Anantanarayana Ayyar, J.
1. Each of these appeals have been filed by the Public Prosecutor against the acquittal of both the accused concerned in the lower appellate Court. There are two accused in each of these cases. The first accused is Abdul Hameed Khan, He was the Central Excise Inspector alias Range Officer in charge of Puttur Range with head-quarters at Puttur during the relevant period i. e., 1951-52. The second accused in each of these cases is a tobacco merchant residing at Kuchivaripally about two miles from the town of Rajampet, Cuddapah District and held a wholesale licence which is called L-2 licence. The following tabular statement gives the details:
Appeal No. in the C. C. No. in the trial Appeal in the lower Name of the 2nd
High Court Court. appellate Court. accused.
Crl. Appeal No. C. C. No. 213/1957. Cr. A. Nos. 13 & 14 of A. Pitchayya. T.
509/1958. Crl. A. C. C. No. 214/57. 1958. Crl. A. Nos. 15 & Pitehayya. K.
No. 510/58. Crl. A. CO. No. 215/57. C. 16/58. Crl. A. Nos. 17 & Vemayya. K. V.
511/58. Crl. A. C. No. 216/57. C. C. 23/58. Crl. A. Nos. 18 & Subbayya. D.
512/58. Crl. A. No. 217/57. 19/58. Crl. A. Nos. 20 & Pallayya.
The police charge-sheet was filed in each of the cases by the Delhi Special Police Establishment, Hyderabad Branch, charging the accused with various offences before the District Magistrate, Chittoor. These cases ultimately came to be tried by the Judl. Special First Class Magistrate, Chittoor. He framed three charges against the accused in each of the cases. He convicted and sentenced them to various terms of imprisonment. Each of the accused filed an appeal against his convictions and sentences in the Court of the Sessions Judge, Chitoor. The latter allowed each of the appeals in full and set aside the convictions and sentences on each charge and completely acquitted each of the accused in each appeal. The Public Prosecutor has thereupon filed these appeals against the acquittal.
2. The charges in all the cases are similar. The nature of the evidence is also similar, The evidence, especially the official evidence which proves the background of the alleged offences including the law and rules as well as official routine and practice is substantially similar in all the cases. But, there is some difference as between the various cases regarding the details of facts. Also, the offences in each case relate to certain permits concerned in that particular case. Several of the witnesses, especially the Excise Officers, who spoke to the law and rules, the procedure which has to be followed according to law and the procedure which was in fact followed as well as the investigation done into the various offences, are the same. But, in view of the fact that the permits are different and relate to different persons in each case, there are some witnesses deposing in that case alone without deposing in the other cases. All the appeals were heard together by common consent. This common judgment is also written by common consent,
3. Criminal Appeal No. 509 of 1958 has ultimately arisen out of the trial in C. C. No. 213/j 1957. That C, C. contains evidence in a most elaborate form. Most of the documents, which have been marked in all the other cases, have been marked in C. C. No. 213 of 1957 also. For purposes of convenience, the arguments of the learned Public Prosecutor as well as the Advocates for the accused in all the appeals were concentrated and centred on Criminal Appeal No. 509 of 1958 as the main appeal, in dealing with the features common to all the appeals. In addition, the special features in evidence in the other appeals were individually dealt with by them. Accordingly, for purposes of convenience, I am dealing with Criminal Appeal No. 509 of 1958 in the first instance as representative of all the appeals. In the later portion of the judgment, I deal with the various other appeals briefly one by one with reference to the features in evidence and law special to them. The findings and conclusions in each appeal are based on the evidence relating to the appeal.
