Section 306 IPC the sentence may extend to ten years. In this case the husband is found to have harassed his wife to such an extent as to drive her to commit suicide. Sentence of five years would, in our opinion, be a proper sentence for the crime with the amount of fine increased to Rs. 20,000/- to be paid as compensation to the parents of the deceased. On non-payment of fine the accused No. 1 shall suffer further sentence of one year.

28. We, thus, allow Criminal Appeal No. 1457 of 1995 preferred by the parents of the deceased. We maintain the conviction and sentence of accused No. 1 under Section 498A, IPC. The accused No. 1 is also convicted under Section 306, IPC and sentenced to five years rigorous imprisonment with a fine of Rs. 20,000/- to be paid as compensation to the parents of the deceased. In the event of non-payment of fine, accused No. 1 shall suffer imprisonment for a further period of one year. The sentences imposed under Section 498A, IPC and under Section 306, IPC shall run concurrently.

29. Connected Criminal Appeal Nos. 1458-59 of 1995 preferred by the State against acquittal of accused Nos. 2 & 3 are dismissed.

Kerala High Court

JUDGMENT

K.A. Mohamed Shafi, J.

1. The complainant-Food Inspector has preferred this appeal challenging the judgment of the Chief Judicial Magistrate, Thodupuzha dated 28-2-1994 in C.C. No. 57/ 1989 acquitting the accused.

2. Two accused persons, father and son were prosecuted for the offences punishable under Sections 2 (ia) (a), (f), (m) and 7 (i) read with Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act and Rule 5 appendix B, A. 18.06 of the Prevention of Food Adulteration Rules alleging that at 10.40 a.m. on 13-2-1987 they being the licensee and salesman of the shop conducted in door No. 17/3 of Kumaramangalam Panchayath exhibited for sale insect infested peas dhal unfit for human consumption and as such they committed the offences alleged against them.

3. That complaint preferred by the Food Inspector, Thodupuzha Circle, Idukki district was taken on file by the Court as C.C. 57/89 and proceeded with the trial of the case as in a warrant case instituted otherwise than on a police report and after examining some of the witnesses framed charge against the accused who are the respondents herein. Admittedly the respondents are father and son and while the. father was the licensee of the shop the son was salesman, the lower Court after trial found that the prosecution has not succeeded in establishing that the respondents have committed the offences alleged against them and therefore they were acquitted and set at liberty by the impugned judgment.

4. Even though the then Food Inspector who purchased peas dhal from the respondents for the purpose of sampling, sent the sample for analysis and filed the above complaint after receipt of the analysis report to the effect that the sample was insect infested and unfit for human consumption, was examined as PW1 before the lower Court prior to the framing of the charge against the respondr ts, he was not cross-examined at that stage and his cross-examination was deferred by the counsel for the respondents. But after the framing of charge PW 1 expired and the respondents had no opportunity to cross-examine him. Though the prosecution contended that eveni though PW 1 was not cross-examined, his evidence has to be considered by the trial Court along with the other evidence adduced by the prosecution to establish the guilt of the respondents, the lower Court held that since PW1 was not available for cross-examination by the accused in this case, his evidence cannot be relied upon. After eschewing the evidence of PW 1 the lower Court; found that the other evidence on record is insufficient to prove that the respondents have committed the offences alleged against them.

5. The case of the prosecution is that on 13-2-1987 at about 10.40 a.m. PW1 along with PW2. the Peon in his office after informing his identity purchased 750 gms. of peas dhal exhibited for sale from the shop of the respondents for the purpose of analysis by paying the price and sampled the same in accordance with law and sent for chemical analysis and after analysis PW5 the Public Analyst sent his report Ext. P9 to the effect that the sample did not conform to the standard prescribed for peas dhal under the provisions of the Prevention of Food Adulteration Act and it was insect infested and unfit for human consumption.

6. As already noted PW 1 the Food Inspector died after examination-in-chief and there was no opportunity to cross-examine him. PW2 who is the Peon in the office of PW1 has narrated in detail with regard to the purchase of peas dhal from the shop of the respondents for analysis, sampling etc. by PW1. PW3, the owner of the shop room in which the respondents were conducting the trade has also deposed about the purchase of the article for analysis, sampling etc. by PW 1. PW4 the successor-in-office of PW 1 has deposed in conformity with the evidence of PWs. 1 and 2 and the various documents produced in this case from his office are proved and marked through him. PW5 is the Public Analyst and PW6 is the District Food Inspector who is the local health authority in this case.

7. The Public Prosecutor vehemently argued that the evidence of PW1 along with the other evidence available on record in this case conclusively proved the offence alleged against the respondents and the lower Court is in manifest error in discarding the evidence of PW1 on the sole ground that there was no opportunity to the accused to cross-examine him. He argued that unlike in other cases generally in which the evidence of a witness who was not subjected for cross-examination, cannot be relied upon, in this case even though PW1 was available for cross-examination without subjecting him to cross-examination after his examination-in-chief, it was deferred by the respondents and unfortunately he expired before the respondents could get an opportunity to cross-examine him. Therefore, according to him since the failure of cross-examination of PW1 was due to his untimely demise prior to his cross-examination before the lower Court, his evidence is acceptable as the evidence of any other witnesses and the only question to be considered is regarding the veracity of his evidence.

8. In support of the contention that the evidence of a witness who died before cross-examination is admissible, the learned Public Prosecutor relied upon the decision in Ahmad Ali v. Joti Prasad AIR (31) 1944 All 188 (2): (1944 All LJ 182) wherein a Division Bench of the Allahabad High Court has observed as follows (at page 190 of AIR):

The plaintiffs had a commission issued to one Raj Bahadur Mathur, who went to the place and counted and measured every stump which he could find. They also produced a witness called Wazir Singh who was employed by them and who gave evidence about the number of trees which had been cut down by the defendants. Unfortunately this witness died before he could be cross-examined and it is urged on behalf of the defendants-appellants that his evidence is not admissible. There is certainly no provision in the Evidence Act that the evidence of a witness who has been examined in open Court upon oath shall be excluded because it has not been possible for the other party to cross-examine him the difference between rejecting evidence on the ground that it is legally inadmissible and ignoring it upon the ground that it should not be believed may often be of very little importance in practice but the distinction is important in principle because if the evidence is inadmissible the Court is not entitled to consider it at all whereas if it is admissible the Court must decide on the circumstances of each ease whether any weight should be attached to it. All relevant authority and also the provisions of the Evidence Act would support the proposition that the evidence of a witness in these circumstances is admissible and the Judge who is dealing with it must decide for himself whether he believes the facts stated or does not believe them. I hold therefore that the learned Judge was entitled in this case to take the evidence of Wazir Singh into consideration and that we are not entitled to ignore it although we may, if we choose, think that it is of little value.

