Anantanarayana Ayyar, J.
1. In C. C. No, 1 of 1956 the Special Judge, Chittoor, tried two accused and convicted and sentenced them as follows:
S. No. Charge. Section. Conviction. Sentence.
1. Charge No. 1. Section 120B, A-1 and A-2 No separate sentence was
I.P.C. guilty. awarded under this charge.
2 Charge 1 (ft). Section 5 (2) A-l guilty. R.I. for 3 years.
of the Central
Act II of 1947.
3 Charge 1 (b). Section 5 (2) A-2 guilty. R.I. for 2 years.
of the Central
Act II of 1947
and 109, I.P.C.
4. Charge 2. Section 477A, A-1 guilty. R.I. for 3 years.
5 Charge 3. Section 465, A-1 guilty. R.I. for 1 year,
6. Charge 4. Section 420 A-1 guilty. R.I. for 2 years.
7. Charge 5. Section 420, A-2 guilty. R.I. for 2 years.
8. Charge 6. Section 471, A-2 guilty. R.I. for 1 year.
The learned Special Judue ordered the sentences to run concurrently. A-l has filed C. A. No. 96 of 1958 against his convictions and sentences. A-2 has filed C. A. No. 86 of 1958 against his convictions and sentences. Both the appeals were heard together by common consent, being against the same judgment, passed in the same trial.
2. The prosecution case, supported by nineteen witnesses, is briefly to the following effect: (After narrating the facts, His Lordship proceeded)
3. The learned Special Judge, after a careful and elaborate discussion of the evidence, held that all the charges were proved after rejecting the evidence of D.Ws. 1 to 4 as not believable. Accordingly, he convicted and sentenced the accused.
4. On behalf of the accused, various contentions have been raised, I am dealing with them below.
5. It is contended by the learned Counsel for the appellants that there was no proper sanction for investigation and for prosecution. under Section 5A of the Prevention of Corruption Act (1947) (as amended by Act 59 of 1952, notwithstanding anything contained in the Code of Criminal Procedure (Act V of 1898) no police officer below the rank (a) in the Presidency Towns of Madras and Calcutta, of an Assistant Commissioner of Police (b) in the Presidency Town of Bombay, of a Superintendent of Police and (c) elsewhere, of a Deputy Superintendent of Police -- shall investigate any offence punishable under Section 161, Section 165 or Section 165A of the Indian Penal Code (XLV of 1860) or under Sub-section (2) of Section 5 of the Act, without the order of a Presidency Magistrate or a Magistrate of the First Class, as the case may be, or make any arrest therefor without a warrant.
This statutory safeguard was conceived in the Interests of the public so that honest public servants should be able to discharge their duties free from false, frivolous and malicious accusations. In State of M.P. v. Mubarak All : 1959CriLJ920 , the Supreme Court pointed out that a Magistrate could not surrender his discretion to a police officer, but must exercise it, having regard to the relevant material made available to him at that stage and that the Magistrate, must also be satisfied that there was sufficient reason, owing to the exigencies of administrative convenience, to entrust a subordinate officer with the investigation.
In the present case, there was an order of the Magistrate, Ex. P-17 (b) dated 21-11-1955 authorising P.W. 19 to investigate the case. In H. N. Rishbud v. State of Delhi, : 1955CriLJ526 , it was held that if the provisions of Section 5-A were violated but cognizance was in fact taken and the case was disposed of, the invalidity of the precedent investigation did not vitiate the result unless miscarriage of justice was caused thereby. In this case, the investigation after the order of the Magistrate was certainly valid and investigation before that order did not vitiate the trial as no prejudice has been caused to the accused or even alleged.
6. Shri A. Gangadhara Rao contends that the order of sanction of the District Magistrate (Ex. P-26) regarding offence under Section 120-B, I.P.C. does not show that he had applied his mind to the facts of this case. In Biswabhusan Naik v. State of Orissa : 1954CriLJ1002 , a question arose whether the sanction given by the Government was invalid. In repelling that objection, Bose, J. observed (at page 360) thus:......It Is no more necessary for the sanction under the Prevention of Corruption Act to be in any particular form, or in writing or for it to set out the facts in respect of which it is given......The desirability of such a course is obvious because, when the facts are not set out in the sanction, proof has to be given 'allunde' that sanction was given in respect of the facts constituting the offence charged but an omission to do so is not fatal so long as the facts can. be, and are, proved in some other way.
7. In Madan Mohan v. State of U.P. : AIR1954SC637 it was held following the decision in Gokul Chand v. The King AIR 1948 PC 82 at p. 84 that the burden of proving that the requisite sanction had been obtained rested on the prosecution and such burden included proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based and that these facts might appear on the face of the sanction or might be proved by extraneous evidence. Therein, it was also observed that where the facts constituting the offence did not appear on the face of the letter sanctioning prosecution, it was incumbent upon the prosecution to prove, by other evidence, that the material facts constituting the offence were placed before the sanctioning authority.
In this case, P. W. 15, who was Magisterial clerk, of the District Magistrate, Cuddapah, has deposed that the District Magistrate passed the order of sanction after studying the records and after applying his mind to it. This extraneous evidence is adequate to show that the District Magistrate passed the order after applying his mind. The position is unlike in : 1959CriLJ920 , where the Magistrate, in granting the permission, did not realise the significance of his order giving permission, but only mechanically issued the order on the basis of the application which did not disclose any reason, presumably because he thought that what was required was only a formal compliance with the provisions of. Section 5-A. Thus, there was no defect in the order (of sanction) of the District Magistrate and the order is perfectly valid.