4. Criminal Appeal No. 509 of 1958. The charges framed in this case are as follows:
That you A-1, formerly Inspector of Central Excise, of Puttur Range, Chitoor District, during the years 1951-52 and A-2 a tobacco Hcencee L-2 No. 41/46 of Kuchivaripalle, Rajampet Taluk have conspired together at Puttur and Kuchivaripalli during the said period 'to deprive the' Central Government of its legitimte revenue by A-1 of you issuing 'bogus T. P, is No. 801924 dated 4-9-1952 for 3800 lbs of tobacco, No. 801933 dated 16-9-1962 for transport of 5785 lbs of tobacco, No. 801963 dated 21-10-1952 for 2932 lbs and No. 81996 dated 26-11-1952 for 2914 lbs. of tobacco in the name of K. Laxmana Chetty L-2 No. 3/46 Keelapet, Puttur Range, Chittoor District, by quoting false documents as payment of duty and handed over them to A-2 of you and on the said bogus documents No. 2 of you obtained fresh T. P. .i's, Nos. 585376, 585385 and 585387 and transported non-duty paid tobacco noted in the said T. P. is to the premises of V. C. Pannappi Chetti, P. Bhoopathy Chetty and V. A. Nataraja Chetty of Madras and thereby contravened the provisions of Section 9 of the Central Excises and Salt Act (I of 1944) and further conspired to cheat the aforesaid persons by making them part with monies on false representation that the said T. P. is are valid and tobacco covered thereunder are duty paid as detailed in the charges below and thereby committed an offence punishable under Section 120B of the Indian Penal Code and within my cognizance.
That in pursuance of the said conspiracy No. 1 of you being an Inspector of the Central Excise of Puttur Range during the years 1951-52 and holding the said post issued false T. P. is No. 801924 dated 14-9-1952 and 801933 dated 16-9-1952, 801963 dated 21-10-1952 and 801996 dated 26-11-1952 and gave them to A-2 Pitchayya at Puttur abetted the commission of offence of cheating by the said T. Pitchayya which was committed in consequence of your abetment and you thereby committed an offence punishable under Section 109 of the Indian Penal Code read with Section 420 of the Indian Penal Code and within my cognizance.
That in pursuance of the said conspiracy you A-2, a tobacco licensee L-2 No. 41./.56 while holding, the licence cheated by false representation. V. C. Ponniah Chetty, P. Bhoopathy Chetty and V. A. Nataraja Chetty of Madras by selling to the above said persons non-duty paid tobacco as if duty paid, particulars of which have been noted in charge No. 1 and dishonestly made them part with as follows: V. C. Poonappa Chetty Rs. 1686-8-9. Rs. 1895-14-0 and Rs. 746-11-9, V, A. Nataraja Chetty Rs. 1512-7-8 and P. Bhupathy Chetty Rs. 2253-9-3, Rs. 1888-7-6 and Rs. 600-11-9 and thereby committed an offence punishable under Section 420 of the Indian Penal Code and within my cognizance.
In charge No. 1, the objects of the conspiracy are stated, as follows:
1. To deprive the Central Government of its legitimate revenue by the method mentioned in the charge; and
2. To cheat the merchants of Madras mentioned in the charge.
Charge No. 2 relates to alleged abetment by A-1 of the offence concerned in the third charge which was committed by A-2. The offence committed under Charge No, 2 is also mentioned to have been committed by A-1 in pursuance of the conspiracy.
Charge No. 3 relates to what is said to have taken place (Offences committed by A-2) in pursuance of the second object of the conspiracy.
5. (After narrating the- prosecution evidence and the case put forward by it. and referring to the defence evidence His Lordship proceeded:) The learned Special First Class Magistrate believed the evidence of the P. Ws. especially the evidence of P. W. 7 and the official witnesses and held that all the three charges were proved against the respective accused. He accordingly convicted and sentenced them to various terms of imprisonment.
6. On appeal, the learned Sessions Judge disagreed with the finding of the trial Court and acquitted each accused of the charges framed against him. In particular, the learned Sessions Judge held that P, W. 7 was not a reliable witness and rejected the contention made on behalf of the prosecution that the mention of the various sale notes in each of Exs. P-2, P-4, P-5, P-6, P-7 and P-8 was an interpolation which did not exist originally at the time of the enquiry by the officers and at the time when they were marked in the trial Court and were introduced some time after the trial was over and the appeals were heard.