9. He also relied upon another decision in Srikishun Jhunjhunwalla v. Emperor AIR (33) 1946 Patna 384 : (47 Cri LJ 614) wherein the Patna High Court has followed the above decision of the Allahabad High Court and held that where a witness dies after examination-in-chief and before cross-examination, his evidence is admissible but the degree of weight to be attached to it depends on the circumstances of the case.

10. The counsel for the respondents submitted that since PW 1 was not available and he could not be subjected to cross-examination, his evidence cannot be looked into for any purpose in this case. The proposition that unless a witness is subjected to cross-examination his evidence cannot be relied upon is well established. In the decision in Shaikh Shurfuraz Mollah v. Shaikh Dhunoo, (1871) 16 Weekly Reporter 257 it was observed as follows :

If a party wishes to give evidence in his own favour, of course it is in his power to come forward like any other witness and subject himself to examination andcross-examination in open Court; but until he has subjected himself to cross-examination, no statement which he may volunteer can be used as any evidence in support of his own case, unless the right, so to use it, has accrued from the deliberate act of his adversary. A party cannot himself determine that his own statement shall be used as evidence in his favour.

11. In the decision in Bhola Ram v. PeariDevi AIR 1962 Patna 168 a Division Bench of the Patna High Court has held that written statement filed by one of the defendants in a suit supporting the plaintiff is of no help to the plaintiff in the absence of his statement on oath on examination in Court.

12. In decision in Passang Lama v. State of Sikkim 1975 Cri LJ 1350 a single Judge of the Sikkim High Court has observed as follows at page 1354 :

Though the accused had wanted to cross-examine PWs.2 and 3 but they were not made available forcross-examination, as summons could not be served on them. Thus a valuable right of the accused as given in Section 256 has been denied to them. The fact that the accused had cross-examined PWs. 2 and 3 before the charge had been framed is no reason to deny the right of cross-examination of the said witnesses after fram-ing the charge. The accused was thus denied the right to cross-examine PW2 and PW3 and their evidence was no legal evidence and could not be relied upon.

13. The general proposition that the evidence of a witness who is not subjected to cross-examination cannot be looked into, cannot be disputed. But the question to be considered in this case is whether the evidence of PW1 who was examined in chief and was not available forcross-examination due to his death in the meanwhile, is admissible in evidence or not. The principles laid down in the decisions relied upon by the counsel for the appellant referred to above clearly establish that the evidence of a witness who could not be subjected to cross-examination due to his death before he could be cross-examined, is admissible in evidence, though the evidentiary value will depend upon the facts and circumstances of the case. Therefore, the lower Court is not at all justified in discarding the evidence of PW1 on the ground that he was not available for cross-examination and therefore, great prejudice will be caused to the respondents if his evidence is accepted.

14. As already noted, apart from PW1, PW2 the Peon in the office of PW1 who accompanied PW 1 at the time of purchase of the article for the purpose of analysis by PW 1 from the respondents, has given evidence corroborating the testimony of PW 1 with regard to the purchase of the article, sampling etc. PW3, who is the owner of the shop room in which the respondents had been conducting trade has also deposed about the purchase of peas dhal by PW1 from the respondents, sampling of the same etc. and the presence of himself and PW2 at that time. PW4, the succes-sor-in-office of PW1 and conversant with the signature of PW1 has given evidence with reference to the documents kept in his office and the documents are proved and marked through him in this case. The lower Court on the basis of the discrepancies in the evidence of PWs.2 and 3 to the effect that while PW2 deposed that himself and PW1 went to the shop of the respondents travelling in a bus, PW3 has deposed that they went there in a jeep; while PW2 deposed that the sampling in this case was done by PW 1, PW3 has deposed that the sampling was done by PW2 and while PWs. 1 and 3 deposed that even though PW 1 asked the persons gathered there to attest the mahazar etc. they did not oblige. PW3 has deposed that they did not ask anybody to do the same. It is pertinent to note that the purchase of the article by PW1 for the purpose of analysis from the shop of the respondents is not disputed by them. PW3 himself has deposed that he has seen PW1 purchasing the article from the shop of the respondents for the purpose of analysis, sampling etc. Therefore, the above discrepancies weighed with the lower Court in the evidence of PWs. 1 and 2 and that of PW3, are of no significance at all in this case and the rejection of the prosecution case on the ground of the above discrepancies in the evidence of PWs. 1 and 2 and that of PW3 cannot be justified.

15. In point No. 1 the lower Court has held that PW1 has purchased 750 gms. of peas dhal from the respondents for chemical examination on 13-2-1987 at 10.40 a.m. In point No. 2 the lower Court has held that on the basis of the evidence of PW5, the Public Analyst and his analysis report Ext.P9 that the peas dhal exhibited for sale in the shop of the respondents was unfit for human consumption due to insect infection. I find those findings arrived at by the lower Court are on proper appreciation of the evidence on record and the challenge against those findings made by the respondents are not at all sustainable.

16. The other ground on which the lower Court found that the prosecution case is not sustainable is want of a proper notice under Section 13(2) of the Prevention of Food Adulteration Act. Section 13(2) of the Act reads as follows :

13(2) On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

It is well settled that notice under Section 13(2) of the Act is mandatory and it is a statutory safeguard provided for the accused so that he will get an opportunity to get the second sample of the article kept with the Local (Health) Authority analysed by the Central Food Laboratory in order to disprove the prosecution case. In this case the prosecution has contended that PW6, the Local (Health) Authority has sent the statutory notice under Section 13 (2) of the Prevention of Food Adulteration Act along with the copy of the analysis report to the respondents and those notices were not accepted by the respondents and under those circumstances the postal authorities returned those notices to PW6 as unclaimed. Exts. PI3 and P14 are the covers with the notices sent by PW6 to the respondents which were returned by the postal authorities with the endorsement ‘unclaimed and returned to sender’.

17. The respondents have contended that they have sold their properties and shifted their residence to Cherupuzha in Kannur district on 12-9-1986 and they had no business and that they were not residing at Thaimattom, Kalloorkad in Kumaramangalam Panchayath during the relevant period as alleged by the prosecution. But as I have already noted, the evidence of PWs. 1, 2 and 3 establishes that the respondents have been conducting business at that time and PW 1 has purchased peas dhal from the shop of the respondents for analysis on 13-2-1987. Apart from the evidence of PW 3 that the respondents have been conducting trade in the shop room belonging to him during the relevant period, the prosecution has produced Exts. PI8 to P20 and examined PW 8 the Executive Officer of Kumaramangalam Panchayath to establish this fact. PW 8 has deposed that the shop room bearing No. IV/3 of Kumaramangalam Panchayath is owned by PW 3 and Exts. P18 and P19 are the two extracts of the registers maintained by the Panchayat evidencing issue of licence under the Prevention of Food Adulteration Act to the 2nd respondent for the period 1986-87 to 1987-88. He has also deposed that Ext. P20 is the letter sent by him to the Food Inspector noting the details of the licence to conduct the trade in building bearing door No. IV/3 of Kumaramangalam Panchayat. Therefore, the fact that the respondents had been conducting trade in that building is established with clinching evidence beyond any shadow of doubt.

