1. This is an appeal by the Government of Bombay from an acquittal by the Third Presidency Magistrate of the accused Abdul Gani Bahadurbhai alias Karim Kasam.
2. The accused is a Mahometan of Kathiawar and has been doing business as a baker at Blantyre in Africa. He returned to India about the end of October 1924. On November 12, 1924, accompanied by the witness Vanechand, a clerk in a Velophone office, he presented at the French Bank in Bombay and obtained payment of a bill of exchange No. 3281 (Ex, A) dated June 10,. 1,924, from the Blantyre branch of the Standard Bank of South Africa on their London office for 900. The next day he presented and attempted to obtain payment at the Eastern Bank of Bombay of a similar Bill No. 3293 (Ex. E) from the same branch in South Africa on their London office for 12,000. The Bombay Police had, however, on June 27 and July 5, received two telegrams purporting to emanate from the Chief Commissioner of Police, Nyasaland, informing the Commissioner of Police. Bombay, that four blank drafts Nos. 3281, 3'285, 3289 and 3293 in duplicate belonging to the Blantyre branch of the Standard Bank on their London of office had been stolen and it was feared that signatures would be forged find negotiation attempted in Bombay. The Commissioner of Policy Bombay, circulated information of this letter to the banks in Bombay, among them the Eastern Bank; and the clerk Amritrao of the Eastern Bank, on presentation by the accused of the bill No. 3293, asked him to wait and informed his superiors. They communicated with the Police, the latter appeared and arrested the accused. The third draft No. 3285 for 1,500 (Ex. G) was found on him. The last draft No. 3289 (Ex. E) for 2 500 was, the accused admits, given by him together with a sum of Rs, 1,000 to Vanechand referred to above. Vanechand, on hearing of the accused's arrest, tore up the draft The pieces (Ex. E; were secured by the Police.
3. Apart from the telegrams, which the learned Magistrate held to be inadmissible, no evidence was adduced from Africa. The other evidence consisted of what transpired in Bombay as to which there was little or no dispute and of the accused's statement and explanation, that he had received all four drafts at Blantyre from one De Souza, a clerk in the Standard Bank and a neighbour of his, for negotiation in Bombay.
4. The learned Magistrate in view of the Full Bench decision in Empress v. S. Moorga, Chetti I. L. R.(1881) 5 Bom. 338 was doubtful as to his jurisdiction. But he framed two charges against the accused, one under Section 414 or in the alternative under Section 420 as to the first draft which had been honoured, and another under the same sections read with Section 511, in respect of the second draft, presented but not paid.
5. On a consideration of the evidence, however, it appeared to the learned Magistrate that no false representation was proved to support either charges under Section 420, Indian Penal Cone, arid that , on the charges under a 414, there were grave reasons for suspicion, but in the absence of evidence from Africa, that the accused's guilt was not proved. On the other hand, he ordered that the moneys realised by the first accused should be returned to the Bank on the ground that the draft must have come into De Souza's hands by theft or some offence.
6. It is not clear how the learned Magistrate could, on the main charges, hold that the drafts were not proved to be stolen but as regards the return of the money that they were BO proved.
7. It is argued for the Government that the evidence on record sufficed to prove both that the drafts were stolen property and the accused's guilty knowledge and intention under Section 414, Indian Penal Code; and on the charge of misrepresentation, it is argued that presentation was a misrepresentation that he was a holder in due course.
8. For the accused it is contended that there was no evidence that the drafts ware stolen and that the accused's guilty knowledge and intention are not only not proved but his conduct and statement throughout were straightforward. Reliance is placed on the dictum of this Court in cases such as Queen-Empress v. Alu Kala (1891) Unrep. C. C. 553 and Emperor v. Jethalal I. L. R(1905) . 29 Bom. 449 7 Bom. L. R. 527 that (2). 414 of the Indian Penal Code applies only where there is no possession of the stolen property.
9. There are two peculiarities in this case. There is no direct evidence as to the stolen nature of the drafts, the difficulty being due to the distance between Bombay and Africa, and the difficulty was common to both aides. The prosecution apparently made no inquiry, and at all events produced no evidence from Africa. Nor could the accused examine De Souza or other witnesses. His application for commission being issued to Africa was clearly outside the authority of the Court under Section 503 of the Code of Criminal Procedure as it is now framed. The second peculiarity is that, unlike most cases under Section 414, Indian Penal Code, the property alleged to be stolen consists not of ornaments or similar valuables or cattle but of bills of exchange.