8. The learned Advocate for the appellants contends that Ex. P-8 series and Ex. P-26 series were not admissible in evidence and were wrongly admitted by the lower Court. It is argued that those statements are of the nature of statements recorded under Section 161, Cr. P. C. This contention is not tenable. In the first place, these are not statements recorded by the Inspector of Police, P.W. 19. The contents of these statements, in the sense of the facts disclosed in them, would be of no value if they had been recorded by the Inspector of Police (P.W. 19) in his hand. If the writing of P.W. 2 was seized by the Police Officer from him (P.W. 2) he could certainly produce it in the Court as such writing and it would be admissible in evidence. Similarly, he could produce the writing of the first accused.
In this case, the Inspector of Police (P.W. 19) personally knew that Ex. P-8 series were written by P.W. 2 and that Ex. P-25 series were written by the accused. Having seized them, he could produce them in Court and speak to his personal knowledge as to in whose writing each series was. Consequently, these documents do not have the nature of statements recorded under Section 161, Cr. P. C. and are not subject to any disability in the matter of admissibility in evidence. P.W. 2 has himself admitted that he wrote Ex. P-8 series. A-l admits that he wrote Ex. P-25 series in the presence of P.W. 13, who is a Ministerial Officer in the office of the Assistant Collector, Central Excise, Anantapuri It is not his (A-l's) case that he was compelled to writs Ex. P-25 series. P.W. 13 also says that A-l wrote Ex. P-25 series. I find that Ex. P-8 series and Ex. P-25 series were admissible in evidence and were rightly admitted by the lower Court.
9. The learned Counsel for the appellants contends that it is not proved satisfactorily that Ex. P-10 is in the hand-, writing of A-l. The Handwriting Expert (P.W. 16) after a comparison, has stated that Ex. P-10 is in the handwriting of the same person who wrote Ex. P-25 series. He has also, stated that Ex. P-10 is not in the handwriting of the person who wrote Ex. P-8 series. P.W. 16 has been cross-examined adequately on behalf of the accused. He deposed that he could not read Ex. P-25 to 25 (e) series or Ex, P-10 or Ex. P-8 series and could not write Telugu, but that he knew Telugu sufficiently for purposes of examining Telugu documents and was capable of picking out letters from them for his comparison.
10. The ordinary methods of proving handwriting are (1) by calling as a witness a person who wrote the document or saw it written, or who is qualified to express 39 opinion as to the handwriting by virtue of Section 47 of the Evidence Act; (2) by a comparison of handwriting as provided in Section 73 of the Evidence Act; and (3) by the admission of the person against whom the document is tendered. A document does not prove itself, nor is an unproved signature (handwriting) proof of its having been written by the person whose signature (handwriting) it purports to bear. Vida Barindra Kumar Ghose v. Emperor ILR 37 Cal 467 at p. 503. In that decision, it was also observed as follows:
In applying the provisions of Section 73 of the Evidence Act it is important not to lose sight of its exact terms. It does not sanction the comparison of any two documents, but requires that the writing with which the comparison is to be made, or the standard writing as it may be called, shall be admitted or proved to have been written by the person to whom it is attributed, and next the writing to be compared with the standard or, in other words, the disputed writing, must purport to have been written by the same person, that is to say the writing itself must state or indicate that it was written by that person.
The section does not specifically state by whom the comparison may be made, though the 2nd paragraph of the section dealing with a related subject expressly provides by way of contrast that in that particular connection the Court may make the comparison.
A comparison of handwriting is at all times as a mode of proof hazardous and inconclusive, and especially when it is made by one not conversant with the subject and without such guidance as might be derived from the arguments of counsel and the evidence of experts.
11-12. The decision in Phodee Bibee v. Govind Chuncler Roy 22 Suth WR 272, was referred to wherein it was said by the Court that a comparison of signature is a mode of ascertaining the truth which ought to be used with very great caro and caution.
13. As regards the opinions of experts on handwriting, the learned Judges observed as follows (at page 504):
It is true that the opinions of experts on handwriting meet with their full share of disparagement at times, but, at any rate there is this use in their employment, that the appearances on which they rely are disclosed, and can thus be supported or criticised, whereas an opinion by a Judge in the privacy of his own room is subject to no such check.
14. In Ramsewak Sahu v. Emperor AIR 1933 Pat 559 it was held as follows:
Where an expert gives his opinion on a signature, the act that he cannot read or write the language in which such signature is made must detract from the value which would otherwise be attached to his evidence. And though it may be of value as corroboration of direct evidence or evidence afforded by surrounding circum- stances, it is hardly in itself sufficient to warrant a conviction
In that case, the handwriting expert claimed to be acquainted with the language concerned viz. Kaithi-Hindi, but admitted that he could not read or write it.
15. In Saqlain Ahmad v. Emperor AIR 1936 All 165, It was held that the value of the expert evidence depended largely on the cogency of the reasons on which it was based, and that in general it could not be the basis of conviction unless it was corroborated by other evidence.
16. In Diwan Singh v. Emperor AIR 1933 Lah 561, it was held that the Magistrate had not acted foolishly or perversely or unreasonably in rejecting the evidence of the two handwriting experts. The learned Judges observed that the claim of one of those two persons to be an expert in handwriting also appeared to be highly pretentious. The following passages were referred to.
17. The passage of Taylor in Law of Evidence (Edition 12) Volume I, page 59, para 58 as under:
Perhaps the testimony which least deserves credit with a jury is that of skilled witnesses. These witnesses are usually required to speak, not to facts, but to opinions; and when this is the case, it is often Quite surprising to see with what facility, and to what an extent, their views can be made to correspond with the wishes or the interests of the parties who call them. They do not, indeed, wilfully misrepresent what they think, but their judgments become so warped by regarding the subject in one point of view, that, even when conscientiously disposed, they are incapable of forming an independent opinion. Being zealous partisans, their belief becomes synonymous with faith as defined by the apostles, and it too often is: 'but the substance of things hoped for, the evidence of things not seen.
