R.K. Chowdhry, J.
1. This is an appeal by Raghava Rajagopala Chad and Debi Chand Vaish, referred to hereinafter as Chad and Vaish, against the judgment and order of Sri Shah Gyas Alam, Additional Sessions Judge of Kanpur, dated 20-11-1953. The appellants have been convicted for offences punishable under Sections 120B, 161 and 467 of the Indian Penal Code and Rule 81(4) of the Defence of India Rules framed under Section 2 of the Defence of India Act, 1939. For offences under the last three countsthey were tried by jury and for that under the first with the aid of assessors.
2. The appellants have been sentenced to 3 years' R. I. each under Section 120B, I. P. C. They have also been sentenced to 2 years' R. I. each under Section 161, I. P. C., plus a fine of Rs. 25,000/- in the case of Chari and of Rs. 5,000/- in the case of Vaish. In default of payment of fine, the defaulter is to suffer, further rigorous imprisonment for 6 months. Vaish has been further sentenced to 2 years' R. I, for the offence under Section 161, read with Section 109, I. P. C. Under Section 467, I. P. C., Chari has been sentenced to 4 years' R.I. Vaish to 3 years' R. I. Each of the two appellants has been convicted further under Rule 81(4), read with Rule 121, D. I. R., for contravention of Clauses 4, 5, 11B(3) and 12 of the Iron and Steel (Control of Production and Distribution) Order, 1941, and sentenced to 2 years' R. I. All the sentences have been directed to run concurrently.
3. One of the special measures passed under the Defence of India Act, 1939, and Rule 81(2) of the Rules framed thereunder, for the efficient prosecution of the Second World War and for maintaining supplies and services essential to the life of, the community was the Iron and Steel (Control of Production and Distribution) Order, 1949, made and enforced by the Central Government from and on 1-8-1941. Among other measures, it prohibited, under Clauses 4 and 5, acquisition and disposal of iron or steel from or by a stock-holder, registered as such by the Iron and Steel Controller of India at Calcutta, except under the authority of a written order of the Controller, and it empowered the Controller to fix the maximum prices of sale. There was a like measure passed relating to scrap iron, called the Iron and Steel (Scrap Control) Order, 1943.
4. By notification No. 223 of the Government of India in the Department of Supply, dated 25-2-1943, the Deputy Iron and Steel Controllers in various States were authorised to exercise the powers of the Controller. Each State was allotted a quota of the commodity., and the Deputy Iron and Steel Controller, referred to hereinafter as the D. I. S. C., distributed that quota to the stock holders of the State.
5. The first D. I. S. C. in Uttar Pradesh at Kanpur was Sri B. D. Talwar P. W. 31, and the appellant Chari was Assistant Iron and Steel Controller under him. Chari took over as D. I. S. C. from Sri Talwar in the afternoon of 31-12-1945, and held that office until 20-9-1946, when he suddenly left Kanpur without waiting for his leave to be sanctioned by the Controller at Calcutta after handing over charge to Sri. S. K. Sen P. W. 19.
6. There was an association of stock-holders of iron and steel at Kanpur known as the U. P. Registered Stock-holders Association. Chari was ex officio chairman of the Association. The railway administration was the main source of supply of scrap iron, and for U. P. it was the railway yard at Alambagh.
7. The office of the D. I. S. C. at Kanpur consisted of various sections. One of these was the civil supplies section which prepared and issued written orders, or licences, for sale of iron or steel by the stock-holders Association at Kanpur in compliance with the orders of the D. I. S. C. on applications of persons for such licenses. The other appellant Vaish was an Assistant in charge of this section, and he held that office from 24-11-1945 to 31-3-1946.
8. Control on scrap Iron lasted till 31-12-1945, the date on which Talwar handed over charge to Chari. With effect from 1-1-1946, scrap iron was decontrolled, vide the General Authorisation Order, Ex. P301 dated 12-12-1945, issued by the Controller along with the letter Ex. 302 of even date to theRailway Board and all Regional D. I. and S. Controllers.
9. With effect from 1-4-1946, iron and steel was decontrolled, vide the letter Ex. P308 from the Deputy Secretary to the Government of India in the Department of Industries and Supplies to the Provincial Governments and Chief Commissioners. Mr. E. G. Spooner P. W. 1, the Iron and Steel Controller, held a conference of the Deputy Regional Iron and Steel Controllers at Calcutta on the 25th and 26th of March, 1946, in which it was decided that although iron and steel was to be decontrolled from 1-4-1946, no further licences were to be issued in respect of that commodity, and oral instructions were given accordingly to all the D. I. S. Cs., Including Chari.
10. The appellants have been convicted for having accepted illegal gratifications in return for favours shown in a number of instances by misuse of Chari's powers as D. I. S. C. of issuing written orders for purchase of iron and steel and for purchase of scrap iron and also his powers of issuing orders for release of material as Chairman of the Stock-holders' Association at Kanpur. Written orders are also said to have been forged to appear as if issued before the aforesaid dates of decontrol, and before the date on which directions were issued in the Conference at Calcutta and both the appellants are said to have been in criminal conspiracy to commit the aforesaid offences. Vaish is said to have accepted illegal gratification in two instances and to have abetted acceptance of illegal gratification by Chari.
11. A number of complaints were made to the Chief Minister and the Home Minister of U. P., and the same were investigated among others by the two Deputy Superintendents of Police of the anti-corruption department, R. B. Tiwari P. W. 41 and L. S. Darbari P. W. 62. They made a number of seizures of articles and documents from the residence and office of Chari and from dealers in Kanpur and in various other districts, and L. S. Darbari submitted a charge sheet against the appellants on 2-3-1949 after necessary sanctions under Section 197 Cr. P. Code, and Section 6 of the Prevention of Corruption Act, 1947, had been obtained.
12. Both the appellants denied the various charges levelled against them. Chari admitted having issued after return from the Calcutta conference licences ante dated as anterior to 23-3-1946 but pleaded that he did it so as not to appear to have disregarded the directions given by the Controlled at the said Conference. Those directions had no binding force for statutorily the appellant had the power to continue issuing licences until 31-3-1946. The other antedatings were denied. The various other defences of the appellants will be set forth presently as and when the acts imputed to the appellants as bringing them within the mischief of the offences for which they have been convicted are dealt with.
13. But there were two pieces of arguments advanced by the learned counsel for Chari which must need be considered first since they seek to strike at the root of the prosecution. One was that the trial was without jurisdiction, and the other that it lacked the necessary pre-requisite of legal sanction to prosecute. So far as the latter argument is concerned, the matter is concluded by the decision of Harish Chandra, J., dated 18-7-1949, in Criminal Misc. Case No. 1240 of 1949 (A). The matter was brought to this Court at an interlocutory stage when the case was still before the Commit ting Magistrate and decided against the appellant. The learned counsel challenged the correctness ofthat decision, but this not being the proper forum for doing; so, he was heard no more on the point. Of the two preliminary arguments put forward only that relating to jurisdiction may therefore now be considered. Broadly speaking, the argument was that the trial should have been before a Special Judge appointed under the Criminal Law Amendment Act (XLVI of 1952) and not, as it actually was, by a jury before a Sessions Judge.
14. This Act seeks, as its preamble says, to amend the Indian Penal Code and the Code of Criminal Procedure and to provide for a more speedy trial of certain offences. It amends the Penal Code by raising the term of imprisonment for the offence under Section 155 and by creating the new offence of abetment of that offence and the one punishable under Section 161. It amends the Code of Criminal Procedure by extending the scope of recording statements and confessions in the course of investigation and of tendering pardon to accomplices in the course of inquiries and trials so as to make both applicable to the offences dealt with by the Act.
And, finally, it provides for a more speedy trial of those offences by authorising State Governments to appoint Special Judges, by conferring exclusive jurisdiction on these Special Judges for the trial of those offences and of offences with which the accused may under the Code be charged at the same trial, and by providing for the procedure to be followed and powers to be exercised by the Special Judges.
