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In Re: H.B. Shamasundariah - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1968CriLJ1149
AppellantIn Re: H.B. Shamasundariah
Excerpt:
.....providing ferry services - though act has been amended to enable authorities to take up such works, no action has been taken so far during last six years directions given to authorities concerned to invoke powers conferred on them and to set law in motion in this regard within prescribed time. - the prosecution case is that on 2.7.1953, the accused bad only a gum of rs. 210/. he was thereafter directed to make good the balance of rs. 200 bad been deposited. the said rule 628 bad statutory force as it had been framed under sections 122 and 127 of the code of civil procedure. 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......after the coming into force of the mysore financial code, the accused was directed to furnish a cash security of rs. 250/- p.w. 4 sri linge gowda, who was the munsiff at nanjangud at that time, directed the accused to furnish the said cash security. the accused explained that he had already furnished the security of immoveable property and that he was not in a position to furnish cash security. as the accused had opened a savings bank account in the taluk treasury, he pledged the pass book in favour of the court. he was directed to make the deposit by instalments to make up the sum of rs. 250/. cash security required to be furnished by him. the prosecution case is that on 2.7.1953, the accused bad only a gum of rs. 10/- to his credit, as per the entry is the pass book, exhibit p4.on.....
Judgment:

M. Santhosh, J.

1. These two Criminal Appeals arise out of one common judgment delivered by the learned Sessions Judge, Mysore, convicting the appellant (accused) Shamasundaraiah of the various offences with which he was charged. The appellant, who will be hereinafter referred to as the accused, was found guilty of the offences under Sections 467, 471 and 420 of the Indian Penal Code, in Sessions Case No. 38 of 1965. He was also found guilty of the said three offences in addition to the offences under Section 474 of the Indian Penal Code in Sessions Case No. 89 of 1965. He was sentenced to one year's rigorous imprisonment for each of the offences in both the Sections Cases and the sentences were directed to run concurrently. These appeals are directed against the said convictions and sentences passed on him by the learned Sessions Judge.

2. The Prosecution case, briefly stated, is as follows:

The accused was working as a Gash Clerk in the Court of the Munsiff at Nanjangud. After the coming into force of the Mysore Financial Code, the accused was directed to furnish a cash security of Rs. 250/- P.W. 4 Sri Linge Gowda, who was the Munsiff at Nanjangud at that time, directed the accused to furnish the said cash security. The accused explained that he had already furnished the security of immoveable property and that he was not in a position to furnish cash security. As the accused had opened a Savings Bank Account in the Taluk Treasury, he pledged the Pass Book in favour of the Court. He was directed to make the deposit by instalments to make up the sum of Rs. 250/. cash security required to be furnished by him. The prosecution case is that on 2.7.1953, the accused bad only a gum of Rs. 10/- to his credit, as per the entry is the Pass Book, Exhibit P4.

On 11.9.1954, the accused made a false entry in the said Pass Book, Ext. P-4 (a) showing a deposit of Rs. 200/-, thus bringing up the total amount to his credit, to Rs. 210/. At the time of the inspection of the Court by the then Chief Justice Sri Medappa, the accused produced the Pass Book showing that he had furnished a cash security of Rs. 210/. He was thereafter directed to make good the balance of Rs. 40/. to make up the cash security of Rs. 250/. The prosecution case is that thereafter, on 20.12.1954, the accused deposited a sum of Rs. 40/- in the Treasury. After the said sum was deposited, the accused altered the figure in the Pass Book from Rs. 50/. which was the actual amount he had deposited, into '250' by adding the digit '2' to '50' in the pass book. On the Strength of the Pass Book produced by the accused showing that he had deposited Rs. 250/., P.W. 4 Sri Linge Gowda, who was the Presiding Officer, informed the High Court through the District Court that the direction given by the High Court as regards the cash security of the accused had been complied with as per rules.

The High Court accepted the same. The accused was in possession of the Pass Book throughout the period he was the Cash Clerk of Nanjangud Court. After some time the accused was transferred to Hunsur. The Pass Book of the accused which he had handed over to his successor, was sent by the Court to the Treasury for crediting the interest. The officials of the Taluk Treasury then discovered that the entry dated 11.9.1954 showing a deposit of Rs. 200 was a bogus entry and also found that the entries made on 20.12.54 had been altered. After the necessary enquiry a complaint was filed against the accused and after the investigation by the police, the charge-sheet was laid against the accused.