10. These peculiarities, however, leave the duty of the Court unaffected. It is reduced, in fact, to a case of circumstantial evidence not only on the question of the accused's guilty knowledge and intention but also on the question whether the drafts are proved to be stolen property within the meaning of section 410, Indian Penal Code. The method of arriving at an answer, as in other cases of circumstantial evidence is, I conceive, the same Upon the facts admitted or proved the prosecution must show that these two propositions, viz., that they were stolen property and that the accused had guilty knowledge, are the only propositions which are consistent with the rest of the evidence. If, on the other hand, the accused can put forward any alternative hypothesis reasonably possible or even moderately probable, the accused is entitled to the benefit of the doubt and the case against him must fail.
11. The telegrams Exh. X were held to be inadmissible by the learned Magistrate, presumbly because of the absence of evidence from Africa. But they are relevant to explain the conduct of the witness Amritrao, the clerk of the Eastern Bank, and of the Bombay Police, and are, therefore, admissible, and are not rendered inadmissible by Section 88 of the Indian Evidence Act, on which reliance is placed for the accused. That section merely embodies the fact that a telegraph office makes no inquiries and is in no way responsible for the identity of the sender of a message, much less for the truth of its contents It is not open to the prosecution on the single evidence of the telegrams to ask the Court to presume that they were sent by the Police of Nyasaland or that the drafts were stolen property. But there is nothing in the section to prevent the telegrams once admitted from being considered along with the rest of the evidence on the questions suited above,
12. In. regard to the accused's statement under Section 342, Criminal Procedure Code; it can, and in cases of circumstantial evidence must, be taken into consideration. It may, in the circumstances of the present case of inability to procure evidence from Africa, even be accepted as to the circumstances under which the accused came into possession of the drafts. On these premises I proceed to enter on a consideration of the proper inferences from the facts admitted or proved including this statement.
13. As for the telegrams, it appears that when the first telegram was received on June 27, the Bombay Police inquired from the Nyasaland Police from whom it purported to come, and received a reply by a second telegram on July 5. It is not alleged for the accused that there was any person in Africa who had an interest in Jure in sending false information in code in the name of the Nyasaland Police as regards the blank draft forms to the Bombay Police. On the contrary, the second telegram was an answer to the telegram addressed to the Chief Commissioner of Police of Nyasaland It is, in my opinion, a reasonable presumption under Section 114 of the Indian Evidence Act, firstly, that the telegram Ex, X has emanated, as it purports, from the Nyasaland Police, and, secondly, that the Nyasaland Police received information from the Standard Bank of Blantyre that these drafts were missing and that the Bank believed that they were stolen and feared that they might be forged and misused in Bombay.
14. What happened to these drafts from the time of their disappearance from the Bank in June up to the time they came into the possession of the accused in Africa, is not in evidence. He got them, it may be conceded, from one De Souza, one of the clerks of the Bank, This clerk De Souza gave the four missing drafts totalling 6,900 to his neighbour the accused, a baker. Even according to the accused's own brother, the drafts usually sent by the accused were not frequent and wore of small amounts. His brother Abdul states: 'One draft of 33 was given to Narsi Jina on December 3, 1922, Another draft of February 1, 1923, for 20 was paid to Sharif Hassam. On April 8, 1924, a draft for 20 was paid to Narsi Jina.' To take the accused's own statement: 'De Souza asked me if I would cash drafts for him in India. I asked him what remuneration I was to get, If I would cash four drafts of 6.900 for him in India I was to get Rs, 4,'00 For my trouble as commission. I asked him if I should negotiate in my own name, De Souza said 'no' and he told me that I should not endorse them in the name by which I was known in Africa as I had creditors in Africa and the money might be attached. I endorsed the drafts in the name of Karim Kasam as I had opened a firm in my native place in the name of my young brother Karim and in my name Kasam.