The procedure to be followed shall be that prescribed for the trial of warrant cases by magistrates, and the accused need not be committed to the Special Judge for trial. The powers of the Special Judge shall be those of a court of Session trying cases without a jury or without the aid of assessors.
Although this last provision necessarily implied that, it is specifically provided that the Special Judge may pass such sentences as are already provided for the offences, and that the decisions of the Special judge shall be appealable and revisable by the High Court as are the decisions of a court of session. Lastly, in conformity with the provision that the trial before the Special Judge shall be as the trial of warrant cases by magistrates without the accused being committed to him for trial it was laid down that all cases triable by a special judge pending immediately before the commencement of the Act before any magistrate shall be transferred to the appropriate Special Judge.
15. Order of commitment under Section 212, Code of Criminal Procedure, was in this case passed on 1-3-1952. The Criminal Law Amendment Act came into force on 28-7-52. The State Government first appointed the District and Sessions Judge of Kanpur as Special Judge for that district by Notification No. 1953/VI 812-52, dated 18-9-1952. In partial modification of that notification the Government appointed the Civil and Sessions Judge Kanpur in place of the District and Sessions Judge Kanpur as Special Judge for the district by Notification No. 3090(1)/VI-812-52, dated 16-11-1953. Sri Ghyas Alam, Additional Sessions Judge, commenced the jury trial on 4-5-1953. The learned counsel for Chari argued that the Act having already been passed and a Special Judge appointed thereunder, trial in a court of session was barred and was permissible only before a Special Judge. In support of this argument he referred to Section 7(1) of the Act, which runs as follows:
'Notwithstanding anything contained in the Code of Criminal Procedure 1898 (Act V of 1898) or in any other law the offences specified in Sub-Section (1) of Section 6 shall be triable by special judges only.'
16. Now, certain propositions of law in this connection are axiomatic. Unless provided expressly or by necessary implication, no statute is retrospective in its operation, but a statute which affects procedure only is retrospective.
The retrospectivity of a procedural statute will not however, affect substantive right which have already vested in a citizen. One such right is that although nobody has a vested right in any course of procedure, there is a vested right to continue the proceedings in the tribunal before which the same had already commenced according to the state of law as it stood at the time of the commencement of the proceedings : Colonial Sugar Refining Co. Ltd. v. Irving (1905) AC 369 (B); Marsh v. Higgins, (1850) 9 CB 551 (C). (Venugopala Reddiar v. Krishnaswami Reddiar , G. Veeraya v. N. Subbiah Choudhry : 1SCR488 . These were decisions in civil cases, but the principle laid down in them is equally applicable in criminal cases.
17. Now, there is no doubt that, barring that part of the Criminal Law Amendment Act which amends the Indian Penal Code, the rest of the Act is procedural and therefore applicable retrospectively. On the passing of the Act on 28-7-1952 and appointment of a Special Judge for Kanpur district thereunder on 18-9-1952, the appellants therefore became triable by the Special Judge even though they had been committed to sessions on 1-3-1952, unless their trial in a Court of Sessions had already commenced before 28-7-1952 when the Act came into force, or before even 18-9-1952 when the Special Judge was appointed.
It will appear presently that such a commencement had in fact already been made, so that trial by the Special Judge under the Act was barred. There is however an aspect of the matter which strikes one at once. It is an aspect which betrays the utter technicality of this objection regarding jurisdiction since the accused did not in any manner stand to gain, but only to loose, by their trial before a Special Judge because a trial before a Special Judge is only according to the procedure prescribed for the trial of warrant cases by magistrates and without a jury. Provided the jury be a free, competent and honest one -- an adventitious condition-not affecting the ideal, one might exclaim with Vaughan Williams L. J. in Lowenfeld v. Lowenfled, (1903) P 177, at p. 182 (F), whether a fury is not the best tribunal to try a question of fact.
And the purpose of raising the present objection was to bring about a retrial, or even the quashing of proceedings on the ground of considerable lapse of time. Incidentally, all this lapse of time is a consummation largely brought about by Chari himself. He moved an application on 3-5-1949 before the Committing Magistrate for quashing proceedings on the ground of want of valid sanction to prosecute and that matter lasted till October, 1949 when his application for special leave to the Privy Council against the aforesaid decision of Harish Chandra J., dated 18-7-1949, was rejected.
He then moved another application before the Magistrate on 26-11-1949, for quashing proceedings on the ground of want of jurisdiction which also proved abortive but not until the matter was taken up to the Supreme Court and finally decided on 19-3-1951. In May, 1952, he moved an application before the Supreme Court under Section 527, Criminal Procedure Code, for transfer of the case from this State, which was rejected in September 1952. Chari would therefore appear to be an accused who clutched at any opportunity to delay or defeat his prosecution.
It is strange then that at no stage during his trial from 4-5-1953 to 20-11-1953 should he have raised the objection which he has now raised namely, that the court of session trying him had no jurisdiction to do so. To permit an accused who has deliberately submitted to a jurisdiction to raise the objection of want of jurisdiction, at the appellate stage is not only to permit something which pricks judicial conscience but which has grave potentialities for miscarriage of justice since, if there is a retrial as a result of the objection succeeding, much of the evidence by that time may either not be available or be tampered with.
That is, however, the anomalous situation permitted by the law as it stands, and it has to be met on its merits, as it has been attempted to be in numerous reported decisions.
18. That objection in the present case appears to be devoid of merit. I have already enunciated the relevant legal propositions as I understand them. The above cited procedural provision regarding the case being triable by the Special Judge only, contained in Section 7(1) of the Criminal Law Amendment Act, would be applicable provided its retrospective application had not already become barred.
It would only be applicable where the intervening period of time between the case being ready for hearing and the passing of the Act and appointment of a Special Judge thereunder were a tabula rasa with no impediment of a countervailing vested right already created. If in the aforesaid time the trial of an accused has already commenced before another tribunal a vested right is created in favour of the accused that the trial continues before that tribunal in accordance with the procedure in force at the commencement of that trial. The creation of that vested right will prevent the applicability of the said provision of the Act and so be a bar to the accused being tried by a special Judge in accordance with the special procedure prescribed in the Act.
19. The crucial question therefore is whether the trial of the appellants had already commenced before a Sessions Judge. Before taking up that question of fact I would like to express, respectfully and in all humility, my disagreement with the view taken in some cases, e. g., in the State v. P. K. Swamy : AIR1953Mad451 that 'the case can be said to have well commenced when the order of commitment is made.' The Code of Criminal Procedure prescribed in Sections 190 to 199B certain conditions requisite for initiation of various proceedings. Such a pre-requisite for a magistrate taking cognizance of an offence is, under Section 190, receipt of a complaint or a police report or information from any person other than a police officer or the Magistrate's own knowledge or suspicion. Likewise, the pre-requisite for a Court of Session taking cognizance of an offence as a court of original jurisdiction is, under Section 193, the committal of the accused to that Court by a magistrate duly empowered in that behalf.
That being so, to say that a trial in the Court of Session commences when the order of commitment is made is to confuse the cause with the effect. An order of commitment passed by the inquiring Magistrate under Section 213 of the Code can no more be tantamount to commencement of proceedings before a Court of Session than can the filing of complaint or the making of a report by a police officer or the furnishing of information by a person other than a police officer or the knowledge or suspicion of the Magistrate himself under Section 190 be tantamount to commencement of trial before the Magistrate.
So far as the Criminal Law Amendment Act is concerned, it does away entirely with commitment so much so that by Section 10 it cuts short proceedings pending before any Magistrate, commitment proceedings or any other, by providing for immediate transfer of such cases to the appropriate Special Judge. The Act is. no doubt silent with regard to cases, like the present, where an order of commitment has already been passed; but any such provision would have been redundant.