18. The passage at page 127 by Ryan on Criminal Evidence has also been referred:
It must be borne in mind that an expert witness, however impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry, so that an expert witness is unconsciously impelled to support the view taken by his own side. Besides, it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interests.
19. In Re: E. Venkata Row, ILR 36 Mad 159, it was held that an accused should not ordinarily be convicted of forgery upon the uncorroborated testimony of a handwriting expert.
20. Daniel Ames in his work on Forgery observes: (at page 1001
Where a handwriting is brought into Question, it is rare that any one thing can determine the point at issue. It is usually by a more or less extended series of things the presence or absence of which creates the decisive preponderance of evidence.
21. In Lalta Prasad v. Kins Emperor 11 Cri LJ114 (Oudh), the Assistant Judicial Commissioner of Oudh refused to convict the accused on the uncorroborated evidence of the hand-writing expert.
22. Dr. Lawson in his work 'On the Law of Expert and Opinion Evidence observed:
The evidence of the genuineness of the signature based upon the comparison of handwriting and of the opinion of experts is entitled to proper consideration and weight....
23. In Srikant v. King Emperor 2 All LJ 444, the learned Judges observed that to base a conviction upon the evidence of an expert is, as a general rule, very unsafe.
24. The following passage In Ratanlal's Law of Crimes' (1956 Edition) is Instructive: (at page 1172)
The Court is competent to use its own eyes for the purpose of deciding whether certain handwritings placed before it are similar or not and the opinion of an expert is only a piece of evidence whereas the opinion of the Judge Is the decision in the case. The opinion of the expert should be substantially corroborated before making it the basis of a conviction..........It is dangerous to come to a conclusion on the Question of forgery on a mere comparison of the writing in a disputed document.
25. The learned Special Judge recognised this position of law and held that the evidence of the expert, P.W. 16 alone was not by itself sufficient to hold that Ex. P-10 was written by A-l. In doing so, he acted rightly and in conformity with law as laid down in the various authorities referred to above. But, he held that there were sufficient circumstances which formed adequate corroboration of the evidence of P.W. 16 and, therefore, concluded that A-l had forged Ex. P-10. (After discussing the evidence, the judgment proceeded.
The conclusion of the learned Special Judge that there is strong and sufficient corroboration of the evidence of P.W. 16 cannot be said to be Incorrect or untenable. I find accordingly on this point.
26. The next contention of Shri A. Ganadhara Rao for the appellants is that Ex. P-l is inadmissible in evidence and was wrongly admitted in evidence and that it was wrongly and unlawfully used for comparison of handwriting. Ex. P-l is written in carbon. P.W. 6, the Assistant Collector of Central Excise has deposed as fellows:
Ex. P-l is a carbon copy. The Range Officers to minimise the scriptory work were tearing off the outer foil and putting it underneath the inner foil with a carbon paper in between and writing the manuscript portion in the inner foil. It is an irregular practice. I pointed out such irregularities in the cases of several Range Officers. I cannot now give their names.
It appears from the evidence that strictly speaking, they foil and the counter-foil ought to have been written independently. If they were so written, each foil would be directly in the handwriting of the officer, who issues it (without being a carbon copy). But, due to the irregular practice followed by the officers to save duplication of their work of writing, the foils happened to be in carbon in this particular case if is not known for certain as to how it was written and in particular whether the foil was kept under a carbon paper which, in turn, was under a counter-foil.
But, in any case, It appears that, even according to the usual practice, the foil used to be given to permit-holder, even though it was in carbon. In fact, Ex. P-l was the piece which was issued and which actually functioned as permit and enabled the transport of tobacco successfully and so as to make a semblance of lawful transport. It is the very document which was handed over to P.W. 3 and which induced P.W. 3 to believe that the consignment was duty-paid tobacco which was validly transported.
To prove the offence concerned in this case, it was . Ex. P-l which was essential and had to be proved. Let us suppose that there was a counter-foil of Ex. P-l written in pencil and that it were also available to the prosecution for filing in evidence. Even then, it would not affect the fact that Ex. P-l was a permit and it was Ex. P-l, and not the counter-foil, which was in fact utilised for committing the offence and was received and acted, on by P.W. 3 and can be identified by him as such and that, therefore, it is Ex. P-l which must be produced in evidence and proved and not the counter-foil.
26a. Section 62 of the Evidence Act runs as follows: 'Primary evidence means the document produced for the inspection of the Court.
The document which is said to have been issued by A-l and which actually functioned in the commission of the offence and which was received by P. W. 3 and can be identified by P.W. 3 is, according to the prosecution, Ex. P-l. So, it was itself primary evidence. Therefore, the contention of the learned Advocate for the accused that Ex. P-l is secondary evidence and that the pencil counter-foil would be the original is not acceptable.
27. In Sarkar on Evidence (Volume I -- Tenth Edition) at page 553, it is mentioned as follows:
Carbon copies produced by type-writers may for all practical purposes be regarded as equivalent, though the impressions on the lower sheets are likely to be imperfect.
They are produced by the same stroke which makes the surface impression. In Federal U.Section Co. v. Indiana L. and M. Co. 176 Ind 328, in the case of a machine carbon copy in triplicate, each one was held an original.
28. Explanation 2 to Section 62 of the Evidence Act runs as follows:
Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
In the present case, if the writer of Ex. P.I has adopt-ed the usual practice, the counter-foil would be in pencil while the foil (Ex. P-l) would be in carbon. If he wanted to save scriptory work, it is open to him to place the foil above the counter-foil and write with pencil. In such case, the foil would be in pencil and the counter-foil would be in carbon. But, it so happened that the usual practice was to keep the foil below the counter-foil so that the foil' would be in carbon and the counter foil would be in pencil. But, from the nature of the preparation of foil and counterfoil, both would have been written simultaneously by the same person and by the same strokes of the same pencil.