15. On the first point, namely, whether the drafts were stolen or otherwise, it appears to me that no alternative hypothesis has been set up or is possible on all this evidence except that, the drafts were stolen. The information by the Bank to the Police at Nyasaland in June, never contradicted hitherto, that the Bank drafts were missing or stolen, the fact that they disappeared till about October and were in the possession of the clerk in the same Bank, who probably knew of the loss and would not cash them in Blantyre but thought it necessary to send them all the way to Bombay, without his own endorsement-all these circumstances coupled with the large amount of the drafts and the presumably small pay of the clerk De Souza make it impossible, I think, to arrive at any other inference except that the drafts were stolen-stolen by whom, it is not necessary for the purpose of this case to consider. In this connection it is relevant to consider Vanechand's own action, It is argued for the Government that Vanechand was also one of the conspirators and that under Section 10 of the Indian Evidence Act his conduct was relevant against the accused. But Vanechand has not expressly been implicated in the present case as a conspirator with the accused and the fact that he tore up the draft is evidence only admissible under Section 9, and not under Section 10 of the Indian Evidence Act But after making every allowance for timidity, it is impossible to get over the fact that unless Vanechand thought that the draft must have been stolen, it is unlikely that he would tear to pieces in a moment of nervousness a draft for so large an amount,
16. I pass on to the second point as to the accused's knowledge and intention. Accepting the accused's own version, the question is whether from the admitted circumstances there was a reasonable possibility of his believing that the drafts were not stolen, or whether he must have had reason to believe that they were stolen. De Souza was a clerk presumably on small pay. He shows to the accused four drafts for 6,900 dated June from the Bank where he is employed to the knowledge of his neighbour the accused. None of the drafts bear De Souza's endorsement. De Souza instead of cashing the drafts himself in Blantyre, deliberately makes them over to the accused and requests him to cash them in Bombay and tells him expressly that he should not negotiate them in his own name. The accused keeps them with himself in Bombay for about two weeks and makes no attempt to negotiate them through a recognised broker. He takes with him the clerk Vanechand, and in negotiating the smallest of them, he signs not his own name but uses a double name, his brother's name and a name he says is his own He gave Vanechand, with whose help he negotiated the first draft, not less than Rs. 1,000. Vanechand states that this sum was given to keep for the expenses for the office which the accused said he was going to open in some premises in Kalbadevi Road. It is difficult to accept this explanation of the receipt by Vanechand of so large an amount for an office still to be rented and opened in the future. Vanechand on the accused's arrest, tears up the fourth draft, On the change of the notes obtained at the Bank on the first draft into smaller notes in the currency office, I do not lay much stress. Under all these circumstances stated above, it appears to me that, here again, no alternative hypothesis is made out, and that the accused's conduct from the time he received the drafts till the time of negotiations, is only consistent with his guilty knowledge and intention.
17. Admitting that De Souza told him of his intention to import agricultural implements and that the accused believed it, that does not affect the other admitted conduct and the adverse inference against him. I am of opinion, therefore, that the second issue must also be answered against the accused.
18. As regards jurisdiction, the Full Bench ruling and view in Empress v. S. Moorga Chetty I. L. R. (1881) 5 Bom. 338 have been modified by the subsequent amendment of Section 410, Indian Penal Code, by the words inserted in the section by Section 9 of Act VIII of 1882; and undoubtedly the Court had jurisdiction in the case,
19. On the legal question as to Section 414, Indian Penal Code, the case of Queen-Empress v. Alu Kala (1891) Unrep. C. 553 has been cited. In that case it appears that the person who dishonestly received or retained the stolen bullocks with guilty knowledge was also held to have disposed of them but in one and the same transaction; and this Court held that the separate and consecutive sentences passed under Sections 411 and 414 could not stand, confirmed the sentence under Section 411, Indian Penal Code, and set aside the other. It was certainly observed in that case in the short judgment that ' section 414, Indian Penal Code, applies only where there has been no actual receipt ' and this observation has been referred to with approval by Batty J in Emperor v. Jethalal I. L. R.(1905) 29 Bom. 449 7 Bom. L. R. 527 . It does not appear, however, that illustration (j) to Section 235 of the Code of Criminal Procedure was brought to the notice of the Court in either case. That illustration runs as follows:
Several stolen sacks of corn are made over to A and B, who know they are stolen property, for the purpose of concealing them, A and B thereupon voluntarily assist each other to conceal the sacks at the bottom of a grain pit. A and B may be separately charged with, and convicted of, offences under sections 411 and 414 of the Indian Penal Code.