It may perhaps be that the passing of an order of commitment, being a condition precedent to the cognizance of an offence being taken by a Court of Session, entitles the accused so committed to be tried by a Court of Session; but the Act leaves that right intact since it provides in Sub-section (3) of Section 8 that for the purposes of the provisions of the Code of Criminal Procedure the court of the Special Judge shall be deemed to be a Court of Session. True, the procedure before a Special Judge is a truncated one in that it is a trial without a jury or without the aid of assessors, besides its being justifiable in the larger interests of providing 'for a more speedy trial,' the accused himself cannot make a grievance of it inasmuch as 'no one has any vested right in any course of procedure.'
20. The thing to see, therefore, in order to find out whether the trial of the appellants had already commenced in a Court of Session before the coming into force of the said Act and the appointment of a Special Judge thereunder is, not if an order of commitment had already been made, but if anything had been done which could legally be interpreted as amounting to a commencement of trial. Chapter XXIII of the Code of Criminal Procedure deals with trials before High Courts and Courts of Session and it is sub-divided into many parts. One such part is headed Commencement of Proceedings and comprises three Sections 271, 272 and 273. Of these only the first two sections apply to trials before a Court of Session, the last one being confined in its application to trials before the High, Court. And in the first two sections also Sub-section (1) of Section 271 is the only provision dealing specifically with the Subject of commencement of trial, Sub-section (2) of that section and Section 272 dealing with what is to be done if the accused pleads guilty or if he refuses to or does not plead or if he claims to be tried. Strictly speaking, therefore, the provisions of Sub-section (1) of Section 271 are the only relevant provisions to be looked into in order to find out whether a particular trial had commenced. The Sub-section runs as follows : --
'271. Commencement of trial -- (1) When the Court is ready to commence the trial, the accused shall appear or be brought before it, and the charge shall be read out in Court and explained to him, and he shall be asked whether he is guilty of the offence charged, or claims to be tried.' Analysed, the sub-section is composed of the following ingredients (1) the Court being ready to commence the trial, (2) the accused appearing or being brought before it, (3) the charge being read out in Court and explained to the accused, and (4) the accused being asked whether he is guilty of the offence charged, or claims to be tried.
20a. Examination of the proceedings in the Sessions Court after commitment discloses that the record was received in the Court of the Sessions Judge on 12-5-1952 and on 30-6-1952 and he issued orders that prosecution witnesses be summoned from 25-8-1952 and the defence witnesses from 10-9-1952 onwards, that the accused's counsel be informed to produce them on 25-8-1952 and that 10 jurors be summoned.
On 21-7-1952 Chari endorsed a note on the order sheet that he had received information fromhis counsel about his presenting himself in the Sessions Court on 25-8-1952, that he shall, present himself on that date and subsequently during the trial, and that no notice be issued to the sureties. On 24-7-1952 an application along with the list of defence witnesses was sent to the Committing Magistrate. On 14-8-1952 two applications were filed on behalf of Vaish, one for summoning certain defence witnesses and the other for requiring a prosecution witness, the Secretary, Iron and Steel Controller's office Calcutta, to produce a register. On the motion of the public prosecutor and by an order dated 16-8-1952 the Sessions Judge adjourned the sessions trial sine die, and on 29-8-1952 he transferred the case to the Court of Sri B. N. Chaudhari Additional Sessions Judge. On the same date the Additional Sessions Judge ordered summoning of prosecution witnesses from 3-11-1952 and defence witnesses from 18-11-1952 and also the summoning of jurors who had been selected already. In the meanwhile, as noticed above, the Sessions Judge was appointed Special Judge under Section 6(1) of the said Act by a notification dated 18-9-1952 and so he transferred the case back to his file to try it as a Special Judge.
But by an order dated 19-12-1952 he retransferred the case to the Court of the Additional Sessions Judge Sri Ghayas Alam, acting on the authority of the aforesaid ruling in : AIR1953Mad451 , on the ground that the order of commitment had been passed prior to the coming into force of the Criminal Law Amendment Act. That was how there was jury trial of the appellants before the Additional Sessions Judge, Sri Ghayas Alam.
21. Now, mere enforcement of the Act in the State on 28-7-1952 did not render trials before special judges possible. That became possible only on the appointment of special judges on 18-9-1952. After commitment of the appellants on 1-8-1952, therefore, they could have been tried by a Special Judge only on or after 18-9-1952. The above examination of the record however shows that certain important proceedings had already been had in the Sessions Court prior to the appointment of the Special Judge.
Not only was the Sessions Court ready to commence the trial but the accused had appeared before it and witnesses for the prosecution and defence, the latter at the instance of the accused themselves, and jurors had been summoned. Of the aforementioned ingredients of Section 271 of the Code the first two therefore stood satisfied, and, although there had yet been no compliance with the remaining two ingredients, a deep penetration into the heart of the trial, as it were, had been made by defence witnesses having been summoned at the instance of the accused, as provided by Section 289 of the Code.
It is true that, normally that should have only been done after the charge had been read out to the accused, the accused had claimed to be tried, the jurors had been chosen and sworn, the prosecutor had opened the case and examined witnesses, and the Court considered, on an examination of those witnesses and the examination (if any) of the accused, that there was evidence that the accused had committed the offence. But all these intermediate provisions were skipped. They were no doubt duly complied with subsequently, but, for the time being, their observance appears to have been treated as a mere formality and, in view presumably of the evidence already recorded in the Court of the Committing Magistrate, both the Court and the accused considered it a foregone conclusion that, after observance of those formalities, the finding would be that there was evidence that the accused had committed the offences in question and the accused would be called on to enter on their defence.
The child had started toddling before it had learnt to crawl. Whether it was a case of precocity or freak of nature or anything else, it is immaterial. Be the cause what it may, the hard fact is that the trial of the appellants had already proceeded far beyond the stage of commencement by the time it could possibly be taken up by a Special Judge, so that the possibility of a retrospective application of the said Act in that behalf had been irretrievably lost. The argument of the learned counsel that the Additional Sessions Judge had no jurisdiction to try the case would appear therefore to have no force.
22. Before proceeding further a point raised relating to charges may here be taken up. Of the five charges framed against Vaish three related to offences alleged to have been committed by him as principal offender and one as an abettor and the fifth charge was of criminal conspiracy with Chari. It was urged that there was a misjoinder of charges and persons so far as the three charges against Vaish as principal offender were concerned since in respect of them the provision contained in Section 239 (b), Criminal Procedure Code, was not available. This objection is soon disposed of.
Firstly, joint trial of the appellants was permissible under Section 239 (d) in view of the charge of criminal conspiracy. Secondly, if there was any misjoinder it stood cured under Section 537 of the Code since this objection was never raised at the trial and cannot therefore be said to have occasioned a failure of justice. Learned counsel urged that Section 537 was ultra vires the Constitution as it was in conflict with Article 21 which prohibited any person being deprived of his life or personal liberty except according to procedure established by law. The short answer to this argument is that Section 537 is itself a part of the procedure established by law.
23. The next argument put forward was that the verdict of the jury was liable to be reversed since it was an erroneous verdict owing to misdirection by the Judge. This argument has, of course, reference to the conviction of the appellants for offences other than that under Section 120-B, I. P. C. Now there is no doubt that this argument, so far as it relates to misdirection only, is well founded.
In fact, the learned Deputy Government Advocate conceded its correctness. What strikes one at once on a perusal of the charge to the jury is that it is glaringly one-sided -- one-sided in the sense) that it is what is designated as a 'charge for conviction'. While giving the history of the case in the earlier part of the charge the learned Judge expressed himself as follows :--
'The prosecution alleges that the term of office of Chari as Deputy Iron and Steel Controller is an infamous record full of fraud, forgery and corruption, and he and some of his subordinates including Vaish formed a pernicious clique and they abused the system of control so persistently that it became a bazar scandal. People got so fed up that clear and unmistakable allegations of partiality and imputations of bribery came out in some of local newspapers and Vartman of 2nd July, 1948 published an article which is Exh. P2 on the file in which it was openly avowed that Rs. 50/- per ton was the purchase of the issue orders in Chari's office.'