7. In this Court, a preliminary objection was raised by the learned Counsel for the accused that the prosecution was barred by Section 40(2) of the Central Excises and Salt Act (Central Act I of 1944). This point had not been raised in the trial Court or in the appellate Court, but it was allowed to be raised here, as it was a question o law based on facts which were already on record and beyond dispute and because it was an important point.
x x x
8-9. Section 40 (1) and (2) of the Central Excises and Salt Act (Central Act I of 1944) runs as follows:
Bar of suits and limitation of suits and other legal proceedings:
40. (1) No suit shall lie against the Central Government or against any officer of the Government in respect of any order passed in good faith or any act in good faith done or ordered to be done under this Act.
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.
10. The learned Public Prosecutor has contended that Section 40(2) does not apply to prosecution by the State and that it would apply only for prosecution by private parties, that is, not the State. I am unable to accept this contention for the following reasons:
1. The wording of Section 40(2) does not I show that it is meant to apply only to prosecution ( by private parties and not by the State.
2. Rule 207 specifically mentions that a complaint shall be made only by an officer not inferior in rank to an Inspector, that is, by a public servant. Consequently, the prosecution contemplated under this rule- is only by the State.
3. Offences under Section 9(b) and other offences are liable to detrimentally affect the revenues of the State. It is quite natural that the State would be primarily interested in enforcing the Central Excise Act and its provisions and in proceeding against persons who contravened provisions of the Act or rules framed tinder the Act 01 notifications issued under the Act.
4. Regarding the provision under Section 53 of the Madras District Police Act which is substantially similar to Section 40(2) of the Central Excises and Salt Act in relevant aspects, prosecution by the State was held to be barred by time (Vide In Re Venugopal, Unreported decision of a Full Bench of this Court in Criminal Appeal Nos. 551 of 1958 and 74 of 1959 : (now reported in : AIR1961AP370 ).
11. In C. A. No. 509 of 1958 the thing which was done under this Act and which is concerned in the charges is the issue of the various permits, Exs. P-2 to P-5 by A-1 in favour of P. W. 7. The permits were issued between the dates 4-9-1952 and 26-11-1952. The other subsidiary permits which are concerned in Criminal Appeal Nos. 510 to 513 namely, Exs. P-6 to P-8 and Exs. P-18 to P-21 were issued between the dates 8-9-1951 and 27-8-1952, The Charge-sheets in all these cases were filed on 7-7-1956, that is, after lapse of much more than the six month's period mentioned in Section 40(2). Consequently, if Section. 40(2) applies to the prosecution, either as regards A-1 or as regards A-2, to that extent, the prosecution would be barred and the convictions and sentences would be untenable.
12. The learned Counsel for each accused contends that the prosecution is barred as against that accused. On the other hand, the learned Public Prosecutor contends that Section 40(2) is not applicable to this case.
13. The wording of Section 40(2) is similar to the wording in Section 53 of the Madras District Police Act in relevant particulars. The latter section runs as follows:
All actions and prosecutions against any per-son, which may be lawfully brought for anything done ... under the provisions of the Act ... shall be commenced within three months after the act complained of shall have been committed....
14. The question of application of Section 53 of the Madras District Police Act came up for consideration in an Unreported decision of a Full Bench of this Court in Criminal Appeal Nos. 551 of 1958 and 74 of 1959 (now reported in : AIR1961AP370 ). In that case, two questions were referred to the Full Bench, as follows:
1. In what circumstances could the bar of limitation prescribed by Section 53 of the Madras District Police Act be available to an accused officer?
2. In the circumstances of this case, is the prosecution of the appellants barred by limitation by reason of the provisions of Section 53 of the Madras Police Act?
The facts of that case related to something which was alleged to have been done by some police officers- viz., extortion of a confession and wrongful confinement of a person, in the course of investigation. The Full Bench answered the first question in the following terms:
We would, therefore, answer the first question referred to us by saying that the bar of limitation prescribed by Section 53 of this Act would be available to an accused officer only when the act complained of has been committed in the discharge of his official duties.