3. Sessions Cage No. 38 of 1965 relates to the false entries made in the Pass Book at Exhibit P-4 (a) relating to Rs. 200. Sessions Case No. 89 of 1965 relates to the false entry made at Exhibit P.4 (f) altering the figure by adding the digit '2' and making it into '250'. When examined under Section 842. Criminal P.C. the accused admitted that what the prosecution witnesses had deposed was true and that he made the said false entries in the Pass Book without actually depositing the said sum of Rs. 200 in the Treasury. He has stated that his intention in making the entries was not to deceive anybody, but because, be was wrongly pressed for furnishing cash security though he had furnished security of immovable property.

4. Sri V. Krishna Murthy, learned Counsel appearing on behalf of the appellant, has not disputed that the said entries in the Pass Book, Exhibits P-4 (a) and P-4 (f) were made by the accused, but he contended that on the admitted facts the various offences with which the accused had been charged have not been made out. In view of the fact that it is not disputed that the said false entries had been made by the accused, it is not necessary to discuss in detail the evidence let in by the prosecution in the case.

5. P.W. 4 Sri Linge Gowda, who was the Munsiff at Nanjangud has stated that he directed the accused to furnish the cash security of Rs. 250 as per the direction of th6 District Court that landed security was not in order and that cash security should be furnished. After the inspection of the Court by the High Court, it was observed in the Inspection Notes that the accused had deposited only Rs. 210 as shown in the Pass Book and that he should deposit the balance of Rs. 40. Thereafter, the accused brought the Pass Book and showed him that he had deposited the balance of Rs. 40 into the Treasury, making up the total sum of Rs. 250, cash security. He reported to the District Judge stating that the full amount of security had been deposited by the accused.

P.W. 3 Sri Gangadharappa has stated that at the time of the inspection, the accused showed him the Pass Book Exhibit P-4, wherein an entry was made Ex. P-4 (a) showing that Rs. 200 had been deposited on 11.9.1954. In the inspection notes he has referred to the balance of Rs. 40 to be deposited by the accused. The prosecution examined P.Ws. 9 to 12 who were the officials employed in the Treasury at the relevant time. They have slated that the sum of Rs. 200 was not deposited on 11.9.1954 and the entry Exhibit P-4 (a) in the Pass Book is false entry. The officials deposed that the entry was not in the handwriting of any of them and the relevant ledgers and account books did not disclose that the sum of Rs. 200 bad been deposited.

The relevant entry also did not bear the seal of the Treasury. They have also stated that the entries dated 20.12.1954 made at Exhibit P4 (a) have altered and the figure '2' had been added subsequently by somebody. In view of this evidence and alto the admission of the accused that he made the false entries referred to above, without depositing Rs. 200, there is no doubt that the prosecution has proved that the accused made the false entries in Exhibits P.4 (a) and P-4(a) without depositing the said sum of Rs. 200.

6. Sri Krishna Murthy, learned Counsel appearing on behalf of the appellant, has contended that the accused had already furnished landed security as per Rule 628 of the Civil Rules of Practice then in vouge, by deposit of title deeds. The said Rule 628 bad statutory force as it had been framed under Sections 122 and 127 of the Code of Civil Procedure. P. Ws. 3 and 4 have admitted that the accused had furnished the necessary security by depositing the title deeds and the same had been accepted. Sri Krishna Murthy contends that the authorities had no right to ask for cash security. There was no legal obligation on the accused to furnish cash security. Even Article 96 of the Financial Code does not say that only cash security should be furnished.

Sri Krishna Murthy argues that only if there is a statutory liability and if some document is forged by a person on that account, he will be guilty of forgery and not otherwise. He further contends that in this case, the accused had no fraudulent or dishonest intention. He has not cheated anybody excepting himself. There is no wrongful gain to the accused nor is there any wrongful loss to P. Ws. 3 and 4. There is absolutely no evidence to show that any injury has been caused to the body, mind or reputation of P. Ws. 3 and 4. He has relied on : 1963CriLJ434 , and AIR 1930 Pat 271, in support of his contention.