It may possibly have been the language adopted by the learned Public Prosecutor in opening his case for the prosecution, but that was certainly not a fair way for a Judge to put the matter in his chargeto the jury. All that need have been said was that the prosecution case was that the two accused had entered into a criminal conspiracy to accept illegal gratification for issuing written orders for purchase of iron.
The invectives with which the charge was interlarded and the reference to imputations in newspapers, besides being irrelevant loaded the dice, heavily against the accused. The same one-sidedness characterises also the summing up of evidence relating to most of the ten instances in which illegal gratifications are said to have been accepted. Witness, for instance, the following language used at the end of the fourth instance relating to Banwari Lal :
'Thus gentlemen, there is corroboration of the statement of Banwari Lal in various licences, the cash memo of the fans, the letter of Chari Exh. P24-and in the statements of Abdul Rashid, Shukla, A. Maul and Reubin. If you think statements of these persons to be true and believe them, and if you consider the corroboration enough you must return a verdict of guilty against Chari.'
Now, there is no doubt that under Section 298 (2) of the Criminal Procedure Code the fudge may, if he thinks proper, in the course of his summing up, express to the jury his opinion upon any question or fact, or upon any question of mixed law and fact, relevant to the proceeding, but he may do that and no more.
If he not only expresses his opinion but does so in such a manner as to canvass judgment in favour of that opinion, he exceeds his jurisdiction and trespasses on that of the jury. In order to safeguard against such a contingency, the judge must warn the jury that they are not bound by his opinion and are the final judges of fact. Omission to administer such a warning, particularly where, as in the present case, the judge expresses his opinion so as almost to compel the judgment of the jury, would therefore amount to misdirection by the Judge within the intendment of Section 423 (2) of the Criminal Procedure Code.
The learned Judge omitted also to lay down such elementary, but fundamental, principle of criminal law that the accused is entitled to the benefit of doubt. This non-direction related to a matter of such primary importance as to amount to misdirection. All these are matters well established by a long line of decisions. It will suffice to make reference to only one of them : Hasnu v. Rex AIR 1949 All 135 (H).
24. Many other misdirections in the charge to the jury were pointed out, but those mentioned above should be sufficient. It is not enough, however, to justify a reversal of the verdict of the jury under Section 423 (2) of the Criminal Procedure Code that there has been a misdirection by the Judge since the requirement under that provision is that the Court be of opinion 'that such verdict is erroneous owing to a misdirection by the Judge.'
There has to be not only a misdirection by the Judge, therefore, but the misdirection should have resulted in the verdict of the jury being erroneous. If in spite of the misdirection by the Judge the verdict of the jury is not erroneous, the verdict cannot be reversed. The next step after finding misdirection should therefore be to find whether the verdict is erroneous, and erroneous owing to the misdirection.
When the finding on this second issue is also in the affiirmative and only then the Appellate Court will be authorized to alter or reverse the verdict of a jury. Of course, Section 423 (2) prescribes one other cause, besides misdirection, as leading to an erroneous verdict being given by a jury,namely, misunderstanding on the part of the jury of the law as laid down by the Judge. But in this case only misdirection as leading to that result has come in for consideration. Furthermore, in deciding whether the verdict of the jury is erroneous the Court has necessarily 'to take the whole case into consideration and determine for itself whether there has been a failure of justice in the sense that a guilty man has been acquitted or an innocent man has been convicted.'
Therefore, the High Court in an appeal can, even when there has been a serious misdirection or non-direction, consider the evidence and maintain the conviction if the evidence clearly establishes the guilt of the accused. Abdul Rahim v. Emperror ; and Ram Kishan v. State of Bombay : 1955CriLJ196 . Having found that there was misdirection, it is necessary now to consider the evidence. And I may say at once that on a careful consideration of the evidence I have come to the conclusion that the convictions of Chari, subject to slight variations, should be maintained and though not those of Vaish.
I propose to examine the ten instances on which the convictions are based in the order in which they have been dealt with by the learned Additional Sessions Judge. I am considering for the present the charges in respect of which there was jury trial, leaving consideration of the charge of criminal conspiracy to the end.
24-a. (1) Lala Sheo Karan Das : The prosecution case relating to this instance was that, as a motive or reward for issuing written orders and expediting supply of iron by the said Stock-holders' Association to Lala Sheo Karan Das, partner and proprietor of various firms at Kanpur, Chari committed the offence under Section 161, I. P. C., by accepting from him Rs. 4,000/~ on 31-3-1946, Rs. 2,000/- on 9-4-1946, Rs. 1,000/-on 11-4-1946 and Rs. 1,000/- on 12-5-1946 as illegal gratification, and the offence under Section 467, I. P. C., or in the alternative under Rule 47 (3), read with Rule 47 (2) (a), Defence of India Rules, by antedating the written orders Exhibits P. 341 and P 342, and that Vaish abetted the acceptance of the said Rs. 4,000/- by Chari and himself committed the said forgeries. Both the appellants were further charged under Rule 81 (4), lead with Rule 121, Defence of India Rules, with having abetted transgression of the provisions of Clauses 4, 5, 11-B (3) and 12 of the Iron and Steel (Control of Production and Distribution) Order in connection with the aforesaid two written orders.
25. The prosecution case with regard to the antedating of the said two written orders may be explained. As control on iron and steel was to be lifted from 1-4-1946, Mr. Spooner P. W. 1, the Iron and Steel Controller, convened a conference of D. I. S. Cs at Calcutta on the 25th and 26th March, 1946. Chari also attended the Conference, he having left Kanpur for Calcutta on 23-3-1948 and returned therefrom on 28-3-1946 and attended office on 29-3-1946.
In that Conference the Controller issued oral instructions to all the D. I. S. Cs. not to issue any further licences. This has been testified to by Mr. Spooner and Sri M. N. Mitra P. W. 32, Assistant Director Iron and Steel Controller, and admitted by Chad. Sheo Karan Das P. W. 35 has deposed that he presented applications to Chari in his office on 29-3-1946 or 30-3-1946 for written orders or licences for purchase of iron, but Chari asked him to ante-elate his applications as bearing date prior to 23-3-1946. At the same time the payment of bribe was also settled.
Accordingly, Sheo Karan Das presented to Chari on the same date applications Exhibits P35and P36, dating them respectively 15-3-1946 and 16-3-1946, and Chari passed orders on them bearing 22-3-1946 as the date, and licences Exhibits P341 and P342 bearing date 23-3-1946, were then prepared and issued to him for 110 tons of iron. There is no date under Chari's signatures on the prepared licences. Vaish as the clerk concerned, prepared these licences. Chari denies having asked Sheo Karan Das to ante-date his applications. He also denied having ante-dated his orders on these applications. As regards his signatures on the licences bearing no date, he stated that while signing so many licences he may not have put dates in some of them.
His general defence in this connection was that on his return from Calcutta a number of licences in respect of which he had passed orders before (leaving for Calcutta and some new applications were put up before him and he ordered issue of all licences as on, 23-3-1946 in deference to the wishes expressed by the Controller in the conference at Calcutta, otherwise statutorily he had the power to issue licences up-till 31st March, 1946. He also denied having demanded or accepted any bribe. Vaish admits having prepared the licences but explains that he put the date 23-3-1946 on them according, to the orders issued by Chari on return from Calcutta that licences were to bear the dates of his orders on applications. Chari's orders on applications Exhibits P35 and 36 however bore date 22-3-1946. Vaish does not appear to have been questioned regarding the charge as to his having abetted Chari to accept Rs. 4,000/-. (26) Certain questions of law were raised by the learned Counsel for the appellants, but before discussing them the crucial question of fact regarding acceptance of the bribes may be taken up. Sheo Karan Das has sworn to the settlement of bribe with Chari on 29-3-1946 and to the payment to Chari of Rs. 4,000/- on 31-3-1946 and Rs. 2,000/-on 9-4-1946.