They also laid down 'that the question as to whether a particular act would be regarded as having been done in the discharge of one's duties would have to be determined on the facts and particular circumstances of the case'. Consequently we have got to decide as to whether the act which is alleged to have been done by A-1 was done in the discharge of his official duties. To decide that point, the relevant facts and particular circumstances of the case have to be considered. The question whether a person was acting in the discharge of his duties is directly concerned in Section 197 Cr. P. C. which required previous sanction of the Government for prosecution. That Section relates to cases 'when any public servant ............... is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'. The question as to when and under what circumstances a public servant can be said to have acted in the discharge of his official duty has been the subject of many decisions, which are, therefore, available for guidance of this Court in coming to a decision.
15. In Hori Ram Singh v. Emperor, AIR 1939 FC 43 it was observed as follows (at page 56):
I would observe at the outset that the question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances, it seems neither useful nor desirable to paraphrase the language of the section in attempting to lay down hard and fast tests.
16. Though there are no hard and fast tests, a perusal of the various decisions indicate as to what are the features which can be usefully considered in deciding this question of fact and the correct approach.
17. In AIR 1939 FC 43, the Federal Court laid down the following test (at page 51):
The test appears to be not that the offence is capable of being committed only by a public servant and not by any one else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty.
18. In H. H. B. Gill v. The King, AIR 1948 PC 128, the Privy Council observed as follows (at page 133):
A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty ... The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office,
19. In Ramayya v. State of Bombay, : 1955CriLJ857 , the Supreme Court observed (at page 292) thus:-. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.
X X X. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done; in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it.
20. In Amrik Singh v. State of Pepsu, : 1955CriLJ865 , it was stated that the test to apply is whether the acts with which the appellant ' is charged directly bear on the duties which he has got to discharge as a public servant. Therein, it was observed as follows (at page 312):. If the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office ...; and that would be so irrespective of whether it was, in fact, a proper discharge of his duties....
The Supreme Court held that the acts complained of should be integrally connected with the duties' attaching to the office and should hinge on his duties as a public servant.
21. In Matajog Dobey v. H.C. Bhari, : 28ITR941(SC) , the following principles were laid down by the Supreme Court (at page 45):
(a) there must be a reasonable connection between the act and the discharge of official duty;
(b) it does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What the Court must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.
22. In Satwant Singh v. State of Punjab, : 2SCR89 , the Supreme Court laid down the following principle:. The act must bear such relation to the duty that the public servant could lay a reasonable but cot a pretended or fanciful claim, that he did it in the course of the performance of his duty....
23. In AIR 1939 FC 43 the facts were as follows: A Sub-Assistant Surgeon was charged under Section 409 I.P.C. with having dishonestly removed certain medicines from a hospital which was under his charge, to his own residence, and under Section 477A with having failed to enter them in the stock book. It was found as a matter of fact that the accused had committed secret misappropriation or conversion to one's own use. It was held by the Federal Court that 'when a public servant simply embezzles some property entrusted to him and thereby commits a criminal breach of trust under Section 409, he is not doing an act, nor even purports to do an act in execution of his duty; when he commits the act, he does not pretend to act in the official discharge of his duty. In the same decision, the learned Judges have shown the distinction between an offence under Section 477A I.P.C. and the offence like Section 409 I.P.C. As regards Section 477A it was observed that, 'the official capacity is involved in the very act complained of as amounting to a crime, because the gravamen of the charge is that the accused acted fraudulently in the discharge of his