18. It is also pertinent to note that the summons issued by the lower Court in the above case as well as the notices issued by this Court in this appeal to the respondents on the very same address given in Exts. P13 and P14 notices are personally served upon the respondents. Apart from the contentions raised by the respondents in this case, there is absolutely nothing on record to show that the respondents were not residing in the address mentioned in Exts. P13 and P14 during the relevant time when those notices were sent by PW 6 to the respondents nor to show that they had been residing at Cherupuzha in Kannur district during the relevant period. Therefore, the case of the prosecution that the respondents were residing at the place to which Exts. P13 and P14 were addressed by PW 6 to the respondents, has to be accepted and the contention of the respondents that they were not residing in that address and they had been residing at Cherupuzha in Kannur district during that period has to be rejected.

19. As already noted compliance of the provisions of Section 13(2) of the Prevention of Adulteration Act is mandatory and the non-compliance of the provisions will defeat the valuable right of the accused to get the second sample examined by the Central Food Laboratory. Therefore, the question to be considered in this case is whether there is proper compliance of the provisions of Section 13(2) of the Act by PW 6, the Local Health Authority. As already noted the notices along with the copy of the analysis report by the Public Analyst sent by PW 6 are returned as unclaimed and those covers with the enclosures are marked as Exts. PI 3 and P14.

20. The Public Prosecutor submitted that PW 6 has done everything within his powers to serve the notices under Section 13(2) of the Act upon the respondents by sending them through registered post in the correct address of the respondents and due to the evasive and dilatory tactics of the respondents those notices could not be served by the postman as they did not accept those notices even after intimation regarding those registered letters was given to the respondents. Therefore, according to him there is legal and proper compliance of Section 13(2) of the Act in this case.

21. The counsel for the respondents vehemently argued that there is no compliance of the mandatory provisions of Section 13(2) of the Prevention of Food Adulteration Act in this case since no notice as contemplated under that provision is served upon the respondents. He also argued that if, in fact, notices were served upon the respondents, they would have certainly taken steps to send the second sample to the Central Food Laboratory for analysis in order to disprove the analysis report filed by the Public Analyst in this case. Therefore, according to him, by the failure of service of the notice as contemplated under Section 13(2) of the Act a very valuable right available to the respondents as provided under that statute is denied to them and it will cause very great prejudice to the respondents in this case. It is true that non-compliance of the provisions of Section 13(2) of the Act will entail very grave prejudice to the accused and that fact alone will entitle them for acquittal in cases of this nature….

22. Once a notice is sent by registered post in the correct address no burden is cast upon the send or the postman to arrange that notice to be served upon the addressee. If a letter is posted prepaid and registered with acknowledgement due or otherwise to the correct address of the addressee and delivered to the post office, there is presumption under Section 27 of the General Clauses Act that the latter is delivered to the addressee. The postman has no authority nor is expected to detain the letter until the addressee chooses to receive the letter, when the postman’ is unable to deliver the letter on his first visit. The postman who gives intimation of the arrival off the letter to the addressee can keep the letter only for a reasonable time and thereafter he has to return the same to the send or. In this case the endorsement in Exts. P13 and P14 shows that in spite of the intimation the respondents did not take delivery of the letter and therefore, it is returned to PW 6, the send or as unclaimed. The prosecution has also produced Ext. P16 letter sent by the Superintendent of Post Offices, Idukki Division to PW 6 on 18-9-1987 stating that the addressees of Exts. P13 and P14 registered letters were out of station at the time of receipt of the registered letters at Kumara-mangalam Post Office and therefore, the articles were kept in deposit for seven days at the Post Office after giving information at the addressee’s house and returned after that period as the addressee did not claim the articles within that period with the remark ‘unclaimed’. Over and above the presumption of legality of the official act done by the postman in this case, Ext. P16 also establishes that in spite of the fact that intimation regarding the arrival of Exts. P13 and P14 letters was given at the house of the respondents, they did not claim the same from the Post Office for seven days and therefore, the letters were returned to PW 6 as unclaimed.

23. If the contention of the respondent that in order to comply with the requirement of Section 13(2) of the Act actual delivery of the notice or deliberate refusal to accept the same by the addressee is necessary, it will lead us to anomalous and very dangerous situations. A cunning and unscrupulous accused can effectively thwart the delivery of the notice to him by staying away from his house for some time knowing the arrival of the notice and get it returned to the sendor as unserved. Under such circumstances constructive notice should be imputed to the addressee. In this connection the decision of the Supreme Court in M/s. Madan & Co. v. Wazir Jaivir Chand AIR1989 SC 630 is very appropriate and to the point. Though in that case the apex Court was considering the validity of notice issued under Sections 11 and 12 of the J & K Houses and Shops Rent Control Act, to the tenant, the principles laid down in that decision are equally applicable to the above case coming under the Prevention of Food Adulteration Act since the notice contemplated under Sections 11 and 12 of the J & K Rent Control Act as well as Section 13(2) of the Prevention of Food Adulteration Act are the in-built safeguards provided in the statute by the legislature in favour of the tenant or the accused, as the case may be, with regard to the proceedings for eviction under the Rent Control Act or the prosecution lodged under the Prevention of Food Adulteration Act. The nature of service of notice and the correct view to be taken by the Court with regard to the service of notice are clearly and elaborately laid down in para 6 of the judgment by the apex Court. I think it is profitable to reproduce the same which is as follows :

We are of opinion that the conclusion arrived at by the Courts below is correct and should be upheld. It is true that the proviso to Clause (i) of Section 11(1) and the proviso to Section 12(3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can do to comply with this provision is to post a paid registered letter (acknowledgment due or otherwise) containing the tenant’s correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on and receipt by the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the where abouts of the addressee : he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee’s absence. His reponsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under O.V. of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him “without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as ‘not found’, ‘not in station’, ‘addressee has left’ and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee’s own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away from some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time untill he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the word ‘served’ as ‘sent by post’, correctly and properly addressed to the tenant and the word ‘receipt’ as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by the tenant.