His son Bhola Ram P. W. 56 has sworn that he paid to Chari Rs. 1,000/- on 11-4-1946 and a like sum on 12-5-1946. The latter payment has also been testified to by Parshotam Das P. W. 51, nephew and partner of Sheo Karan Das, for he says he and Bhola Ram went together to Chari on 12-5-1946. Their statements stand corroborated by entries in the Kachchi rokar Exh. P. 111 maintained at the godown of the firm Sheo Karan Das Dwarka Das of which Sheo Karan Das and Parshotam Das were partners. Parshotam Das has deposed that he used to sit at the godown and entries in the Kachchi rokar were made by him, including the four entries Exhibits P. 263, 264, 112 and 265 in respect of the aforesaid sums.
The entries mention Chari as the payee of the amount. This account book contains entries from 9-3-1946 to 18-5-1946 and was seized on 16-9-1946 by Inspector Hori Singh P. W. 61 of the C. I. D. under warrant Ex. P. 344 issued by the District Magistrate, and the officer prepared the memo Ex. P. 37 in respect of the recovery. Genuineness of this account book was questioned before me on two grounds: that it was for only a short period, and that the Pakki rokar had not been produced. With regard to the former both Sheo Karan Das and Parshotam Das have stated that this account book was closed after 18-5-1946 because work at the godown was closed thereafter, and these statements were not challenged in cross-examination.
With regard to the other objection, Sheo Karan Das stated in cross-examination that entries corresponding to those in the Kachchi rokar Ex. P. 111 were also made in the Pakki rokar and that the pakki rokar used to be produced in the income-taxoffice. Parshotam Das also stated in cross-examination that entries from Ex. P. 111 used to be carried over to the proper account books kept at the shop. If the defence doubted Ex. P. 111 they could and should have summoned the corresponding pakki rokar.
So far as the prosecution were concerned, they need have produced only the kachchi rokar Ex. P. 111 as that and not the pakki rokar constituted primary evidence of the transactions entered therein. Otherwise Ex. P. 111 appears to have been regularly kept in the course of business within the intendment of Section 34, Evidence Act, as balances were struck daily. I am of the view that entries in Ex. P. 111 are reliable.
27. The legal point raised in this connection was that the testimony of the aforesaid witnesses was that of accomplices, and that entries in their own account book should not be accepted as independent corroboration of their testimony. Now, the law with regard to an accomplice witness is well established and it is laid down as follows in Rameshwar v. State of Rajasthan : 1952CriLJ547 . Uncorroborated testimony of an accomplice is admissible in law but is a rule of prudence hardened into a rule of law that it is not safe to convict a prisoner on the uncorroborated testimony of an accomplice.
It is not possible to formulate what kind of evidence should be regarded as corroboration; its nature and extent must necessarily vary with the circumstances of each case and of the offence charged. But the following rules are clear: (1) that it is not necessary that there should be independent corroboration of every material circumstance, it being sufficient that there is some additional evidence rendering it possible that the story of the accomplice is true and that it is reasonably safe to act upon it; (2) that the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect the accused with it by confirming in some material particular the testimony of the accomplice that the accused committed the crime; (3) that the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another; and (4) that corroboration may be not only by direct but even circumstantial evidence. Elaborating the third rule above, it was laid down that a previous statement of the accomplice himself, provided it be admissible in law and reliable, may form independent corroboration. Of course the question of corroboration would only arise if the testimony of the accomplice witness is itself worthy of credence so that if that testimony is unreliable there is nothing which requires corroboration.
28. Applying the above principles to the facts of this instance, there is apparently no reasonable ground for discarding the evidence of Sheo Karan Das, Bhola Ram and Parshotam Das. It was urged that they were black-marketeers. Sheo Karan Das denied the suggestion and stated that a 'munim' of his had done some black-marketing and he had turned him out. It appears that in his statement under Section 161, Criminal P. C., the witness had said that Rs. 4,000/- had been paid out of the black-marketing book.
It may therefore be that the witness had indulged in black-marketing. But, as the provisions in Sections 146, 148 and 155 of the Evidence Act would seem to disclose, the credit of a witness can be said to have been shaken only if it can be shown that he is not a man of veracity, and not that he is of bad moral character. A black-marketeer isnot necessarily untruthful nor a non-black-marketeer necessarily a man of veracity. There is no reason therefore to disbelieve the sworn testimony of the aforesaid three witnesses about payment of aforesaid sums, aggregating Rs. 8,000/- to Chari as illegal gratification.
29. But as the witnesses fell in the category of accomplices by reason of being bribe-givers, independent corroboration of their evidence may be looked for under the aforesaid rule of prudence. This corroboration is afforded by the aforesaid entries in the kachchi rokar Ex. P. 111. True, the entries may be said to be formal statements of the accomplice or accomplices themselves, but since they satisfy the aforesaid dual conditions of being admissible (under Section 34, Evidence Act) and reliable (as adverted to already) they should be taken as independent corroboration of the testimony of those witnesses.
Furthermore, since those entries speak of payments made to Chari, and since there were no business connections between him and the witnesses to which the payments could otherwise be related, the entries afford corroboration both as regards the crime and the accused.
30. Corroboration of the statements of the said witnesses is also found in certain pieces of circumstantial evidence. One such circumstance is the admitted ante-dating itself. There should have been some compelling reason for Chari to act in disregard of the directions given by the Controlled in the Conference at Calcutta. True, statutorily Chari had the power to issue licences for purchase of iron and steel up-till 31-3-1946, but there is no explanation forthcoming as to why he should have been under the necessity of taking his stand on that authority when, as a subordinate to the Controller, it should have been natural for him to carry out the specific directions given to him, and to other D. I. S. Cs., in the Conference at Calcutta.
Two defence witnesses were produced, S. B. Rajagopalan, Office Superintendent of the Madras Registered Stock-holders Association and Sakha Ram, Secretary Bombay Control Registered Stockholders Association. They produced registers of their respective Associations and proved entries showing that certain licences for purchase of iron continued to be issued till the end of March 1946. But there is nothing to show in what circumstances those licences were issued. Asked if the licences were issued for defence purposes, the witnesses professed ignorance about it.
These entries in the registers of the Stockholders Associations in Bombay and Madras could not therefore be said to afford any justification for the aforesaid abnormal conduct of Chari in issuing the licences in contravention of the directions of the Controller. And it is noteworthy that not only did he contravene those directions but he did so on the sly by antedating his orders and the licence dates.
In the absence of any explanation whatsoever, let alone acceptable explanation, for such an extraordinary conduct on the part of Chari, the explanation given by the witnesses themselves, namely, that the motive force behind the aforesaid extraordinary conduct of Chari was the acceptance of illegal gratification, should be accepted.
31. Other circumstances corroborative of the accomplice evidence are that large quantities of material were released in favour of Sheo Karan Das or his firm and deliveries of the same were expedited, as proved by Chari's orders on applications for special allotments Exhibits P571 to 580, 585, 587 and 591, delivery orders Exhibits P115 to 120,122, 123, 590 and 592 and Challans Exhibits P165 to 219. Even priorities were created in favour of the firm, as shown by Chari's orders on applications Exhibits P569 and P570, in that against the usual routine of supplies being made two quarters after the granting of licences, orders for immediate release of material were passed.
These orders to the stock-holders Association for immediate or expedited release Chari was in a position to pass by virtue of his Chairmanship of the Association. Chari had therefore the whip-hand of the situation, he could issue orders as D. I. S. C., for grant of licences as he willed, and he could bring about immediate execution of those orders as Chairman of the Stock-holders' Association. Indeed, it was an ideal concatenation of circumstances for bribe-givers and bribe-takers. In view of all the above evidence I am clearly of the opinion that the offence under Section 181, I. P. C., has been fully brought home to Chari.