29. In Nityananda v. Rashbehari : AIR1953Cal456 , the learned Judge of the Calcutta High Court observed as follows;
As I have already stated, what was sought to be proved out of Ex. 1 was the signature which the petitioner was alleged to have affixed to it. It is, however, not the original signature but a copy appearing on a carbon copy. This carbon copy of the signature may be a piece of secondary evidence within the meaning of Section 63(2), Evidence Act, toeing a copy made by a mechanical process 'which ensures its correctness', but simply because it is secondary evidence of a proper form, it does not follow that the prosecution was entitled to adduce it in evidence all at once.
According to the prosecution, 'the original was in the. possession of the petitioner' and the case, therefore, came under Section 65 Evidence Act, which sneaks of documents in the possession of the party against whom they are sought to be used. But in order that secondary evidence of such documents may be given, it is essential that the procedure laid down in Section 66 of the Act should be strictly complied with.
The procedure there prescribed is that the party desiring to make use of secondary evidence must, in the first instance, serve a notice upon the Party in whose, possession the original may be, requiring him to produce the original and it is only when such notice is not complied with that the right to give secondary evidence arises. There are certain 'exceptions to the rule laid down in Section 66, but it is perfectly clear 'that none of them applies to the present case'.
In that case, the complainant was a private party. Ha himself wrote the body of the receipt and the accuse merely signed it. It was open to the complainant to insist on being given the pencil copy instead of the carbon copy. Still, the complainant's case was that he took the carbon copy. This version of the complainant was commented upon adversely by the learned Judges in the following terms (at page 456):
The 'complainant' came to the Court with the somewhat strange story that he entrusted to the petitioner a quantity of gold of the value of about Rs. 3,000/- and took care to obtain a receipt from him, but that, at the same time, 'he allowed the petitioner', who was the grantor of the receipt, 'to keep the original with him and was himself content to receive only a copy'. The manifestly unusual character of a transaction of that kind was commented on by the defence....
In that case, the learned Judges held that the carbon copy was not a good basis for comparison of signature for the following reasons:
1. There is authority of books like Osborn or Brewster that carbon copies, particularly copies made on carbon paper used in this country, 'cannot generally be relied' upon for purposes of comparison, because the impression made upon such carbon paper is 'generally irregular and blotched'.
2. The deposit on the carbon paper were 'generally wiped off' when the paper was folded with the result that all traces of the distinctive characteristics of the writings on it became blurred.
3. The accused signed his name on the original of the carbon copy with a fountain pen which was unusual as the common practice was to write with a pencil, if carbon copy were to be available.
30. Ground No. 1 states a general proposition, and leaves scope for exceptions in particular cases. The impression in Ex. P-l is not irregular or blotched. It is very clear and was obviously prepared with carbon paper of good quality. So, in this case, Ground No. 1 does not affect the usefulness of Ex. P-l for comparison or identification of writing. Whether in a particular case, a carbon writing would be less clear and less fit for comparison and identification of writing than a writing in pencil would depend upon the comparative qualities of the pencil and carbon paper. If a good pencil were used with a bad carbon paper, the pencil copy would be clearer and titter for comparison than the carbon copy, but the position would be otherwise if the carbon paper was of a; good quality and the pencil of a bad quality. Ground No. 2 also does not apply since, in this case, the carbon copy is good and the impressions are very clear especially as regards the signature. The distinctive characteristics of the writing are all visible and have not become blurred in Ex. p. 1. According to the prosecution, in Ex. P-l not only the signature but the entire writing is in the handwriting of A-1 and therefore, ample material is available for identifying the writing as made in the hand of A-l. Ground No. 3 does not apply to this case for, though it is not known as to whether the counterfoil was in fountain pen or pencil, there is no defect in Ex. P-l. So, that decision is easily distinguishable on facts.
31. In Makhan Lai v. State : AIR1958Cal517 it was held by the Calcutta High Court that a carbon copy of a search list with certain ink writings on it was not admissible under Section 62, Evidence Act. They further observed that, when a mere glance at the document would show that even apart from the ink writings the whole of it could not have been made by one uniform process, it would not satisfy the requirements of Section 62 and other Sections of the Evidence Act. In the present case, there is no contention that there are any ink writings in Ex. P-l or that there is any room for doubting the fact that Ex. P-l as well as its counter foil were made by one writing.
32. In the instant case, Ex. P-l was written and issued by a Government Officer (Accused-1) in his capacity as such Government Officer i.e., public servant. In fact, Ex. P-l was a document issued on behalf of the Central Government as permit. Such permits were being issued, as a general practice, to licensees for transport of tobacco and were being accepted and used by them.
So, there would be nothing unusual or worthy of comment in merchant receiving the permit, Ex. P-l which was written and signed in carbon. When a merchant received a permit in carbon copy issued by the Government, he would be entitled to use it as primary evidence and he need not call for the pencil copy to be filed as original.
33. The prosecution was not in a position to prove by direct evidence as to who was the person to whom A-1 handed over the permit. Ex. P-l. But the prosecution could and did prove that Ex. P-i was not handed over to P. W. 2, the person in whose favour 'it was issued. The learned Special Judge has observed that the T. P. 1 permits were in the nature of cheques because they were evidence of duty having been paid on the tobacco covered by them. This observation is substantially correct, In the case of a cheque issued by a person, the foil is always primary evidence, even if it were prepared by copying from the counterfoil. In this case, Ex. P-l is a permit which was issued, irrespective of the general practice by which a counter-foil (corresponding to each foil) was being written and maintained. I am unable to agree that, in this particular case, Ex. P. 1 was only secondary evidence.