24. In the above case which came up for consideration before the Supreme Court, the registered notice sent by the landlord calling upon the tenant to pay the arrears of rent and terminating the tenancy, was returned by the postal authorities with the endorsement ‘left without address, returned to sender,’. While considering the sufficiency of service of notice under Sections 11 and 12 of the J & K Houses and Shops Rent Control Act and the words ‘served’ and ‘receipt’ occurring in those provisions the apex Court has made the above observations. In that case the postman who tendered the notice to the tenant was examined. In this case before me the postman who attempted to serve Exts. P13 and P14 notices upon the respondents and made the endorsement in Exts. P13 and P14 to the effect ‘unclaimed, returned to sender’, is not examined. But the prosecution has produced Ext. P16 letter sent by the Superintendent of Post Offices, Idukki Division stating that detailed enquiries made in the case revealed that the addressee of the registered letters were out of station at the time of receipt of the registered letters at the Kumaramangalam Post Office and therefore the articles were kept in deposit for seven days at the Post Office after giving information at the addressees’ house and returned after the above period and as the addressees did not claim the articles within that period the remark ‘unclaimed’ was recorded. Therefore, even though the postman who attempted to serve Exts. P13 and P14 letters upon the respondents is not examined, the prosecution has adduced satisfactory evidence in this case to establish that the postman attempted to serve the notices upon the respondents and as they were out of station at that time, he left the intimation in their house and kept the registered letters for seven days and as the respondents did not take delivery of the registered letters within that time they were returned with the endorsement ‘unclaimed’ to PW 6, the sender. Hence adopting the more reasonable, effective, equitable and practical interpretation and reading the word ‘served’ as ‘sent by post’, correctly and properly addressed to the accused and the word ‘receipt’ as tender of the letter by the postal peon at the address mentioned in the letters as laid down by the Apex Court, it has to be held that there is proper service of notices under Section 13(2) of the Act on the respondents in this case. Therefore, the contention of the respondents that there was no proper notice under Section 13(2) of the Act and as such the entire prosecution is vitiated for non-compliance of that mandatory provision of the Act, is absolutely unsustainable. Consequently the finding of the lower Court to the effect that the prosecution has failed to comply with the requirement of Section 13(2) of the Act and the non-compliance of the provisions of Section 13(2) of the Act has prejudiced the respondents is unsustainable.

25. As it is found by the lower Court itself that PW. 1, the Food Inspector has purchased peas dhal exhibited for sale in the shop of the respondents for the purpose of analysis and on analysis it was found that the peas dhal did not conform to the standard prescribed under the Prevention of Food Adulteration Act and is unfit for human consumption as insect infested and this Court has found that the rejection of the evidence of PW 1 by the lower Court as well as the finding of the lower Court that there is violation of the mandatory provisions of Section 13(2) of the Act due to non-service of the notices with copy of the analysis report on the respondents, are not sustainable and the evidence of PW 1 is admissible in evidence and there is proper service of notice under Section 13(2) of the Act, the finding of the lower Court that the respondents are not guilty of the offences alleged against them and the order of acquittal are not sustainable. It is clear from the evidence on record that the prosecution has established beyond reasonable doubt that the respondents have committed the offences punishable under Sections 2(ia)(a)(f), (m) and 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and Rule 5 Appendix B, A. 18.06 of the Prevention of Food Adulteration Rules.

Hence in reversal of the finding of the lower Court that the respondents are not guilty, I find that the respondents are guilty of the offences punishable under Sections 2(ia)(a)(f), (m) and 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and Rule 5, Appendix B, A. 18.06 of the Prevention of Food Adulteration Rules and convict them and sentence them to undergo imprisonment for six months each and pay a fine of Rs. 1000/- each in default of payment to undergo imprisonment for one month each. Appeal is accordingly allowed.

 Supreme Court of India

HELD:1.1. The provision concerning the framing of a charge is to be found in Section 228 of Cr.P.C. This Section is however, connected with the previous section, i.e. Section 227 which is concerning `Discharge’. From Section 227 it is clear that while discharging an accused, the Judge concerned has to consider the record of the case and the documents placed therewith, and if he is so convinced after hearing both the parties that there is no sufficient ground to proceed against the accused, he shall discharge the accused, but he has to record his reasons for doing the same. Section 228 which deals with framing of the charge, begins with the words "If after such consideration". Thus, these words in Section 228 refer to the `consideration’ under Section 227 which has to be after taking into account the record of the case and the documents submitted therewith. These words provide an inter-connection between Sections 227 and 228. That being so, while Section 227 provides for recording the reasons for discharging an accused, although it is not so specifically stated in Section 228, it can certainly be said that when the charge under a particular section is dropped or diluted, (although the accused is not discharged), some minimum reasons in nutshell are expected to be recorded disclosing the consideration of the material on record. This is because the charge is to be framed `after such consideration’ and therefore, that consideration must be reflected in the order. [Paras 17, 18] [357-F-G; 358-G-H; 359-A-C]

1.2. A discharge order is passed on an application by the accused on which the accused and the prosecution are heard. At the stage of discharging an accused or framing of the charge, the victim does not participate in the proceeding. While framing the charge, the rights of the victim are also to be taken care of as also that of the accused. That responsibility lies on the shoulders of the Judge. Therefore, on the analogy of a discharge order, the Judge must give his reasons atleast in a nutshell, if he is dropping or diluting any charge, particularly a serious one as in the present case. It is also necessary for the reason that the order should inform the prosecution as to what went wrong with the investigation. Besides, if the matter is carried to the higher Court, it will be able to know as to why a charge was dropped or diluted. [Para 19] [359-D-F]

1.3. At the initial stage of the framing of a charge, if there is a strong suspicion/evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. Further, at the stage of the framing of the charge, the Judge is expected to sift the evidence for the limited purpose to decide if the facts emerging from the record and documents constitute the offence with which the accused is charged. This must be reflected in the order of the judge. Thus it cannot be disputed that in this process the minimum that is expected from the Judge is to look into the material placed before him and if he is of the view that no case was made out for framing of a charge, the order ought to be clear and self-explanatory with respect to the material placed before him. In the present case, all that the appellant stated in his judicial order was, that on consideration of the material available in the case diary, he had found that there was no sufficient material to frame the charge under Section 302 of IPC. This is nothing but a bald statement and was clearly against the statement of the injured eye witness, and supporting medical papers on record. The appellant has not even referred to the same. He has also not stated in his order as to why he was of the opinion that the material available in the case diary was insufficient. Such a bald order raises a serious doubt about the bona fides of the decision rendered by the Judge concerned. A young person had been killed. It was not a case of grave and sudden provocation. The material on record showed that there was an injured eye witness and there was the supporting medical report. The material on record could not be said to be self- contradictory or intrinsically unreliable. Thus, there was a prima facie case to proceed to frame the charge under Section 302 IPC. The reason given for dropping the charge under Section 302 was totally inadequate and untenable, and showed a non-application of mind by the appellant to the statements in the charge-sheet and the medical record. The order does not explain as to why a charge under Section 304 was being preferred to one under Section 302 IPC. In fact, since the material on record revealed a higher offence, it was expected of the appellant to frame the charge for more grievous offence and not to dilute the same. [Paras 20, 21 and 22] [359-G-H; 360-G-H; 361-A-G]