20. Taking the sections themselves and Chapter XVII of the Indian Penal Code in which they stand, it would appear that Sections 378 to 409, Indian Penal Code, deal with various criminal methods by which property may be dishonestly taken from the possession of the lawful owner, that is, theft, extortion, robbery and dacoity, criminal misappropriation of property and criminal breach of trust. The next portion of the chapter deals with subsequent criminal acts with stolen property as defined in Section 410. Stolen property when it passes may be first received; retained and then finally concealed or disposed of; and it is in this chronological sequence that Sections 411 to 414, in my opinion, deal. When receipt or retention, not necessarily for disposal, is dishonest, Section 411 is the appropriate section. If, on the other hand, dishonest receipt or retention cannot be proved but only dishonest concealment or disposal, H. 414 is more appropriate. Thus, in the case of Emperor v. Budhankan : (1912)14BOMLR893 , certain gold bangles, the ownership of which was not known and could not be traced, were found and concealed on the railway line, in a place only known to the accused Pathan. It was held that he himself had concealed it. The Sessions Judge thought that the verdict of 'guilty' of the Jury was erroneous and referred the case, feeling doubtful as to the lack of legal proof that the property was stolen. As was pointed out by Batchelor J., in a case under Section 414, Indian Penal Code, the ownership of the property need not be traced. It was sufficient if it was proved that the property was stolen. It was held to be stolen property in that case, because it was such that it could not honestly be in the possession of a wandering Pathan, With this view of the law I agree.
21. Applying the law to the present case, though there is no direct evidence before us as to the actual theft of these drafts, for the reasons stated above no reasonable doubt is left in my mind, firstly, that they were stolen, and, secondly, that when the accused negotiated the first draft, and attempted to negotiate the second draft, he had reason to believe they were stolen property. I would, therefore, allow the appeal, set aside the order of acquittal and convict the accused on the first charge under Section 414, and on the second charge under Sections 414 and 511. Indian Penal Code.
22. In this view it is not necessary to express any opinion on the alternative charges under Section 420. But I agree upon the whole with the learned Magistrate that no definite false representation by the accused is proved,
23. I agree generally with the reasonings of my learned brother and his exhaustive judgment leaves little for me to add. On the legal question that was raised as to the 'applicability of Section 414, Indian Penal Code, to this case, I think that illustration (j) to Section 235, Criminal Procedure Code, sup-plies a conclusive answer to the contention that a person who has dishonestly received stolen property cannot possibly be charged and convicted of voluntarily concealing or disposing of that property. The illustration is one where A and B both receive property knowing it to be stolen property, and then go and conceal it, The illustration says as plainly as possible that both of them may be separately charged with and convicted of offences under Sections 411 and 414, This is an illustration to the general principle embodied in sub Section (2) of Section 235 that, if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences Therefore the remarks that have been made in some cases that a person, who might be charged under Section 411, cannot be charged and convicted under Section 414 are not, in my opinion, binding upon us, and must be rejected so far as they are in conflict with this particular illustration. In the present case the proper charge against the accused, in my opinion, is clearly one under Section414, because the particular act which led to his arrest and trial was the disposal of one draft and the attempted disposal of another; and the evidence that was adduced by the prosecution related to such particular act or acts and to the subsequent conduct of the accused and Vanechand, who accompanied him to negotiate the first draft. The accused might have possibly been charged and even convicted under Section 411. For although it was contended on his behalf that the Court would have no jurisdiction on a charge under Section 411, I fail to see how that contention can possibly prevail against the clear wording of Section 4, Indian Penal Code, and Section 180 of the Criminal Procedure Code, especially having regard to the illustration (b) to Section 180 and the new Sub-section (3) of Section 181. He could, at any rate, it seems to me, have been convicted of retaining stolen property, assuming of course that the ingredients of the offence are proved and also assuming that he was born in British India and domiciled there, his parents being similarly British Indians. But this point was not fully argued and it is unnecessary to decide it. Section 414, no doubt, requires that the accused should have assisted someone else in the disposal of the property and does not cover a case where a person receives and then disposes stolen property entirely on his own account. But in the present case the accused himself asserts that the clerk De Souza made a proposal to him to help in the disposal of these drafts and he fell in with that proposal and so committed the acts which are the subject of the prosecution. Therefore it seems to me, on the facts alleged and held proved, the accused clearly voluntarily assisted in disposing of these drafts.