34. Assuming for argument's sake, without admitting, that Ex. P-l is secondary evidence and that the counterfoil was written in pencil and that the counter-foil would be the original, even then, Ex. P-l would be admissible in evidence. The pencil counter-foil along with the other counter-foils in the same book ought to have been in the ordinary course of business left by A-l in the office and ought to be available with the Central Excise Department. There is evidence of an Excise Officer (P.W. 1)that the book was not found in the office of Range No. 3. So, under Section 65 of the Evidence Act, secondary evidence can be given of the contents of that pencil counter-foil when the original has been lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.
If the foil were in the possession of the accused, then he must have got the possession by fraud i.e. taking into possession and retaining something which he ought to have left in the Government records of his office. Under proviso 3 to Section 66 of the Evidence Act, no notice is necessary for producing secondary evidence 'when it appears or is proved that the adverse party has obtained possession of the original by fraud or force'. Hence, i find that Ex. P-l was the primary evidence (as we are concerned in this case with what Ex. P-l contains and not with,what is contained In a counter-foil of Ex. P-l even if there be one) and that even if it were secondary evidence, it was admissible In evidence and was rightly admitted in evidence by the learn-f ed Special Judge.
35. The identity of the signature and handwriting in-Ex. P-l with the signature and handwriting of A-l has been proved by the witnesses, P.Ws. 6, 8, 17 and 18. They all say that they are familiar with the handwriting and signature of A-l, having become acquainted with the writing and' signature in the course of their official duties. (After discussing the evidence (Paras 36-40) His Lordship proceeded:)
I do not see any reason to disagree with the finding, of the learned Special Judge that Ex. P-l is in the handwriting and bears the signature of A-l.
41. Ex. P-2 (a): The writing in Ex. P-2 (a) is to a great extent is in the handwriting of A-l. (After discussing the evidence (rest of Para 41 and Para 42), His Lordship proceeded :)
43. Sri A. Gangadhararao contends that the lower-court was wrong in taking into account against A-l, the fact appearing in the evidence of D.W. 1 that A-l and A-2 were friends. On the question whether the evidence adduced in his defence by one accused can be used against another accused, Courts in India have taken different views.
In Sammun v. Emperor AIR 1926 Lah 627 the Lahore High Court following the decision in Bahoru v. Emperor AIR 1929 All 769 held that the evidence of a defence witness produced by one accused could not be treated as prosecution evidence against the other. In Chatur Bhuj v. Emperor AIR 1931 Lah 57 the same High Court field that statement made by a defence witness against a person other than the one who had called him as a witness could not be considered as if it were evidence led on behalf of the complainant.
44. In Shapurji Sorabji v. Emperor AIR 1936 Bom 154 the Bombay High Court held that there was nothing in the law of evidence or procedure which rendered the statements produced by one accused inadmissible against a co-accused but such evidence should be received with gear caution and regarded with great suspicion, when the witnesses have nothing or little to say which benefited that person who called them and appeared to be introduced merely with the object of strengthening the case against the co-accused. Therein, it was also observed that the co-accused-was under a serious disability inasmuch as he was deprived of the privilege of contradicting the witnesses examined by the police by their former statements as Section 162 Cr. P. C. applied only to prosecution witnesses and he may also be deprived of the benefit of Section 342 Cr. P. C. for although the Court may give him an opportunity of making statements about the evidence, it was not obligatory on the court, under the terms of the Section, to question that accused on such evidence.
45. In Amarnath v. The Crown 42 Pun LR 378 it was observed that, if the particular witnesses concerned had been genuine witnesses, they would have been examined on behalf of the prosecution.
46. A contrary view has been taken by the Lahor High Court in Chaman Lai v. Emperor AIR 1940 Lah 210 wherein Young C. J. held that the testimony of witnesses examined in defence on behalf of one accused and cross examined on behalf of another accused was admissible as against the latter. The learned Chief Justice followed the decision of the Calcutta High Court in Ramchand v. Hanit Sheikh ILR 21 Cal 401.
47. In Aung Than v. The King AIR1 1937 Rang 540 the Rangoon High Court expressed a similar view to that of Young C. J. in AIR 1940 Lah 210.
48. In Nandgopal v. The State AIR 1951 Nag 189 the Nagpur High Court after considering the conflicting decisions preferred to follow the decision of the Bombay High Court in AIR 1936 Bom 154 instead of the decisions in AIR 1925 All 769; AIR 1931 Lah 57; 42 Pun LR 378,- AIR 1926 Lah 627. The learned Judges of the Nagpur High Court observed thus (at page 190).
It seems to us that merely because certain evidence has been adduced in a case not by the prosecution but by one accused, it is not rendered inadmissible against an-other accused. It may be otherwise where that other accused had no opportunity of cross-examining the particular witnesses who have deposed against him or where he has not been given an opportunity by the Magistrate or the Judge to explain the circumstances appearing in such evidence.
Even though that be so, we agree with the learned Judges of the Bombay High Court that when evidence which was available to the prosecution but not produced by them is instead produced by some other accused person, there is no guarantee about its truth, and, therefore, it must be received with caution and regarded with suspicion.
I respectfully agree with the decisions of the Bombay High Court in AIR 1936 Bom 154 and the Nagpur High Court in AIR 1951 Nag 189 in preference to the decisions in AIR 1925 All 769; AIR 1926 Lah 627; AIR 1931 Lah 57 and 42 Pun LR 378. The result is that evidence let in on behalf of A-2 has to be received with great scrutiny and regarded with suspicion but need not be rejected altogether as against A-1.
49. It is obvious that the prosecution was done by the State. It cannot be said that the prosecution delibe-rately omitted or wilfully neglected to let in evidence about this particular fact of friendship between A-l 'and A-2, When D.W. 1 deposed in Chief-examination he (D.W. 1) only said that A-l and A-2 were members of the Officers' Club of which D.W. 1 was the Secretary. A-2 by himself did not elicit in particular that A-l and A-2 were friends. In cross-examination by A-l, it was not suggested that A-l or A-2 was not a member of the club or that they were not members at the same time.