7. Sri Vijayashankar, learned Counsel appearing on behalf of the State, has contended that Article 96 of the Mysore Financial Code has statutory force as they are Rules framed under Article 283(2) of the Constitution of India, and as per the said Article, the accused was bound to furnish cash security and the authorities had a right to demand cash security from the accused. I am of opinion' that it is not necessary in this case to go into the question whether the accused was legally bound to furnish the cash security. Even assuming that there was no statutory liability on the part of the accused to furnish cash security, when the authorities directed the accused to furnish cash security, he agreed to do so and thereafter* made false entries in the Pass Book without depositing the sum of Rs. 200/- with the intention of deceiving the authorities and making them believe that he had furnished the said cash security.

Therefore, there is no doubt that the accused would be guilty of making a false document. It is not possible for me to agree with the contention of Sri Krishna Murthy that if there is no statutory liability on a person and if he makes a false document, he would not be guilty of forgery. There is no such limitation laid down by the words of the Sections 467, 471 or 420 of the Indian Penal Code. We may test the correctness of the proposition put forward by Sri Krishna. Murthy by taking an example. Suppose A asks B to make some purchases for him and B makes the purchases for Rs. 100/. and alters the bill from Rs. 100/- to Rs. 200/. and makes A part with the sum of Rs. 200/. It cannot be contended that because there is no statutory duty on the part of B to make purchase on behalf of A, B would not be guilty of either forgery or cheating. I am therefore of opinion that there is no force in the and contention of Sri Krishna Murthy.

8. Now, taking the question whether the accused had any dishonest or fraudulent intention and whether the act of the accused had caused wrongful gain to him and wrongful loss to P. Ws. 3 and 4, it is unnecessary to consider the various decisions cited at the Bar on this point in view of the authoritative ruling of the Supreme Court on this question in Dr. Vimla v. Delhi Administration : 1963CriLJ434 . His Lordship Subba Rao, J. as he then was, has reviewed the authorities on the subject and has indicated in the judgment what is meant by the words 'dishonestly' and 'fraudulently' referred to in the various sections of the Indian Penal Code. In the cases referred to by Sri Krishna Murthy, their Lordships have considered on the facts of those cases, whether the acts done therein were done fraudulently or dishonestly.

9. I will now consider on the admitted facts in this case, whether the various offences with which the accused had been charged, have been made out by the prosecution. What is important to point out is that in the definition of all the three Sections 467, 471 and 420 I.P.C. the words 'dishonestly' or 'fraudulently' are used. The prosecution must prove before a person can be convicted under these sections that he committed the acts either dishonestly or fraudulently. It is not necessary lot the prosecution to prove that the act was done were both dishonest and fraudulent. It is sufficient if the prosecution proves that the act was done either dishonestly or fraudulently. Section 24 of the Indian Penal Code states that whoever does anything with the intention of causing wrongful gain to one person or wrongful lose to another person is said to do that thing 'dishonestly'.

Here again, it may be pointed out, if a person does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, it would be acting 'dishonestly'. It is not necessary that the act should cause both wrongful gain to one person and wrongful loss to another person. It would be sufficient if the act causes wrongful gain to one person or wrongful toss to another. Section 25 of the same Code says that a person acts fraudulently if he does a thing with intent to defraud but not otherwise. Their Lordships of the Supreme Court in : 1963CriLJ434 referred to above, have pointed out that the expression 'defraud' involves two elements, namely, deceit and injury to the person deceived.

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. Section 44, I.P.C. defines 'injury'. It states as follows:

The word 'injury' denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.

I have already pointed out that to come within the purview of the three sections, it is not necessary that a person should act both dishonestly and fraudulently. It is sufficient if the prosecution proves that he acted either dishonestly or fraudulently, in cases where a person is charged with the He offences. In the light of the definition mentioned above, it has to be seen whether the accused in this case has forged the entries either dishonestly or fraudulently.