official duty'. Therein, it was further observed as follows:. But an offence under Section 477A I. P. C, is committed if an officer or servant or anyone employed or acting in such capacity, wilfully and with intent to defraud falsifies any book or account. Thus, where it is his duty to maintain a record or a register, and in maintaining that register he makes some entries which are false to his knowledge, he is certainly purporting to act; though not actually acting, in the execution of his duty because he is making certain entries in the register, knowing them to be false. He is ostensibly professing to be discharging - his official duty in maintaining the register, which he is bound to maintain correctly. In making the entries he pretends or purports to act in the execution of his duty; but in point of fact he is acting in direct dereliction of it,
On the other hand, as regards an offence under Section 409 I.P.C. the learned Judges pointed out that 'the official capacity is material only in connection with the entrustment and does not necessarily enter into the later act of misappropriation or conversion, which is the act complained of. The learned Judge also made observations which are of some importance and help in the present case (at page 52) as follows:-
It is possible to conceive of a case where a criminal breach of trust may be committed in conspiracy with other servants and payment of money is dishonestly ordered ostensibly in execution of duty. The question whether the act purported to have been done in execution of duty or not must depend on the special circumstances of each case ... If the present case had merely been that medicines were openly removed from the hospital dispensary to the house on some pretence, it might have remained ambiguous whether the act purported to be done in execution of duty or not. But apparently the case as put forward in the compounder Din Mohammad's application submitted with the police report, and also as found proved by the Magistrate at the trial was one of secret misappropriation or conversion to one's own use,
That case related to an offence under Section 409 I. P. C, in which the act of disposal would come under the category of offences in which the sole act or any one of the acts necessary to constitute the offence can or cannot be done by the public servant in discharge of his official duty, depending upon the facts and circumstances of the case.
24. In AIR 1948 PC 128, the accused was charged under Section 161 I.P.C. with taking bribes and under Section 120B I.P.C. with conspiracy. On the question whether sanction was necessary under Section 197(1) Crl. P. C. it was held by the Privy Council that, as the acts with which the accused was charged could not be justified by virtue of his office, no sanction was necessary.
25. In each, of the present cases, as the act concerned in the first object .of the conspiracy if only by way of issue of permit it would come under the category of offences regarding which the sole act of the public servant concerned which constitutes the offence and every act which is necessary to constitute the offence cannot but be done by him in his official capacity or in discharge of his duties. Consequently, Section 40(2) would be applicable.
26. In : 1955CriLJ857 the accused, who were Government servants, were in charge of the stores which were kept in the Military Engineering Stores Depot. They had been entrusted with the stores in various capacities, entered into a conspiracy to defraud Government of these properties and in pursuance of this conspiracy 'they arranged to sell them to the approver (P. W. 1) for a sum of RSection 4,000/-. The money is said to have been paid and then the stores were passed out of the depot. The money is alleged to have been pocketed by the three accused and not credited to the Government. A number of charges were framed including criminal breach of trust in furtherance of the common intention of all under Section 409 I, P. C. read with Section 34 I.P.C. The Supreme Court observed as follows in para 19 (page 293):
We have, therefore, first to concentrate on, the word offence.
Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established....
Therefore, the act complained of, namely the disposal could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because accused 2 could not dispose of the goods save by the doing of an official act, namely official permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it ...
In the present case, the concerned act committed by A-1 was in effect, permitting transport just as in that case the concerned act was permitting disposal.
27. The same view has been followed in a number of other decisions -- : 1955CriLJ865 and Dhannjay Ram v. M. S. Uppadaya, : 1960CriLJ1153 .