The only suggestion was that P.W. 18 was also a member of the Club and this was willingly stated by D.W. 1. But, in cross-examination on behalf of the prosecution, it was elicited that as members of one and the same club, D.W. 1 and accused were friends. D.W. 1 also deposed : I cannot say if the two accused were intimate friends. I did not see them moving closely'. This fact of friendship can, therefore, he safely acted upon 25 evidence as against A-l.
It is true that no question was put to A-l about this particular fact under Section 342 Cr. P. C. But, this would not materially affect the position of the admissibility of the evidence of D.W. 1 because this has not been challenged in cross-examination. If A-l challenged that statement or D.W. 1, A-l could have cross-examined D.W. 1 about it with permission of Court. But, he did not cross-examine D, W. 1. It has been held in K. C. Mathew v. State of Travanccre, Cochin, : 1956CriLJ444 that ordinarily it would be very difficult to sustain a plea of prejudice unless the Court was told where the shoe pinched. Therein it was observed as follows (at page 244).
If the accused is not afforded that opportunity, he is entitled to ask the appellate court to blame him in the same position as he would have been in had be been asked, In other words, he is entitled to ask the appellate court, which is the ultimate Court of fact, to take the explanation that he would have given in the first court into consideration-when weighing the evidence in just the same way as if would have done if it had been there all along.
It is not urged on behalf of the accused himself on appeal as to how he was prejudiced. So, I find that the evidence of D.W. 1 that he and accused were friends and that A-l and A-2 were members of the Club and the tennis-court could be used as against A-l.
50. On behalf of A-2, it has been urged by Sri A. Bhujanga Rao that value has to be given to the explanation of A-2 as it sounds reasonable. In Aher Raja Khima v. State of Saurashtra : 1956CriLJ426 it was held that when an accused person offered a reasonable explanation of his conduct then, even though he could not prove his assertions, they should ordinarily be accepted unless circumstances indicated that it was false. In Sukhdec tha v. State of Bihar : 1957CriLJ583 the Supreme Court referred to the decision in R. v. Schama, R. v. Abramovitch (1914) 11 Cr. App Rep 45 wherein it was held that in the case of a person prosecuted for possession of recently stolen property, the burden of proof was never shifted to the accused and that if a reasonable explanation was given by the accused, the Jury would have to take that into consideration and if the Jury thought that the explanation might reasonably be true, though they were not convinced about the truth, they should acquit the accused. The decision in (1914) 11 Cr. App Rep 45 was also followed in the case of Daud Shaikh v. King Emperor 40 Cal WN 159. in the present case, the explanation given by A-2 was sought to be supported by letting in defence evidence. The version of A-2 is that A-l told him that he had already approached P. W. 3 for the money and that P.W. 3 had' told him that he would not pay it unless some person already; known to him came and that A-l, hearing that A-2 was in Madras went to P.W. 2, who was a resident of Rajampet and got the letter (Ex, P-10) in which P.W. 2 directed P.W. 3 to give the money to A-2 and so saying A-l handed over Ex P-10 to A-2. It is the case of A. 2 that he came to Madras with D.W, 2 only on the evening of 20-5-1953 and that A-l met him on 21-5-1953 at D.W. 3's house. But the date of Ex. P. 10 is 14-5-1953, A-2 has signed in the accounts of P.W. 3 and received money which were due on a consignment of tobacco which purports to have been dispatched on a permit (Ex. P-l) which was in favour of P.W. 2 and authorised P.W. 2 to transport tobacco. If A-2 was to receive such amount, there must be some reason. It was very unusual for him to receive a letter from the hands of A-l showing that the money due from P.W. 3 to P.W. 2 was to be handed over by P.W. 3 to A-2. A-2 offered an explanation.
That explanation has been considered by the lower court and rightly found to be unacceptable and not probable or reasonable. The evidence of D.Ws. 2 and 3 also has been disbelieved by the lower court properly and for adequate reasons. The evidence of D.Ws. 1 and 4 does not in anyway rebut the prosecution case. I see no reason to disagree With the finding of the lower court regarding the explanation of A-2 and the defence witnesses.
51. P.W. 3 deposed that A-2 turned up before him on 17-5-1953 and gave him the letter (Ex. P-10) and asked him to sell the tobacco and give him the money. He also said that, as A-2 was known to him, he believed that the letter (Ex. P-10) was genuine and gave money to A-2. But the Inspector (P.W. 19) says that P.W. 3 told him that A-2 gave him Ex. P-10 on 21-5-1953 when he received Rs. 750/- from P.W. 3. This agrees with the version of A-2 as to the date on which he gave Ex. P-10 to P.W. 3. The learned Special Judge rightly held that It had to be token that A-2 gave Ex. P-10 on 21-5-1953 and took the sum of Rs. 750/-from P.W. 3 on that date and Rs. 363-9-0 on 27-5-1953.
52. Charge No. 1 as framed by the learned Special Judge runs as follows:
That you, A-l, formerly Inspector of Central Excise, Rajampeta, III Range, and A-2 of Kuchivaripalle, Rajampet Taluk, Cuddapah District, during May 1953 at Rajampet and elsewhere have conspired together to defraud the Central Government of Its legitimate revenue, by A-l of you issuing a fraudulent T. P, I. No. 87703 dated 13-5-1953 in the name of Siddiah -for transport of 2046 lbs. cf tobacco as if duty paid, falsely quoting therein T.P. I. No. //9580 dated 10-5-1953 which was a blank one and intact at the Sattenapalli Circle Office; and forging a letter of authorisation dated 14-5-1953 purporting to have been written by the above said Siddiah of Rajampet to Nataraja Chetti of Madras and that Accused No. 2 of you used the said T.P.1. No. 87703 and transported 2046 lbs. of non-duty paid tobacco in the name of the said Siddiah to the said Nataraja Chetti and obtained from him Rs. 1,110-3-9 by cheating him and 'both of you have thereby committed an offence punishable under Section 120B of I.P.C. and within my cognizance.