1.4. The impugned order of the High Court deciding Revision notes that the appellant had been functioning in the rank of the District Judge from August 1991 onwards, i.e. for nearly 5 years prior to his judicial order and further states that a Judicial Officer, before being posted as an Additional Session Judge, gets experience of taking the sessions cases as Assistant Session Judge. It cannot, therefore, be said that the appellant did not have requisite experience to pass a correct legal order under Section 228 of Cr.P.C. That apart, all that the impugned order in Revision did was to suggest to the High Court Administration, that if the appellant was not yet confirmed, his probation should wait and if he was already confirmed, his performance be verified before giving him the higher scale. Since the appellant, was already confirmed in service, all that the High Court did on the administrative side was to check his record, and thereafter to deny him the selection grade. The above observation in the impugned order in Revision was a suggestion to the Administration of the High Court. It was not a case of making any adverse or disparaging remarks. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter of right. The record of the concerned Judge has to seen, and that having been done in the present case (in pursuance to the observations of the High Court), and having noted the serious deficiencies, the High Court had denied the selection grade to the appellant. The impugned order contained nothing but a correctional suggestion to the High Court Administration which the Administration has accepted. [Para 24] [362-C-H; 363-A]

1.5. It is only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. By the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years and, therefore, the Revisional Court did not deem it fit to reopen the case. The appellant cannot take advantage of this part of the judgment of the Revisional Court, to challenge the observations of the Revisional Judge making a suggestion to the High Court to scrutinize appellant’s record for the dereliction of duty on his part. The appellant was responsible for an unjustified dilution of the charge and, therefore, thorough checking of his service record was necessary which is, what was directed in the impugned order of the Revisional Court/High Court. There is no reason to interfere in the said order making certain observations and suggestions which were necessary in the facts and circumstances of the case. [Paras 25, 26] [363- B-F]

In the matter of `K’ A Judicial Officer, 2001 (3) SCC 54; V.K. Jain v. High Court of Delhi through Registrar General and Others, 2008 (17) SCC 538 and Prakash Singh Teji v. Northern India Goods Transport Company Private Limited and Anr, 2009 (12) SCC 577 – distinguished.

State of Bihar v. Ramesh Singh AIR 1977 SC 2018; Nirmaljit Singh Hoon v. State of West Bengal1973 (3) SCC 753; Chandra Deo Singh v. Prokash Chandra Bose AIR 1963 SC 1430; Niranjan Singh v. Jitendra Bhimraj 1990 (4) SCC 76 – relied on.

Case Law Reference:

2001 (3) SCC 54 distinguished Para 12

2008 (17) SCC 538 distinguished Para 13

2009 (12) SCC 577 distinguished Para 14

AIR 1977 SC 2018 relied on Para 20

1973 (3) SCC 753 relied on Para 20

AIR 1963 SC 1430 relied on Para 20

1990 (4) SCC 76 relied on Para 20

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 232 of 2005.

From the Judgment & Order dated 28.10.2002 of the High Court of Orissa in Suo Motu Criminal Revision Petition No. 367 of 1997.

Uday Gupta, D.K. Mishra, Manoj Swarup for the Appellant.

Suresh Chandra Tripathy, Janaranjan Das, Swetaketu Mishra for the

Respondents.

 

Prior to imposing liability for an offence by aid of S.34 – The Basic test is :-

i) See whether common intention formed ? when different people’s intention converge on a point – a meeting of minds – they decide to do it together with complimentarity of action.

 

ii) Whether any act or ommission took place ?

 

iii) Whether that act or ommission is criminal in nature ? i.e whether is it an offence in itself or something prohibited by law etc.

 

iv) Whether Active Participation by everyone ?

 

v) Whether offence is committed in furtherance of common intention of them all ? or is unconnected with it ? 

 

Supreme Court of India

CASE NO.:

Appeal (crl.) 821 of 2000

Appeal (crl.) 160 of 2001

PETITIONER:

SURESH AND ANR.

Vs.

RESPONDENT:

STATE OF U.P

DATE OF JUDGMENT: 02/03/2001

BENCH:

R.P. Sethi & B.N. Agrawal

JUDGMENT:

SETHI, J. for himself and Agrawal,J.

In view of the importance of the matter, in so far as the interpretation of Section 34 of the Indian Penal Code is concerned, we have chosen to express our views in the light of consistent legal approach on the subject throughout the period of judicial pronouncements. For the applicability of Section 34 to a co-accused, who is proved to have common intention, it is not the requirement of law that he should have actually done something to incur the criminal liability with the aid of this section. It is now well settled that no overt act is necessary to attract the applicability of Section 34 for a co-accused who is otherwise proved to be sharing common intention with the ultimate act done by any one of the accused sharing such intention.

Section 34 of the Indian Penal Code recognises the principle of vicarious liability in the criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention pre-supposes prior concert, which requires a pre- arranged plan of the accused participating in an offence. Such a pre- concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on a spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.

Dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as “the Code”) is the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ element of participation in absence resulting in the@@ JJJJJJJJJJJ

ultimate “criminal act”. The “act” referred to in latter part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word “act” used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown to not have dissauded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have pre-conceived result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Shatrughan Patar & Ors. v. Emperor [AIR 1919 Patna 111] held that it is only when a court with some certainty hold that a particular accused must have pre-conceived or pre-meditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied.

In Barendra Kumar Ghosh vs. King Emperor [AIR 1925 PC 1] the Judicial Committee dealt with the scope of Section 34 dealing with the acts done in furtherance of the common intention, making all equally liable for the results of all the acts of others. It was observed:

“…….the words of S.34 are not to be eviscerated by reading them in this exceedingly limited sense. By S.33 a criminal act in S.34 includes a series of acts and, further, “act” includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one’s very eyes. By S.37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things ‘they also serve who only stand and wait’. By S.38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. S.34 deals with the doing of separate acts, similar of diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for ‘that act’ and ‘the act’ in the latter part of the section must include the whole action covered by ‘a criminal act’ in the first part, because they refer to it. S.37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. S.38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other.”

(Emphasis supplied)

Referring to the presumption arising out of Section 114 of the Evidence Act, the Privy Council further held:

“As to S.114, it is a provision which is only brought into operation when circumstances amounting to abetment of a particular crime have first been proved, and then the presence of the accused at the commission of that crime is proved in addition; Abhi Misser v. Lachmi Narain [1900 (27) Cal.566]. Abetment does not in itself involve the actual commission of the crime abetted. It is a crime apart. S.114 deals with the case where there has been the crime of abetment, but where also there has been actual commission of the crime abetted and the abettor has been present thereat, and the way in which it deals with such a case is this. Instead of the crime being still abetment with circumstances of aggravation, the crime becomes the very crime abetted. The section is evidentiary not punitory. Because participation de facto(as this case shows) may sometimes be obscure in detail, it is established by the presumption juris et de jure that actual presence plus prior abetment can mean nothing else but participation. The presumption raised by S.114 brings the case within the ambit of S.34.