32. There was one other question of law raised, and it related to the charge of forgery. The Indian Penal Code has taken two sections to define forgery, Sections 463 and 464. The former defines forgery as the making of a false document with any of the intentions enumerated there, and the latter defines what the making of a false document is. The argument put forward was that none of the intentions mentioned in Section 463 could be imputed to Chari since, in antedating the licences, his only intention was not to contravene the directions of the Controller which, strictly speaking, were not binding on him since under the law he was free to grant licences upto the end of March, 1946.
There is one ingredient common to both the above sections, that of fraud, so that (quoting only the portions relevant to the present case) whoever makes a false document with intent to commit fraud or that fraud may be committed, commits forgery, and whoever fraudulently signs or executes a document with the intention of causing it to be believed that such document or part of the document was signed or executed at a time at which he knows that it was not signed or executed will be said to make a false document.
The question therefore is whether Chari did the antedating fraudulently. As Sir Fitzjames Stephen wrote in 1883 (History of the Criminal Law, Volume 2, p. 121), there has always been a great reluctance amongst lawyers to attempt to define fraud. That reluctance is discernible also in the definition, of fraudulently in Section 25 I. P. C., for that definition only states tautologically that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. Sir Fitzjames has set forth in the aforesaid History an analysis of the principal elements essential to the commission of any crime wherein fraud is the sine qua non of liability. He does so at pp. 121-122 of Volume 2 in these terms :
'There is little danger in saying that whenever the words 'fraud' or 'intent to defraud' or 'fraudulently' occur in the definition of a crime, two elements at least are essential to the commission of the crime, namely : (1) deceit or an intention to deceive or in some cases mere secrecy; (2) either actual injury or possible injury or an intent to expose some person either to actual injury or to a risk of possible injury by means of that deceit or secrecy.'
There appears to be a consensus of judicial opinion with regard to the first element of deceit but not with regard to the second relating to injury. Of-course, where there is reliance on causing of injury under Section 463 and on the element of 'dishonestly' under Section 464, I. P. C., proof of injury may benecessary.
But where fraud is the element relied upon for application of both the sections, the other view is that it is sufficient to prove that the accused wanted to secure advantage to himself but not also that he intended to cause injury to another.
The decision in Emperor v. Abdul Hamid, AIR 1944 Lah 380 (L), is illustrative of the latter view and that in Sanjiv Ratnappa v. Emperor AIR 1933 Bom 545 (M), of the former. The direction to the jury as to the meaning of intent to defraud given by Channell, J., in R. v. Carpenter, (1911) 76 JP 158 (N), and described by the Court of Criminal appeal in the recent case of R. V. Kritz, (1950) 1 KB 82 at p. 86 (O), as the locus classicus on the point, was in these words :
'If the defendant made statements of fact which he knew to be untrue, and made them for the purpose of inducing persons to deposit with him money which he knew they would not deposit but for their belief in the truth of his statements, and if he was intending to use the money so obtained for purposes different from those for which he knew the depositors understood from his statements that he intended to use it, then we have the intent to defraud.'
It will be seen that in the above passage the two ingredients of intent to defraud brought out were deceit and securing of advantage to himself by the accused but not, at the same time, the causing of injury to another. This was emphasised by Channell, J., going on to say that it made no difference that the accused honestly believed that he would be able to repay the money, for the fraud is in the mode of getting the money.
'You are defrauding the man,' continued the learned Judge, 'because you are giving him something altogether different from what he thinks he is getting, and you are getting his money by your false statement. In such a case as that the false statement would not be honestly made, and this question as to the intent to defraud substantially comes to this : whether or not the statements were honestly made.' The concept of deceit has been amply brought out in the above passages, but a definition of 'intent to deceive' which is often cited is expressed in these words by Buckley, J., In Re London and Globe Finance Corporation Ltd. (1903) 1 Ch 728 at pp. 732, 733 (P).
'To deceive is to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false.' Incidentally, in contrast to the above cited view of Stephen, Bentham in his Collected Works, Vol. 6, p. 292 n., thought that fraud simply embraced the idea of falsehood or mendacity, I am in respectful agreement with the view expressed by Sale, J., in the aforesaid decision reported as AIR 1944 Lah 380 (L).
33. Applying that view to the facts of the instant case under consideration, and keeping in view the definition of forgery contained in sections 463 and 464, I. P. C., what needed being established to bring the guilt home to Chad was : (1) Did he sign orders on Sheo Karan Das's applications Exhibits P35 and P36 on dates on which he knew they were not signed? and (2) Did he do it fraudulently, that is, with intention to deceive and derive advantage to himself? On the first point there is the testimony of Sheo Karan Das supported by his son Bhola Ram and nephew Parshotam Das, the former having signed one application and the latter the other.
Mohan Lal Makheeja P. W.28 was at the relevant time a elerk and S. K. Sen P. W. 19 a Superintendent in the office of the D. I. S. C., at Kanpur. It 'appears from their evidence that the licences used to be prepared by various clerks and registered serially and datewise in a register called' the quota register by a clerk named Rawat, since dead, and that the same serial number and date were noted on the licences by Rawat. The prosecution has produced this register, it being Ex. P62 on the record. The register shows that after serial No. 695 and licence No. 361604, dated 23-3-1946, licences were entered under date 27-3-1946, upto serial No. 754 and licence No. 361662 and thereafter under date 28-3-1946, but both 27-3-1946 and 28-3-1946 appear to have been tampered with and altered into 23-3-1946. Mohan Lal Makheeja proved a number of licences which were prepared by him subsequent to 23-3-1946, as his initials and dates on them showed, but were initialled by Chari as on 23-3-1946.
These licences appear in the quota register under tampered dates. There is nothing to show who tampered with the dates in the register but there is no doubt that Chari antedated the licences-The register appeal's therefore to have been tampered with so as to synchronise with Charts antedating. The two licences Exhibits P341 and P342 also appear in the 'juota register under a date that had been tampered with. It is important to note in this connection that Churi has admitted antedating, on his return from Calcutta, not only licences in respect of which he says, orders had been passed by him before leaving Kanpur for that place to attend the Conference, but also haying antedated orders on fresh applications that were put up before him on his return from Calcutta.
In these circumstances, I am of the view that the evidence of the aforesaid' witnesses about the applications having been put up before Chari on 29-3-1946 and his having antedated his orders on them is worthy of belief, and I believe it. His defence that he did so to circumvent only the verbal directions of the controller and not any law is wholly irrelevant : it is a distinction without a difference from the point of view of the aforesaid definition of forgery and concept of the term 'fraudulently. As to the second point, there is no doubt, in the first place, that what he did was done with intent to deceive because it was clone to induce the Controller, should the papers come to his notice, as was quite likely to believe that the licences had been granted prior to the giving of the aforesaid directions by him although the same had in fact been granted subsequent thereto.
The antedating would appear further to have been done to deceive other applicants for licences who may not have been obliging enough to gratify Chari with payment of bribes and whose applications Chari may have had to reject as filed after the passing of the Controller's directions. In the next place, the deception was practised by Chari to derive benefit to himself for, as seen already, he did it to wrest the bribe of Rs. 8,000/- from Sheo Karan Das.
I am of the view therefore that the offence punishable under Section 467, I. P. C., of forgery of licences to give authority to Sheo Karan Das to receive iron and steel from the Stock-holders' Association at Kanpur has been fully brought home to Chari. Incidentally, the aforesaid Challans show that Sheo Karan Das did succeed in receiving the commodity, although that was not necessary for the commission of the offence. The above findings establish also the alternative charge against Chari under Rule 47 (3), read with Rule 47 (2) (a), Defence of India Rules, these provisions being conterminous with those under Section 467, I. P. C.