The learned Special Judge, who framed the charge has shown in his judgment that he meant by the charge that the (conspiracy had two objects: (1) to defraud the Central Government of its legitimate revenue; and (2) to transport tobacco, cheat P.W. 3 and receive money from him.
53. Mr. A. Gangadhara Rao for A-l has argued that there was only one object of conspiracy indicated in Charge No. 1. namely, the first object as numbered above. His contention cannot be accepted for the following reasons:
(a) The learned Special Judge who framed the charge has himself interpreted and treated that there were two objects in the charge of conspiracy. (Vide para 24 of the trial Court's judgment).
(b) The conspiracy would not be beneficial or yielding results unless its object had also been to cheat P.W. 3 and receive money from him.
(c) There was no need to mention cheating of P.W. 3. in charge No. 1 unless it was an object of the conspiracy.
54. In this case, the offence of conspiracy is said to have been committed in May 1953. The complaint was made on 17-3-1954. The F. I.R. was filed on 25 9-1954. The charge sheet was filed on 26-7-1956.
55. Section 40(2) of the Central Excises and Salt Act Central Act I of 1944) runs as follows: '40 (2). No suit, prosecution, or other legal proceeding shall be instituted for 'anything done' or ordered to be done 'under this Act' after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained of.
56. In the Public Prosecutor v. Abdul Hameed Khan, Unreported Judgment of this Court D/- 20-9-1960 in Crl. A. Nos. 509 to 513 of 1958 (AP) now reported in 1963(2) Cri LJ 202 I have held, after an elaborate discussion of the relevant law on the subject including the decision in Satwant Singh v. State of Punjab : 2SCR89 , that conspiracy such as concerned in this case by issue of permits by A-l in favour of A-2 with object of defrauding the Central Government of its legitimate revenue was barred by Section 40(2) as regards A-l (official) and Rule 207 regarding A-2 (non-official) under similar circumstances. In that decision, I observed:
In each of the present cases, as the act concerned in the first object of the conspiracy is only by way of issue of permit, it would come under the category of offences regarding which the sole act of the public servant concert-ed which constitutes the offence and every act which is necessary to constitute the offence cannot but be done by him in his of0ficial capacity or in discharge of his duties. Consequently, Section 40(2) would be applicable.
I have also found that the charge of conspiracy with the object of cheating a merchant such as concerned in this case would come under the category of offences regarding which the sole act or any one of the acts which is necessary to constitute the offence cannot be done in discharge of official duty. In that case, the additional elements which are necessary to prove the second object of the conspiracy had not been proved. Accordingly, I held that so far as the second object in the conspiracy was concerned, the prosecution of the accused was not barred under Section 40(2).
57. In this case, the date of the issue of the permit as well as transport was in May, 1953 and the prosecution was done much more than six months afterwards. The issue of the permit by A-l was a thing done by him under the Act. Consequently, he cannot be prosecuted for the issue of the permit. So, the prosecution of A-l for the issue of the permit was barred under Section 40(2). When the prosecution for such issue was barred, the prosecution, for the conspiracy also was barred so far as that particular object was concerned.
But as regards the second object of the conspiracy, the prosecution is not barred under Section 40(2) because it involved certain acts which were not things done under the Act and need not be done in official capacity, the official status furnishing only an occasion or opportunity for the commission of the offence and such acts have been proved in this case.
58. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable. When two agree to carry it into effect the very plot is an act in itself, and the act of each of the parties, promise against promise actus contra actum capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means. Vide the definition of Wiles. J. in Mulcany v. R. (1368) 3 H.L. 306 at p. 318. This definition forms the foundation of Section 120BI.P.O. The gist of the offence of conspiracy lies not in doing the act or effecting the purpose for which the conspiracy is formed, nor in attempting to do any of the acts nor in inducing others to do them, but in the forming of the scheme or agreement between the parties. It is no doubt true that sometimes it is difficult for the Courts to decide whether a particular agreement which forms the basis of a criminal charge was made or concluded at a particular time or at a particular place. But the factum of the criminal agreement should not be confounded with its proof. So far as proof goes as said by Gross, J. in Rex v. Brisac (1803) 4 East 164 at p. 171.
Conspiracy is a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance I of an apparent criminal purpose common between them.
59. In this case, there is no direct evidence of conspiracy between A-l and A 2. The matter has to be decided from the facts proved which form circumstantial evidence. It is proved that A-l prepared the' bogus permit (Ex. P-l) of date 13-5-1953 intentionally in the name of P.W. 2. He also forged Ex. P-10 of dated 14-54953 to enable A-2 to receive the money from P.W. 3 as the transport permit was drawn In P.W. 2's favour and enabled only P.W. 2 to trans. port tobacco from Rajampet to Madras. A-2, who is a man of Rajampet, turned up at the shop of P.W. 3 at Madras, which is at a considerable distance from Rajampet, with Ex. P-10 on 21-5-1953 and received payment. Ex. P-10 showed that the money was really due to P.W. 3 from P.W. 2 and that it was to be sent to P.W. 2 through A-2. But, it is the case of A-2 that he handed over the money to A -1 and it is not his case that he handed over to P.W. 2. It Is proved that P.W. 2 did not send any tobacco and he did not receive any amount. The explanation of A-2 that the received Ex. P-10 when he was at Madras on other private business is found to be unbelievable and not true.