10. After examining the evidence in the case-it is not possible for me to agree with the contention of Sri Krishna Murthy that there was no-wrongful gain to the accused in this case by making the false entries in the Pass Book Exhibit P-4. The District Court and the High Court had directed the accused to furnish cash security of Rs. 250/. Whether legally the accused was bound to furnish the each security or not, he agreed to do as and prayed for time. Thereafter, he made the false entries in Exhibit P-4 (a), denoting that he had made the payment of Rs. 200/-on 11.9.54. The amount which he had deposited in the Pass Book at that time was only Rs. 10/-. But the accused made it appear that he had deposited altogether Rs. 210/. in the-Pass Book.

If the accused had not obeyed the orders of the District Court and the High Court, he would have got into serious trouble. There is no doubt that the accused, without depositing Rs. 200/. tried to make appear he had deposited Rs. 200/. and made it appear that he had complied with f the directions of the High Court and thus made a wrongful gain to himself. If the accused had not deposited the amount, thus disobeying the directions of the High Court, there is no doubt that he would have been in difficulty. Hence the act of the accused would come within the definition of the word 'dishonestly'. If the accused had dishonestly forged these entries, he would be guilty of forgery as per the definition contained in Section 494, I.P.C. As he had also deceived P.Ws. 3 and 4 and made them omit to do something, i.e. insisting on his furnishing cash security, which they would not have omitted to-do if they wore not as deceived, he would be guilty of cheating also.

11. As already pointed out by me, if the accused had committed these acts, dishonestly, it is not necessary for the prosecution to prove that the acted fraudulently. It is conceded by Sri Krishna Murthy that the accused deceived the authorities. But, I am of opinion that the act of the accused would also come within the definition 'fraudulently'. There is no doubt that the accused had deceived the authorities. As already stated the accused had made a wrongful gain by showing that he had deposited Rs. 200/. while really not doing so. It would be sufficient for the prosecution to prove that the accused got advantage by his act, and there is no need to prove that his act had caused injury to P.Ws. 3 and 4. In my opinion, there cannot be any doubt that by this deceit of the accused, P.Ws. 3 and 4 would suffer injury or harm.

As already pointed out, the direction of the High Court was that the accused should furnish cash security of RS. 250/. If the Officers had snot taken the necessary steps and seen that the accused furnished the cash security, they would be failing in their duty and disobeying the direction of the High Court. They would be held officially responsible for any loss that may take place P.W. 4 had written to the District Court sand the High Court that the accused had furnished the cash security as per their directions. If subsequently it was found that this was not correct, they would suffer in the estimation of their superiors. If any loss had occurred by their negligence, they would be held responsible departmentally. Therefore, there is no doubt that injury or harm would be caused to them, by this act of the accused.

Therefore, looked at from any point of View, I am of opinion that the acts of the accused would amount to offences mentioned above as he not only acted dishonestly, but also fraudulently and his act would come within the definitions of the various offences with which he was charged. It is therefore not possible for me to accept the Contention of Sri Krishna Murthy that the acts done do not come under the definition of the word 'dishonestly' and that there was no wrongful gain to the accused or loss or injury caused to P. Ws. 3 and 4 in this case. I am therefore of opinion that the prosecution has made out the charges against the accused and he has been rightly convicted of all the offences with which he was charged in both the Sessions Cases.

12. Sri Krishna Murthy has lastly contended that this is a fit case where the sentence of one year's R.I. given to the accused should be reduced. There is no doubt that the accused by the forgery and cheating committed by him did not misappropriate any Government money. He did not make these false entries with the idea of withdrawing any money. It has to be remembered that the accused has also lost job. Another factor in favour of the accused is that He did not falsely deny the discharge but frankly admitted that he had made the false entries. I am of opinion that these are extenuating circumstances in favour of the accused and the ends of justice would be met by reducing the sentence from one year's R.I. to six months' R.I. in this case. I, therefore, alter the sentence of one year's R.I. passed on the accused for each of the offences, to one of six months' rigorous imprisonment.

13. In the result, I confirm the convictions passed on the accused by the learned Sessions Judge, in Mysore Sessions Cases Nos. 88 and 89 of 1965. I alter the sentence passed on the accused one year's R.I. to sis months rigorous imprisonment, as stated earlier, for each of the offences. These sentences are directed to run concurrently. With the modification mentioned above, both the anneals are dismissed.


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