“(Emphasis supplied)

The classic case on the subject is the judgment of the Privy Council in Mahboob Shah vs. Emperor [AIR 1945 PC 118]. Referring to Section 34 prior to its amendment in 1870 wherein it was provided:

“When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.”

it was noticed that by amendment, the words “in furtherance of common intention of all” were inserted after the word “persons” and before the word “each” so as to make the object of Section clear. Dealing with the scope of Section, as it exists today, it was held:

“Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say ‘the common intention of all’ nor does it say ‘an intention common to all’. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To provide the aid of S.34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre- arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from this act or conduct or other relevant circumstances of the case.”

(Emphasis supplied)

A Full Bench of the Patna High Court in The King Emperor vs. Barendra Kumar Ghose [AIR 1924 Cal. 257] which was later approved by the Privy Council dealt with the scope of Section 34 in extenso and noted its effects from all possible interpretations put by various High Courts in the country and the distinguished authors on the subject. The Court did not agree with the limited construction given by Stephen,J. in Emperor v. Nirmal Kanta Roy [1914 (41) Cal.1072] and held that such an interpretation, if accepted, would lead to disastrous results. Concurring with Mookerjee,J. and giving the section wider view Richardson,J. observed:

“It appears to me that section 34 regards the act done as the united act of the immediate perpetrator and his confederates present at the time and that the language used is susceptible of that meaning. The language follows a common mode of speech. In R. v. Salmon [1880 (6) QBD 79] three men had been negligently firing at a mark. One of them – it was not known which – had unfortunately killed a boy in the rear of the mark. They were all held guilty of manslaughter. Lord Coleridge, C.J. said: -’The death resulted from the action of the three and they are all liable’. Stephen,J. said:- ‘Firing a rifle’ under such circumstances ‘is a highly dangerous act, and all are responsible; for they unite to fire at the spot in question and they all omit to take any precautions whatever to prevent danger.

Moreover, sections 34, 35 and 37 must be read together, and the use in section 35 of the phrase ‘each of such persons who joins in the act’ and in section 37 of the phrase, ‘doing any one of those acts, either singly or jointly with any other person’ indicates the true meaning of section 34. So section 38 speaks of ‘several persons engaged or concerned in a criminal act’. The different mode of expression may be puzzling but the sections must, I think, be construed as enunciating a consistent principle of liability. Otherwise the result would be chaotic.

To put it differently, an act is done by several persons when all are principals in the doing of it, and it is immaterial whether they are principals in the first degree or principals in the second degree, no distinction between the two categories being recognised.

This view of section 34 gives it an intelligible content in conformity with general notions. The opposing view involves a distinction dependent on identity or similarity of act which, if admissible at all, is wholly foreign to the law, both civil and criminal, and leads nowhere.”

Approving the judgments of the Privy Council in Barendra Kumar Ghose and Mahboob Shah’s cases (supra) a three Judge@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Bench of this Court in Pandurang & Ors. v. State of@@ JJJJJJJJJJJJJJJ

Hyderabad [AIR 1955 SC 216] held that to attract the applicability of Section 34 of the Code the prosecution is under an obligation to establish that there existed a common intention which requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of all. This Court had in mind the ultimate act done in furtherance of the common intention. In the absence of a pre-arranged plan and thus a common intention even if several persons simultaneously attack a man and each one of them by having his individual intention, namely, the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section. In a case like that each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any or the other. The Court emphasised the sharing of the common intention and not the individual acts of the persons constituting the crime. Even at the cost of repetition it has to be emphasised that for proving the common intention it is necessary either to have direct proof of prior concert or proof of circumstances which necessarily lead to that inference and “incriminating facts must be incompatible with the innocence of the accused and incapable of explanation or any other reasonable hypothesis”. Common intention, arising at any time prior to the criminal act, as contemplated under Section 34 of the Code, can thus be proved by circumstantial evidence.

In Shreekantiah Ramayya Munipalli & Anr. v. State of Bombay [AIR 1955 SC 287] this Court held:@@

JJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

“It is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long beforehand, but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation which, of course, can be of a passive character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre-arranged plan when the time comes for him to act.”

(Emphasis supplied)

This Court again in Takaram Ganapat Pandare v. State of Maharashtra [AIR 1974 SC 514] reiterated that Section 34 lays down the rule of joint responsibility for criminal act performed by a plurality of persons and even mere distance from the scene of crime cannot exclude the culpability of the offence. “Criminal sharing, overt or covert, by active presence or by distant direction making out a certain measure of jointness in the commission of the act is the essence of Section 34″.

In a case where the deceased was murdered by one of the two accused with a sharp edged weapon at 10.30 p.m. while he was sleeping on a cot in his house while the other accused, his brother, without taking part stood by with a spear in his hand to overcome any outside interference with the attainment of the criminal act and both the accused ran away together after the murder, this Court in Lalai alias Dindoo & Anr. v. State of U.P. [AIR 1974 SC 2118] held that these facts had a sufficient bearing on the existence of a common intention to murder.

In Ramaswami Ayyangar & Ors. v. State of Tamil Nadu [AIR 1976 SC 2027] this Court declared that Section 34 is to@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ be read along with preceding Section 33 which makes it clear@@ JJJJJJJJJJJJJJJJJJ

that the “act” mentioned in Section 34 includes a series of acts as a single act. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise. Even a person not doing any particular act but only standing guard to prevent any prospective aid to the victims may be guilty of common intention. However, it is essential that in case of an offence involving physical violence it is essential for the application of Section 34 that such accused must be physically present at the actual commission of crime for the purposes of facilitating accomplishment of “criminal act” as mentioned in that section. In Ramaswami’s case (supra) it was contended that A2 could not be held vicariously liable with the aid of Section 34 for the act of other accused on the grounds: firstly he did not physically participate in the fatal beating administered by co-accused to the deceased and thus the “criminal act” of murder was not done by all the accused within the contemplation of Section 34; and secondly the prosecution had not shown that the act of A2 in beating PW was committed in furtherance of the common intention of all the three pursuant to a pre-arranged plan. Repelling such an argument this Court held that such a contention was fallacious which could not be accepted. The presence of those who in one way or the other facilitate the execution of the common design itself tantamounts to actual participation in the “criminal act”. The essence of Section 34 is simultaneously consensus of the minds of persons participating in the criminal action to bring about a particular result. Conviction of A2 under Section 302/34 of the Code in that case was upheld.