60. Beyond doubt, tobacco was transported under a bogus permit (Ex. P-l). There is no direct evidence as to who transported this tobacco. It is not the case of A-2 that he took any receipt from A-l for payment to A-l for the money which he (A-2) had received from P.W. 3 after signing in P.W. 3's books though P.W. 3 gave it to A-2 for feeing paid to P.W. 2 in view of the letter (Ex. P-10) which had been produced by A-2 before P.W, 3. From the evidence, it has to be gathered that A-2 must have derived benefit by collecting this amount.
Benefit could and did result to A-l and A-2 only by all the three following items being done: (i) Preparation of documents, Ex. P-l and P-10 by A-1: (ii) Transport of tobacco under the permit, Ex. P-l from Rajampet to Madras; and (iii) Transport of tobacco, under the permit, Ex. P-l from Rajampet to Madras, and Collection of Money by A-2 from P.W. 3 at Madras. The evidence clearly establishes that A-l did item (i) and A-2 did item (iii). It is practically certain that both of them must have co-operated in carrying out item (ii). Item (i) by itself would not yield beneficial results, without items (ii) and (iii) being clone. Item (iii) could not be done without items (i) and (ii) being done. Item (ii) could not be done without item (i) being done regarding preparation of bogus permit, Ex. P. 1. The three Items form a closely Inter-linked series which could not have been done except by conspiracy between A-l and A-2.
61. On the basis of these, it has to be seen whether the convictions by the lower court on the various charges are tenable.
Charge No. 1: This charge Is barred as regards the first object and is proved and tenable as regards the second object. I accordingly confirm the conviction of A-l and A-2 only regarding the second object under Section 120B IP. C. The lower court did not award any separate sentence on this charge, holding it unnecessary for adequate reasons. CHARGE No. 1 (a) : The act concerned in this is the act of A-l issuing a bogus permit, Ex. P-l and delivering it to A-2. Every act of. preparing bogus permit (Ex. p-1 is an act done by A-l in his official capacity under the Central Excises and Salt Act (I of 1944). Therefore, the prosecution of A-l is barred regarding this charge. So, I set aside the conviction and sentence of A-l and acquit him of this charge.
62. Charge No. 1 (b) : The act of A-2 concerned in this charge namely, inducing or otherwise abetting A-l to abuse his official position is not a thing done by A-2 under the Central Excises and Salt Act. He is not entitled to any prosecution under Section 40(2) or any other provision in the Act or the Rules framed thereunder. In this case, but for Section 40(2), A-l would be guilty of the offence under Charge No. 1 (a}. A-l is acquitted of the charge only because the prosecution is barred under Section 40(2). There is no such protection to A-2 for abetment of the offence concern* ed in this charge.
This charge is proved against A-2. So, 1 confirm the conviction of A-2 under this charge.
62a. Charge No. 2 : The maintenance of the Register, Ex. P-2 was done by A-l under the Act I of 1944. Falsification under Section 477-A I.P.C. of this Register amounts to a thing done under the Act and, therefore, A-l is not guilty of the offence. Even otherwise, as A-l has shown the number of books received as '10' in Columns 3 and 10 and also shown entries in them. It cannot be said that A-l intentionally falsified the account. So, I set aside the conviction and sentence and acquit A-l of this charge.
62b. Charge No. 3 : It is clearly proved that A-l forged Ex. P-10 a letter of authorisation dated 14-5-1953 as if it were written and signed by P.W. 2 to P.W. 3. I therefore confirm the conviction of A-l under this charge.
63. Charge No. 4: From the discussion which I have already made, it is clear that A-l is guilty of an offence under Section 420 read with Section 109 I.P.C. for abetting A-Z in the commission of the offence under Section 420 I.P.C. concerned in Charge No. 5. So, I confirm the conviction of A-l on this charge,
64. Charge No. 5 : It is proved that A-2 cheated Nataraja Chetty (P.W, 2) by preducing a bogus permit (Ex. P-l) and making him (P.W. 3) believe that the tobacco which P.W. 3 received was duty paid tobacco and thereby induced P.W. 3 to deliver a sum of Rs. 1,110-3-9. I, therefore confirm the conviction of A-2 on this charge.
65. Charge No. 6: It is proved clearly that A-2 used the forged letter (Ex. P-10) and obtained from P.W. 3a sum of Rs. 1,110-3-9 and that he must have known that it was a forged letter. I, therefore, confirm the conviction of A-2 on this charge.
66. The action of the accused in retaining a book of permits issuing bogus permits, forging letter and cheating a merchant is highly reprehensible. But, all the same, the following alleviating features deserve consideration as regards the sentence. The offence took place so long as the year 1953. The complaint was laid on 17-8-1954, and the proceedings in Court have themselves gone from 26-7-1956 to 13-2-1958 and the case has been pending against the accused all the time. The learned Advocate for A-l also says that A-l was kept under suspension and ultimately dismissed from service. In view of the special circumstances, mentioned above, I consider that a sentence of one year rigorous imprisonment under each of the charges confirmed above is sufficient to meet the ends of justice as regards each of the accused.
67. As regards A-l, I confirm the sentence of one year rigorous imprisonment under Charge No. 3 and reduce the sentence to one year rigorous Imprisonment under Charge No. 4. A-l is acquitted of Charge Nos. l(a) and 2.
68. As regards A-2, I reduce the sentence to one year rigorous imprisonment under charge No. 1 (b). I also reduce the sentence to one year R.I. under Charge No. 5, I confirm the sentence of one year rigorous imprisonment under Charge No. 6.
69. The sentences as regards each of the accused Will run concurrently. The sentences on A-l will also run concurrently with the sentences of A-l in C.A. No. 97/1958 (C.C. No. 2 of 1956 on the file of the Special Judge, Chittoor). Order accordingly.