34. There is, however, no evidence to show that Vaish abetted acceptance of the sum of Rs. 4000/- by Chari. As regards the charge against Vaish of forgery of the said documents, there is no evidence throwing any light on the circumstances in which he prepared the antedated licences. Considering that he was a subordinate of Chari, and considering also that there is no allegation of acceptance of illegal gratification by Vaish in this instance, it cannot be said that the defence of this appellant that he antedated the documents under orders of Chari was unfounded. The charge of forgery against Vaish in this instance therefore fails. As regards the charge against both Chari and Vaish that they abetted transgression of the provisions of Clauses 4, 5, 11B (3) and 12 of the Iron and Steel (Control of Production and Distribution) Order and therefore committed the offence punishable under Rule 81 (4), read with Rule 121 of the Defence of India Rules, there is no allegation, much less proof, of contravention of Rule 11B (3) regarding sale by producer at prohibited price, or of Rule 12 regarding observance of directions as to procedure prescribed by the Central Government.
The directions given by the Controller in the Conference at Calcutta cannot be called directions by the Central Government. Nor can it be said, on the evidence adduced in this case, that there was contravention of Clause 5 by any stock-holder or producer. As regards the provision of Clause 4 relating to acquisition, it may be that Chari had forged the written orders, but it cannot be said that the authority to acquire Iron and steel under those written orders was wanting. I am therefore of the view that the appellants did not commit the offence punishable under Rule 81 (4), read with Rule 121, Defence of India Rules, by abetting transgression of any of the said clauses of the Iron and Steel (Control of Production and Distribution) Order.
35. (2) Sher Singh Arora : The prosecution case relating to this instance was that as a motive or reward for issuing written orders as D. I. S. C. and expediting supply of material by the Stock-holders' Association as its Chairman in favour of the various firms of which Sher Singh Arora P. W. 2 of Kanpur was the proprietor, Chari committed the offence under Section 161, I. P. C., by accepting from him a bribe of Rs. 5000/- between the 1st and 10th of May, 1946, and a like sum between the 8th and 14th of September, 1946, and he committed that offence or, in the alternative, one punishable under Section 165, I. P. C., by accepting certain valuable things without consideration, to wit, a three-piece sofa set, a centre piece, two stools and a revolving chair, Exhibits 16 to 21, in January 1946; that Chari and Vaish committed the offence under Section 467, I. P. C., or in the alternative under Rule 47 (3), read with Rule 47 (2) (a), Defence of India Rules, by antedating two written orders or licences Exhibits P. 535 and P.536; and that they both further committed the offence punishable under Rule 81 (4), read with Rule 121, Defence of India Rules, with regard to these licences as stated in connection with the first instance.
36. For reasons recorded already while dealing with the first instance, the charge under Rules 811 (4) and 121, Defence of India Rules, cannot be said to have been made out against either of the two appellants. For the same reasons, Vaish cannot also be held to be guilty of forgery. The remaining charges against Chari need a more detailed examination. And the first in importance is the one of bribery. The charge under Section 165, I. P. C., in respect of acceptance of furniture by Chari seems to be wrong.
The allegation being that the same was accepted as a motive or reward to grant licences and expedite supply of material, the proper section was 161, I. P. C. That presumably is why the offence under Section 165, I. P. C., is not one of those for which there has been any conviction. In regard to the payment of Rs. 10,000/- in two instalments, the cash book Ex. P. 290 containing entries about the sums and seized from the house of Sher Singh Arora by S. I. Anwar Husain P. W. 8 on 16-9-1946 does not appear to afford the requisite corro-boration. It is a copy book of which only 15 pages or so are posted. Entries were not made daily, nor were daily balances struck.
It does not therefore appear to have been regularly kept in the course of business. Moreover, the entries do not purport to be debited to Chari but to Sher Singh Arora. Payment of cash bribe would not appear therefore to have been made out. But receipt of furniture is admitted by Chari. Arora's statement is that he got the furniture except the revolving chair from the firm at Delhi for Chari at Chari's request and supplied the revolving chair out of his own office furniture, and that when he demanded the price Chari said he would compensate him in other ways. Leaving the revolving chair, the rest of the furniture was worth Rs. 425/-. Chari compensated Arora by granting him licences Exhibits P. 281, 282, 284,. 285, 286, 287, 629, 535 and 536 from January to March 1946 for purchase of about 550 tons of iron and steel and by giving him priority of supply by ordering immediate supply on Arora's application Exhibits P. 127, 128, 129, 131 and 132.
It is noteworthy that, while issuing orders to the Stock-holders' Association for immediate supply, Chari sought to justify some of them by saying that the material was required for defence purposes although Arora himself did not give that as the need in his applications. Chari was therefore going out of his way to accommodate Arora. As noticed already, these orders for immediate supply were a departure from the usual routine of supply 6 months after the application.
The statement of B. D. Soni P. W. 10, Superintendent Stock-holders' Association, to whom Chari addressed the said orders, that these priorities greatly disturbed releases appears therefore to be quite correct.
37. Chari's defence relating to the pieces of furniture was that 'he had given permission to Sher Singh Arora to keep these articles in his office so, that they may serve as advertisement and people may sit on them, because he had told me that he manafactured them. He had written in bold letters, thereon that they have been manufactured in his firm. It had been marked on one piece.'
This defence was based on the legend appearing on the back of only one piece, as admitted: 'Manufactured by the National Cycle Manufacturing Co., Kanpur'. This was the name given to the branch office in Kanpur of a company in Delhi, manufacturing conduit pipes and articles, like tubular furniture made therefrom styled the National Conduits, and of which Arora was the Managing Agent. The above inscription was on the back of the revolving chair, as testified to by, witnesses and the recovery memo, Exhibit P. 17, of the articles seized by the investigating officer L. S. Darbari P. W. 62 on 14-6-1947. The seized furniture was tubular furniture. It is proved from, the statement of Arora, supported as it is by the statements of Nanak Chand Tandon P. W. 50, his local manager, Jagmohan Bansal P. W. 15 manager of the Delhi firm and Baboo Lal Vaish P. W. 46Delivery Clerk in the Central Goods-shed Kanpur, and a number of documents proved by them, that the pieces of furniture other than the revolving chair were got manufactured by Arora in the Delhi firm and received from there, and that the revolving chair was supplied by Arora from his own office. This was due to the fact that a revolving chair was not included in the pieces originally demanded by Chari.
Chari expressed a desire to have a revolving chair after receipt of the other pieces from Delhi. Arora therefore supplied the revolving chair from his own Kanpur office. That explains why the revolving chair bore the aforesaid inscription. If advertisement had been the object, the inscription would much rather have been on the pieces got specially manufactured at Delhi. Moreover, it would be a strange phenomenon for a D. I. S. C., to lend his office to serve as an advertisement base for the goods of a firm, to say nothing of its being against officers conduct rules.
Those pieces were however not seized from the office, but from the residence of Chari, as testified to by the aforesaid police officer and Sri Bal Govind Singh P. W. 16, the Additional City Magistrate who supervised the seizure. The seizure was made from a building known as the Ayodhya Bha-wan part of which served as Chari's office and part as his residence. Cross-examination of the Magistrate made it all the more clear, while the statement of the police officer was not challenged in cross-examination. The list Ex. P. 17 is also corroborative of the statements of these two witnesses about the furniture in question having been seized from the residential portion of the building since the articles seized were all house-hold effects. Emplacement of furniture in the residence could hardly make for advertisement.
38. Certain statements appearing in the evidence of Sher Singh Arora and his local Manager Nanak Chand Tandon were drawn upon by the learned counsel for Chari. Arora's statement in the Sessions Court was that his manager knew how the said inscription was painted on the back of the chair, but his statement in the court of the Committing Magistrate was that he had got it painted. Nanak Chand Tandon also stated at the trial that Arora had asked him to have it done. That was more natural, and that was also the earlier version of Arora himself before the Magistrate.
It appears to have been the merest slip on the part of Arora therefore to have said at the trial that his Manager knew how the inscription was painted. In fact, it may even be true literally since 'how it was painted' might only refer to the manner of getting the inscription painted. Confronted with his statement in the Magistrate's Court, Arora rightly explained that he had made that statement since he had brought the chair from his office and he had instructed his manager to get his office chairs inscribed as aforesaid.