28. In : 2SCR89 the relevant facts were: After the evacuation of Burma the Government was located at Simla. In response to a Notification by the Government of Burma, one Satwant Singh submitted certain claims on the basis of having executed some works and contracts and supplied some materials in Burma. The Government of Burma sent these claims to one Major Henderson of Jhansi in March and May 1943 for verification, as he was the officer who had knowledge of these matters. Major Henderson certified many of these claims to be correct, with the result that Satwant Singh was able to collect money on the claims from the Government. The appeal was filed by Satwant Singh alone and not by Major Henderson. It was contended that the absence of sanction under Section 197 Cr. P. C. vitiated the trial. The Supreme Court observed as follows at page 271:. Henderson was charged with intentionally aiding the appellant in the commission of an offence punishable under Section 420 of the Indian Penal Code, by falsely stating as a fact in his report that the appellant's claims were true and that statement had been made knowing all the while that the claims in question were false and fraudulent and that he had accordingly committed an offence under Section 420/109 Indian Penal Code. It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants, while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence punishable under Section 161 of the Indian Penal Code is one of them and the offence of cheating or abetment thereof is another. We have no hesitation in saying that where a public servant commits the offence of cheating or abates another so to cheat, the offence committed by him is not one while he is acting or 'purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences. The act of cheating or abetment thereof has no reasonable connection with the discharge of official duty ..................... It is however to be remembered that Henderson was not prosecuted for any offence concerning his act of certification. He was prosecuted for abetting the appellant to cheat. We are firmly of the opinion that Henderson's offence was not one committed by him while acting or purporting to act in the discharge of his official duty.
29. The position of law can be summed up thus:
There are various statutory provisions giving protection to public servants; some by way of requiring sanction by Government or other higher authority for prosecution and some by way of imposing a period of limitation within which action has to be taken. Some of the statutory provisions postulate specified offences being committed in execution of duty or discharge of official duty. Some other provisions specify the act being done by the public servant under a statute. Both types of provisions are substantially to the same effect and the important criterion is whether the act was done in the discharge or purported discharge of official duty and the act must be an official act. It has got to be seen whether the act was integrally connected with the duties and was inseparable from the duties and that the duties did not furnish a mere occasion or an opportunity for committing the act. The mere fact that the act is an offence is not sufficient to decide the question whether the protection is available.
30. An alleged act committed by a public servant concerned can come under three categories:
1. Act which cannot but be done in official capacity and in discharge of duty. See AIR 1939 FC 43.
2. Act which from its very nature cannot be done in discharge of duty.
3. Act which may or may not have been committed in the discharge of duty dependent on the relevant facts and circumstances of the case, See Albert Westmeads v. The King, AIR 1948 PC 156.
31. When it comes to a question as to whether an offence was committed by the public servant in discharge or purported discharge of his duties, such offences themselves can come under three categories similar to the act:
1. Offences regarding which the sole act of the public servant concerned which constitutes the offence and every act which is necessary to constitute the offence cannot but be done by him in his official capacity or in discharge of his duties (e.g. an offence under Section 477A, I. P. C.)
2. Offences regarding which the sole act or any one of the acts which is necessary to constitute the offence cannot be done in the discharge of his duties (e.g. offences under Sections 420 and 161 I. P, C. mentioned in : 2SCR89 ).
3. Offences in which the sole act or any one of the acts which are necessary to constitute the offences can or cannot be done by the public servant in the discharge of his official duties according to the facts and circumstances of the case.
32. Where the basic question is about an act done by a public servant, one has to see under what category it falls. If it comes under category 1 or category 2, the answers will be obvious. If it comes under category 3, the answer will have to be made with reference to surrounding facts and circumstances.
33. When the question is as to whether the statutory protection is applicable to an offence, the following procedure appears to be indicated by various decisions:
1. It has to be seen what are the elements which constitute the alleged offence.
2. It has to be seen as to whether the acts of the accused make out the elements necessary to constitute the offence.
3. Where the acts committed by him do not constitute all the necessary elements for making out the offence, then obviously the offence would not be made out.
4. If it is found that he committed all that acts or the sole act which constitutes the offence it has to be seen as to under what category, the offence fails. If it falls under category (1) o: category (a), the inference will be obvious. If i falls under category (3), then correct finding ha to be arrived at by careful study of the relevan facts and circumstances.
34. In the present case, Charge (3) agains A-1 is for an offence under Section 420 read wit Section 109 I.P.C. This would come under category (2). For, the : offence of abetment of cheating, under Section 420 read with Section 109 I.P.C. concerned in Charge (3) has been specifically mentioned as, such in AIR 1960 SC 261
One element concerned in this offence, namely, issuing of the permits by itself is of the nature of category (i) because such issue can be done by A-1 only in his official capacity. But, that will not bring the offence under category (i) because that element alone cannot make out the offence of abetment of cheating under Section 420/109 I.P.C. There are other elements involved which do not come under category (1) or category (2). Those elements depend on facts and circumstances of the case.