24. On the merits, I agree with my learned brother that the circumstantial evidence plus the statement of the accused under Section 342, Criminal Procedure Code, afford no other reasonable hypothesis, than that he had a guilty knowledge, or at any rate felt convinced in his own mind, that these drafts had been stolen, so that he had reason to believe they were stolen, following the ruling in Impress v. Rango Timaji I. L. R(1880) . 6 Bom. 402. In regard to the accused's own statement some remarks were made that the Court should not use it to fill up any gap in the prosecution case There are no doubt cases in which that is a proper remark to make, but the present, in nay opinion, clearly is not one of them. The Code itself says in sub.s. (3) of Section 342 that his statement can be ' taken into consideration.' That is a phrase that is also used in Section 30 of the Indian Evidence Act in regard to the confession of a co-accused, and it has been held in Queen-Empress v. Khandia bin Pandu I. L. R. (1890) 15 Bom. 66 and various other cases, that the Court may take the confession into consideration in order to determine whether the issue of guilt is proved or not, and to that extent it becomes practically on the same footing as other evidence, although technically it is not evidence in the case according to the definition contained in the Indian Evidence Act, inasmuch as it is not made on oath. In the present case the inference of guilt arising against the accused from his own conduct and the inference arising that the property was stolen from Vanechand's conduct in tearing up the draft that accused had given to him (Ex, E), did throw an onus on the accused to explain how it was that he came to dispose of the drafts. His explanation, I agree with my learned brother, should be taken as it stands because the accused had no opportunity of adducing evidence in support of it; and taking it in that way, it clearly is a part of the material on which the Court has to decide the issue of the accused's guilt or otherwise.
25. On the other hand in regard to the telegrams, I think the learned Magistrate has not given due weight to them. He has in fact excluded them as inadmissible. The fact, however that these telegrams were sent is clearly relevant and admissible under Section 9 of the Indian Evidence Act, and I agree with my learned brother that the circumstances referred to by him raise a presumption under Section 114 of the Indian Evidence Act that the main telegram of June 26, emanated from the Nyasaland Police. That telegram is not of course evidence that the drafts had actually been stolen; but it gave information to the Bombay Police, which at any rate afforded a ground for a reasonable suspicion that these particular drafts wore stolen property, and the Police, therefore, had authority to arrest the accused when he was found in possession of one of these drafts, under Section 33, Clause (d), of the Bombay City Police Act IV of I902. The telegram explains how it was that they came to arrest the accused, and this case is not, therefore, on the same footing as it would have been if there were nothing to attach suspicion to the accused's possession of the drafts. The drafts are alleged by the Nyasaland Police to hive been stolen, and that is a circumstance which has to be taken into consideration as part of the evidence in this case, If any evidence had been adduced by some officer of the Standard Bank in Africa regarding the alleged theft, then of course this would have been a simple case. The only difficulty that arises is due to the absence of such evidence, but it does not necessitate the accused's acquittal. I agree with my learned brother that the Court is entitled to consider whether the evidence, coupled with the accused's own statement, does not circumstantially prove the accused's guilt. As long ago as 1865 this Court, in Reg. v. Harishankar Fakirbhat (1885) 2 B. H. C. R. 130 refused to interfere iii a similar case where the evidence was purely circumstantial. In that case it was argued that there was no proof that the property was stolen and that the evidence failed to show guilty knowledge. It was held that the persons concerned must have known, or have had reason to believe, that the property was stolen, and that the mere fact that the prosecution could not definitely establish from whom it had been stolen did not prevent the accused's conviction. A reference may also be made to Wills on Circumstantial Evidence, 6th Edition, p. 95, which cites cases where a similar course has been followed to meet a difficulty in establishing the identity of stolen property. We are, therefore, not in anyway setting up a new principle or departing from established law, I feel no reasonable doubt whatever as to the guilt of the accused in this case. I, therefore, agree in convicting him on both the charges that relate to Section 414.
(After hearing counsel and the Government Pleader on the question of sentence).
26. Per curiam. In sentencing the accused we take into account his conduct which has been fairly straightforward and of assistance in the inquiry, and also the fact that the full amount obtained by cashing one of the drafts has been practically recovered, so that no substantial loss has been caused to the Bank, as far as we are aware. On the other hand, the drafts were for large amounts, and it is obvious that the punishment should be of a somewhat deterrent nature. We do not think that it is a case for inflicting a fine. We sentence the accused to six months rigorous imprisonment on each of the two charges of which he has been convicted, the sentences to run concurrently.
27. The accused should accordingly be taken into custody and sent to jail.
28. We wish to add that, while recognising the difficulties in the case, we think that the Commissioner of Police, Bombay, should have endeavoured to have obtained some evidence from Nyasaland regarding the loss of these drafts, before sending up the accused to the Magistrate As similar cases may occur in future, we think it right to draw his attention to this particular point, as the omission to do this has very nearly resulted in a failure of justice.