In Rambilas Singh & Ors. v. State of Bihar [AIR 1989 SC 1593] this Court held:

“It is true that in order to convict persons vicariously under S.34 or S.149 IPC, it is not necessary to prove that each and everyone of them had indulged in over acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly.” (Emphasis supplied)

Again a three Judge Bench of this Court in State of U.P. v. Iftikhar Khan & Ors. [1973 (1) SCC 512] after relying upon the host of judgments of Privy Council and this Court, held that for attracting Section 34 it is not necessary that any overt act must be done by a particular accused. The section will be attracted if it is established that the criminal act has been done by one of the accused persons in furtherance of the common intention. If this is shown, the liability for the crime may be imposed on any one of the person in the same manner as if the act was done by him alone. In that case on proof of the facts that all the four accused persons were residents of the same village and accused Nos.1 and 3 were brothers who were bitterly inimical to the deceased and accused Nos.2 and 4 were their close friends, accused Nos.3 and 4 had accompanied the other two accused who were armed with pistols; all the four came together in a body and ran away in a body after the crime coupled with no explanation being given for their presence at the scene, the Court held that the circumstances led to the necessary inference of a prior concert and pre-arrangement which proved that the “criminal act” was done by all the accused persons in furtherance of their common intention.

In Krishnan & Anr. v. State of Kerala [JT 1996 (7) SC 612] this Court even assuming that one of the appellants had@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ not caused the injury to the deceased, upheld his conviction@@ JJJJJJJJJJJJJJ

under Section 302/34 of the Penal Code holding:

“Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service section 34 of the Penal Code. It is no doubt true that court likes to know about overt act to decide whether the concerned person had shared the common intention in question. Question is whether overt act has always to be established? I am of the view that establishment of a overt act is not a requirement of law to allow section 34 to operate inasmuch this section gets attracted when “a criminal act is done by several persons in furtherance of common intention of all”. What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court’s mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur.”

In Surender Chauhan v. State of M.P. [2000 (4) SCC 110] this Court held that apart from the fact that there should be two or more accused, two factors must be established – (i) common intention and (ii) participation of the accused in the commission of the offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability. Referring to its earlier judgment this Court held:

“Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them (Ramaswami Ayyangar v. State of T.N. 1976 (3) SCC 779]. The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. (Rajesh Govind Jagesha v. State of Maharashtra 1999 (8) SCC 428). To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established” (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.” For appreciating the ambit and scope of Section 34, the preceding Sections 32 and 33 have always to be kept in@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ mind. Under Section 32 acts include illegal omissions.@@ JJJJJJJJJJJJJJJJJJJJJJJJJJ

Section 33 defines the “act” to mean as well a series of acts as a single act and the word “omission” denotes as well a series of omissions as a single omission. The distinction between a “common intention” and a “similar intention” which is real and substantial is also not to be lost sight of. The common intention implies a pre-arranged plan but in a given case it may develop at the spur of the moment in the course of the commission of the offence. Such common intention which developed at the spur of the moment is different from the similar intention actuated by a number of persons at the same time. The distinction between “common intention” and “similar intention” may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of justice.

After referring to Mahboob Shah’s case (supra) this Court in Mohan Singh & anr. vs. State of Punjab [AIR 1963 174] observed, it is now well settled that the common intention required by Section 34 is different from the same intention or similar intention. The persons having similar intention which is not the result of pre-concerted plan cannot be held guilty for the “criminal act” with the aid of Section 34. Similarly the distinction of the words used in Section 10 of the Indian Evidence Act “in reference to their common intention” and the words used in Section 34 “in furtherance of the common intention” is significant. Whereas Section 10 of the Indian Evidence Act deals with the actions done by conspirators in reference to the common object, Section 34 of the Code deals with persons having common intention to do a criminal act.

In State through Superintendent of Police, CBI/SIT vs. Nalini & Ors. [1995 (5) SCC 253] Brother Thomas,J. in his judgment dealt with such a proposition in paras 107 and 108.

However, in this case on facts, the prosecution has not succeeded in proving that A3 Pavitri Devi shared the common intention with the other two accused persons, one of whom was her husband and the other her brother. It has come in evidence that when the witnesses reached on the spot, they found the said accused standing on the road whereas the other accused were busy committing the crime inside the house. The exaggerated version of PW3 regarding the participation of Pavitri Devi by allegedly catching hold of his mother’s hair cannot be accepted as PWs 1 and 2 have not supported the aforesaid version. The High Court was, therefore, justified in holding that Pavitri Devi, A3 did not share the common intention with the other accused persons. By her mere presence near the place of occurrence at or about the time of crime in the absence of other evidence, direct or circumstantial, cannot hold her guilty with the aid of Section 34. But in case the prosecution had succeeded in proving on facts of her sharing of common intention with A1 and A2, she could not be acquitted of the charge framed against her only on the ground that she had actually not done any overt act. The appeal of the State filed against Pavitri Devi has no merit and has thus rightly been dismissed by Brother Thomas,J

Supreme Court of India

PETITIONER:

SHAMBU NATH MEHRA

Vs.

RESPONDENT:

THE STATE OF AJMER.

DATE OF JUDGMENT:

12/03/1956

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

AIYAR, N. CHANDRASEKHARA

CITATION:

1956 AIR 404 1956 SCR 199

ACT:

Burden of Proof-Proof of facts within especial knowledge- Facts equally within the knowledge of the prosecution and the accused, if “especially within the knowledge” of the accused-Illustration, Scope of-Indian Evidence Act (I of 1872), s. 106, Illustration (b).

HEADNOTE:

The appellant was put up for trial under s. 420 of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act of 1947 for obtaining a total sum of Rs. 23- 12-0 from the Government as T.A., being second class railway fares for two journeys, one from Ajmer to Abu Road and the other from Ajmer to Reengus, without having actually paid the said fares. The prosecution proved from the railway books and registers that no such second class tickets were issued at Ajmer on the relevant dates and the same witness who proved this also proved that tickets were not always issued and the passengers could pay the fare in the train and if the second class was fully booked, no further tickets were issued till the train arrived,in which case passengers sometimes bought third class or inter-class tickets and thereafter paid the difference to the guard of the train, if they could find second class accommodation on the arrival of the train. There was no proof that one or other -of those courses were not followed by the appellant and the prosecution instead of proving the absence of any such payments, in the same way as it had proved the non-issue of second class tickets, relied on Illustration (b) to s. 106 of the Evidence Act and contended that it was for the appellant to prove that he had actually paid the second class fares.

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Held, that Illustration (b) to s. 106 of the Evidence Act had no application, the evidence adduced by the prosecution did not warrant a conviction and the accused should, having regard to the long lapse of time, be acquitted. That s. 106 of the Evidence Act does not abrogate the well- established rule of criminal law that except in very exceptional classes of cases the burden that lies on the prosecution to prove its case never shifts and s, 106 is not intended to relieve the prosecution of that burden.’ On the contrary, it seeks to meet certain exceptional cases where it is impossible, or disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which can be proved by him without difficulty or inconvenience. But when knowledge of such facts is equally available to the prosecution if it chooses to exercise due diligence, they cannot be said to be especially within the knowledge of the accused and the section cannot apply.