35. Charge No. 1. is under Section 120B I.P.C. That charge specifically mentions the following two subjects:
1. To deprive the Central Government of its legitimate revenue by A-1 issuing false T. P. is.
2. To cheat the specified persons by making them believe through false representations that the T. P. is were valid and thereby making them part with money.
So far as the second object is concerned, it is cheating which is mentioned in Charge No. 2 against A-2 and in Charge No. 3 against A-1, The offence of cheating comes under category (2). So far as the first object is concerned, the object of depriving the Central Government of its legitimate revenue is an act contemplated in the offence under Section 9 (b) and (d) of Act I of 1944 which comes under category (1) The specific act which A-1 is alleged to have committed by issuing the bogus permits comes under category (1) because he could or could not have issued the permits except in his official capacity and beyond doubt or dispute he did issue them in the discharge of his official duties, irrespective of his motive or intention in issuing them.
36. So far as Section 40(2) of Act I of 1944 is concerned, the question of intention or motive does not come in, to decide whether the act of the issue of permits was under Act I of 1944. For, as observed in : 1955CriLJ857 ; if the issue was innocent it was the innocent doing of an official act; and if it was dishonest it was the dishonest doing of an official act.
37. In Raleigh Investment Co., Ltd. v. Governor-General-in-Council, 1947-2 Mad LJ 16 : AIR 1947 PC 78 the question arose as to what was the meaning of the phrase 'assessment made under the Act' and their Lordships of the Privy Council observed as follows: (at page 19 of Mad LJ): (at p. 81 of AIR):. The obvious meaning and in their Lordships' opinion the correct meaning of the phrase 'assessment made under the Act' is an assessment finding its origin in an activity of the assessing officer acting as such. The circumstance that the assessing officer has taken into account an ultra vires provision of the Act is in this view immaterial in determining whether the assessment is 'made under the Act'. The phrase describes the provenance of the assessment; it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use is the test.
38. Rule 32 provides that tobacco is not to toe transported except under a permit issued by a competent officer. Beyond doubt, the permits are issued by A-1 using the machinery of the Act.
Consequently, the act done by him in issuing the permits comes clearly under the category of a thing- done under Act 1 of 1944.
39. So far as A-1 is concerned, the only act which is proved against him is the issuing of the permits. For the purpose of holding that A-1 entered into a conspiracy with A-2 and abetted cheating, the trial Court has relied on certain facts other than the fact of A-1 issuing the permits. They are as follows:
1. That P. W. 7 did not transport any tobacco under Exs. P-2 to P-5.
2. That A-2 utilised these Exs. P-2 to P-5 as parent permits for obtaining subsidiary permits in transporting the non-duty-paid tobacco from Rajampct to Madias as if it was duty-paid tobacco and thereby defrauded the Government of its revenue.
3. That A-2 induced the Madras merchants P. Ws. 13, 15 and 16 to receive the tobacco and deal with it by an implied representation that it was duty-paid tobacco and thereby cheated those Madras merchants.
These various acts were not proved by direct evidence to be connected with A-1. If A-1 had really been guilty in getting these various acts (other than issue of permits) committed, then they would not have been committed by him in his official capacity. In this respect, whether he was guilty of such conspiracy and liable for the offence depends on the evidence. The trial Court has also observed in para 27 of its judgment, as follows:
There is no evidence to show that A-1 and A-2 met at any time or corresponded with each other. But the circumstances of, the case are that a safe conclusion as to the association between A-1 and A-2 could be drawn and that a conspiracy existed between A-1 and A-2.
I agree with the lower appellate Court that this conclusion from the circumstances of the case is not justified or correct. In effect the only act o A-1 which is proved was committed by him in his official capacity and there is no act proved against him which was or could have been committed by him in any capacity other than official, which could show that he had the object of cheating the Madras merchants.