Attygalle v. Emperor, (A.I.R. 1936 P.C. 169) and Seneviratne v.B., ([1936] 3 All E.R. 36), referred to. That illustrations to a section do not exhaust its full content even as they cannot curtail or expand its ambit, and in applying s. 106 the balance of convenience, the comparative labour involved in finding out and proving the facts and the ease with which the accused can prove them must be taken into consideration.

That cases coming under ss. 112 and 113 of the Indian Railways Act to which Illustration (b) to -s. 106 has obvious application stand on a different footing.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 65 of 1954.

Appeal by special leave from the judgment and order dated the 2nd January 1953 of the Judicial Commissioner’s Court at Ajmer in Criminal Appeal No. 3 of 1952 arising out of the judgment and order dated the 4th January, 1952 of the Court of Sessions Judge at Ajmer in Criminal Appeal No. 300 of 1951.

B.P. Berry and B. P. Maheshwari, for the appellant. C. K. Daphtar Solicitor-General of India (Porus A. Mehta and P. G. Gokhale, with him) for the respondent. 1956. March 12. The Judgment of the Court was delivered by BOSE J.-The appellant, S.N. Mehra, a Camp Clerk 201

Ajmer, has been convicted of offences under section 420 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947). He was sentenced to two years’ rigorous imprisonment and a fine of Rs. 100 on each count. The substantive sentences are concurrent. The substance of the offences for which he was convicted lay in obtaining sums to talling Rs. 23-12-0 from Government as T.A. for two journeys, one from Ajmer to Abu Road and the other from Ajmer to Reengus. The money represents the second class railway fare for these journeys. The allegation against him is that either he did not travel at all between those places on the relevant dates, or, if he did, that he did not pay the fare.

He appealed to the Sessions Judge at Ajmer and was acquitted. The State filed an appeal against the acquittal to the Judicial Commissioner of Ajmer’ The learned Judicial Commissioner accepted the appeal and remanded the case for retrial before a Special Judge because, by reason of certain amendments in the law, only a Special Judge could try an offence under section 5(2) of the Prevention of Corruption Act at the date of the remand.

The appeal here raises certain questions about sanction which we do not intend to discuss because, in our opinion, the evidence adduced does not justify a retrial as no conviction for those two offences could be based on it. It was first alleged that the appellant did not travel at all on the relevant dates and that the burden of proving that he did was on him.

We do not think this issue arises because the charge assumes that he did travel and there is no evidence before us to justify even a prima facie inference that he did not. The charge runs-

“That you, on or about etc … cheated the Government by dishonestly inducing the Government to pay you Rs. 62-9-0 on account of T.A. for the journeys performed on the above- mentioned days……… “

202

There is no suggestion that the journeys were not performed and only purported to be; and it would be unfair to permit the State to go back on what it said in the charge at this stage, especially after the appellant has entered on his defence and virtually admitted that he did travel on those dates; in any case, he has not denied the fact and that would naturally operate to his disadvantage if the prosecution were to be allowed to change its position in this way. We must therefore accept the fact that he did travel as alleged on the relevant dates, and the only question that remains is whether he paid the second class fares which he later claimed, and obtained, from Government as T.A. for those journeys.

The only proof that is adduced in support of the allegation that he did not is that no second class tickets were issued at Ajmer on the relevant dates either for Abu Road or for Reengus. This is proved by the Booking Clerk Ram Dayal, P.W. 4. But the same witness proves that tickets are not always issued and that passengers can pay the fare on the train; also, if the second class is fully booked no further tickets are issued till the arrival of the train. In that case, passengers sometimes buy a third class or an inter-class ticket and then pay the difference to the conductor or guard of the train if they are able to find second class accommodation when the train arrives. There is no proof that one or other of these courses was not followed on the dates with which we are concerned. The railway registers and books would show whether or not any such payments were made on those dates and the State could have proved the absence of such payments as easily as it was able to prove, from the same sort of material, that no second class tickets were issued. Instead of doing that, the State contented itself with saying that no second class tickets were issued and, then relying on Illustration (b) to section 106 of the Evidence Act, it contended that the burden of proving that the accused did pay the second class fares was on him.

Illustration (b) runs thus:

“A is charged with travelling on a railway with- 203

out a ticket. The burden of proving that he had a ticket is on him”.

But this is only an illustration and must be read subject to the section itself and cannot travel beyond it. The section runs-

“When any fact is especially within the knowledge of any person, the burden of proving that fact is on him”. The stress, in our opinion, is on the word “especially”. Section 106 is an exception to section 101. Section 101 lays down the general rule about the burden of proof. “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist”. Illustration (a) says-

“A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime”. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word

“especially” stresses that. It means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the

204

burden lies on an accused person to show that be did not commit the crime for which he is tried. These cases are Attygalle v. Emperor(1) and Seneviratne v. R. (2).

Illustration (b) to section 106 has obvious reference to a very special type of case, namely to offences under sections 112 and 113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not be purchased a ticket. On the other band, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity.

We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be “especially” within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.

Now what is the position here? These journeys (1) A.I.R. 1936 P.C. 169.

(2) [1936] 3 All E.R. 36, 49.

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were performed on 8-9-1948 and 15-9-1948. The prosecution was launched on 19-4-1950 and the appellant was called upon to answer the charge on 9-3-1951; and now that the case has been remanded we are in the year 1956. The appellant, very naturally, said on 27-4-1951, two and a half years after the alleged offences:

“It is humanly impossible to give accurate explanations for the journeys in question after such a lapse of time”. And what of the prosecution? They have their registers and books, both of the railway and of the department in which the appellant works. They are in a position to know and prove his official movements on the relevant dates. They are in a position to show that no vouchers or receipts were issued for a second class journey by the guard or conductor of the trains on those days. This information was as much within their “especial” knowledge as in that of the appellant; indeed it is difficult to see how with all the relevant books and other material in the possession of the authorities, these facts can be said to be within the “especial” knowledge of the appellant after such a lapse of time however much it may once have been there. It would, we feel, be wrong to allow these proceedings to continue any longer. The appellant has been put upon his trial, the prosecution has had full and ample opportunity to prove its case and it can certainly not complain of want of time to search for and prepare its material. No conviction could validly rest on the material so far produced and it would savour of harassment to allow the continuance of such a trial without the slightest indication that there is additional evidence available which could not have been discovered and produced with the exercise of diligence at the earlier stages.

We set aside the order of the Judicial Commissioner and restore the order of the Sessions Judge acquitting the appellant on both counts of the charge framed against him. 27

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