40. As regards charge 2 also, the only act which has been proved against A-1 is the issue of the permits which was certainly done in the discharge of his official duties.
41. In effect, the additional elements which are necessary to prove the second object of the conspiracy and the abetment of cheating under Charge No. 3 as regards A-1, have not been proved. I have already pointed out that as regards the first object of the conspiracy, Section 40(2) applies. On these findings alone, it was obvious that the charges 1 and 3 as against A-1 are not proved. Strictly speaking, it is not necessary to go into the facts on merits to find out whether it is proved that the subsidiary permits issued by A-1 are all false permits. All the same, I am going into that question and considering the largo volume of facts with reference to elaborate arguments adduced before me. Case regards Accused 2:-
42. It is contended on behalf of A-2 that he Is also entitled to the benefit of Section 40(2) of the Act, Reliance is sought to be placed on Rule 207 of the Act which runs:
A charge of an offence under Section 9 of the Act shall not be made except by an officer not inferior in rank to an Inspector and every such complaint shall be preferred within six months after the 'commission of the offence to which it refers.
It is argued that the prosecution is not for an offence under Section 9 of Act I of 1944. Section 9 of that act runs thus:-
Whoever commits any of the following offences viz.
X X X(b) evades the payment of any duty payable under this Act;
X X X(d) attempts to commit, or abets the commission of any of the offences mentioned in clauses (a) and (b) of this section; Shall, for every such offence be punishable with imprisonment, for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.' The first object of the conspiracy as stated in Charge No. 1 viz., of depriving the Central Government of its legitimate revenue, substantially amounts to an offence under Section 9(b) viz., evasion of payment of duty payable by A-2 and an object to commit an offence under Section 9(d) by A-1 and abetment by A-1 of the commission of an offence by A-2 under Section 9(b).
43. The learned Public Prosecutor contends that Rule 207 is meant only for the protection of a public servant who is an excise officer and that it does not apply to the case of a private merchant like A-2. This contention is not tenable in view of the fact that Rule 207 clearly contemplates an offence under Section 9 of the Act and evasion of payment of duty under Section 9(b) of the Act can be done only by non-public servant like A-2 and can only be abetted by a public servant like A-1. The contention of the learned advocate for A-2 is that as the complaint is not preferred within the time prescribed tinder Rule 207, A-2 cannot be lawfully prosecuted under Section 9(b) for defrauding Central Government of its revenue and A-1 cannot be charged for abetting. Section 107 I. P. C, defines 'abetting' as follows:
A person abets the doing of a thing who--
X X XSecondly -- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that, conspiracy, and in order to the doing of that thing.
Consequently, if A-1 had conspired with A-2 with the object of defrauding the Government of its duty under Section 9(b) then A-1 would have committed an offence under Section 9(b) by abetting the offence under Section 9(b). The case of the prosecution under Charge No. 1 is substantially that A-2 was abetted by A-1 in commission of the offence under Section 9(b) by A-1 issuing the permits. If the alleged facts in the prosecution evidence were true, a completed offence under Section 9(b) would have been committed. When; A-2 cannot be charged of such a completed offence under Section 9(b) because of the protection under Rule 207, it does not appear to be legally tenable' to hold that he (A-2) can be .charged for an offence under Section 120B I. P, C. with the object of committing an offence under Section 9(b) of the Act after the period mentioned in Rule 207. Therefore, the charge under Section 120B I.P.C. is not tenable so far as the first object in conspiracy is concerned as the complaint was not preferred within time. But, so far as the second object in the conspiracy in charge No. 1 is concerned, Rule 207 does not apply and the prosecution is not barred by Section 40(2) of the-Act. Similarly, charges 2 and 3 are also not barred because they involve certain acts which are not things done under the Act and need not be done by A-2 in his official capacity. I find accordingly on the preliminary objection.
(His Lordship proceeded to discuss the evidence and then dismissed all the appeals on merits).