In any case, the so-called discrepancy would not appear to be attributable to any oblique cause. Reference was also made to the statement of Tandon that Arora had asked him to have 'Presented by National Cycle Manufacturing Co.' painted but the painter had inscribed 'Manufactured by Nation Cycle Manufacturing Co.' instead. This was evidently mere embellishment.
Another statement appearing in Nanak Chand Tandon's cross-examination and referred to by Chari's learned counsel was that the revolving chair was given by Mr. Arora to Chari for his office. But a revolving chair, unlike a sofa set, is meant for use in office. It must therefore havebeen used by Chari in his own office in the residential part of the house. Yet another statement elicited in Nanak Chandi Tandon's cross-examination strongly relied upon by Chari's learned counsel was to the effect that Arora had told the witness that he was taking the chair for the office of Chari, and that it was for this reason that the name of the firm was painted at the back of the chair and the same was done for the sake of advertisement. It was argued that this statement supported Chari's defence. Now, it appears that Nanak Chand was a witness who would readily draw upon his imagination.
He did it for the sake of embellishment when, as noticed above, he spoke of 'Manufactured' having been inscribed by the painter by mistake in place of 'presented'. It does not appear that the said inscription was put at the back of the chair on Chari expressing his desire, after having been presented with the other furniture specially ordered for him from Delhi, that he also required a revolving chair. That wish of Chari was complied with by Arora having taken to him a chair, as it was, from his own office. There was nothing strange therefore that such a witness should have readily given in to the suggestion in cross-examination that the inscription was made for the sake of advertisement.
That such was the reason for Tandon making the statement, and not because the inscription was sought to serve as an advertisement, would appear further if that statement is pitted against the other statement about 'manufactured' having been put in place of 'presented' due to the painter's mistake. If the painter had been asked to inscribe 'presented by the National Cycle Manufacturing Co.' it could not have been intended that the revolving chair should serve as an advertisement since an, inscription, describing the Company as donor would not necessarily convey the information that the piece had been manufactured by the Company.
Finally, there is on record an application filed on behalf of Chari himself which falsifies his defence and corroborates the prosecution. It is the application Ex. P. 15 which bears no date but which appears from the date on the court-fee stamps and various orders passed on it to have been filed in the third week of February, 1948, before the City Magistrate Kanpur for release of articles that had been seized on 14-6-1947.
In this application release of the entire household effects, including the sofa set and revolving chair was prayed for, but it was said that as on the report of the prosecuting inspector the Magistrate had ordered that the sofa set and the revolving chair were required as exhibits in the case the same may not be released. I am of the view that Chari's explanation as to how he came to be in possession of the aforesaid expensive furniture was baseless, and that the same had been presented to him by Sher Singh Arora as illegal gratification for the aforesaid favours shown to him by Chari. Chari was therefore clearly guilty of the offence under Section 161, I. P. C., in this second instance also.
39. With regard to the antedating of licences Exhibits P. 535 and P. 536, there is the oral evidence of Sher Singh Arora and Nanak Chand Tandon. The relevant application which was antedated at the suggestion of Chari is Ex. P. 294. And a reference to the quota register Ex. P. 62 shows that these licences, bearing numbers 3,61,717 and 3,61,721, also appear under a date that was tampered with. Adopting the reasonings given in considering the first instance, I hold that the prosecution case stands established against Chari and hedid commit in the present instance also the offence of forgery under Section 467, I. P. C., and alternatively under Rule 47 (3), read with Rule 47 (2) (a), Defence of India Rules, but that the offence has not been brought home to Vaish.
40. (3) Brahma Swarup Gupta : The prosecution case relating to this instance is that of payment of bribe to Chari by Brahma Swarup Gupta P. W. 11, proprietor of the firm Oriental Iron Trading Co., in Kanpur, of Rs. 3,000/- on 16-3-1946 For issuing of written orders in his favour by Chari for supply of large quantities of iron and steel on his applications Exhibits P. 635 and P. 638 dated 16-2-1946 and Exhibit P. 614 dated 19-2-1946.
The prosecution case further is that a sum of Rs. 600/- was paid as bribe to Vaish on 26-4-1946. There appears to be an overlapping of charges since Vaish had been charged under Section 161 for having received the aforesaid sum of Rs. 2,000/-also. There is no other charge against the appellants. Both the appellants have of course denied receipt of the amounts. Prosecution evidence in support of this charge under Section 161, I. P. C., against the two appellants consists of the statements of Brahma Swarup Gupta P. W. 11 himself and his partner Sat Narain who was examined under Section 540, Criminal P. C.
Being bribe-givers themselves, both these witnesses were accomplices and their testimony required independent corroboration. This corrobora-tion was sought by the prosecution in the cash book Exhibit P. 266 seized from their possession by Sardar Mahendra Singh P. W. 14, Sub-Inspector Anti Corruption Kanpur, on 15-1-1947. Along with this cash book was also seized another cash book Exhibit P. 663, which purports to relate to a period immediately before the period covered by the cash book Exhibit P. 266. Entries in respect of the aforesaid sum of Rs. 2,000/- and Rs. 600/-appear in the cash book Exhibit P. 266. It appears however that the entries relating to the said sums were not made in Exhibit P. 266 as part of the other entries purporting to have been made in continuation of the earlier cash book Exh. P. 636 but on three pages at the other end of the copy book.
These stray entries could be made at any time. Brahma Swarup Gupta admitted in cross-examination that the entries noted at the back of Exhibit P. 266 represented his 'private noting' but he added that these notings were mentioned in the Kachchi and Pakki rokar bahis which he maintained. These Kachchi and Pakki rokar bahis have however not been produced although, according to the witness, they were also seized by the police. It appears therefore that not only can the entries in question in Exhibit P. 266 not be said to have been made in a book of account regularly kept in the course of business within the intendment of Section 34, Evidence Act, but the suppression of Kachchi and Pakki rokars renders the entries highly suspicious. Accomplice evidence in this instance therefore lacks corroboration. The aforesaid charges of bribery cannot therefore be said to have been brought home to the appellants.
41. (4) Banwari Lal Saraswat : The prosecution case relating to this instance is that in return for granting a number of licences for purchase of iron and steel Chari was given by Banwari Lal Saraswat P. W. 2 a secondhand refrigerator worth Rs. 1,200/- on or about29-3-1946 and D. C. Orient ceiling fans worth about Rs. 300/- in the last week of August 1940 as bribe, and that he antedated the licences Exhibits P. 110, P. 109 and P. 94 from 29-3-1946 to 23-3-1946 and thereby committed forgery. This charge of forgery is against Vaish also.
42. The crucial question, both for the charge, under Section 161 and that under Section 467, I. P. C., is whether the refrigerator and the fans were accepted by Chari as illegal gratification. Proof of this fact is necessary in respect of the charge of forgery since deriving of advantage to himself by Chari would thereby stand established. There is no doubt, as noticed earlier, that, if antedating is proved, the charge of forgery could also be brought home to the accused if it were possible to prove that the antedating was done dishonestly and with intent to cause damage or injury to the public or to any person.
In other words, the charge of forgery could be brought home to the accused if, irrespective of any gain to the accused, the prosecution succeeded in establishing damage or injury or wrongful loss to another. Of this, however, there is no evidence in the present case. It might perhaps be suggested remotely that damage or injury or loss was caused to the public by reason of the granting of licences in respect of such huge quantities in favour of a particular person. That would however be a matter of mere surmise since there is nothing to show that anybody else who also needed the commodity was deprived of it.
Even if any priority was created by ordering immediate release of material, there is nothing to show that it resulted in any deprivation, or even in delay, in the case of others. That being so, for proof of the offence under Section 467, I. P. C., as well as that under Section 161, I. P. C., it was necessary for the prosecution to prove that the aforesaid articles had been accepted by Chari as illegal gratification.
43. Chad's defence with regard to the aforesaid articles was that he had taken them on hire. With regard to the refrigerator he stated further that as it was defective and he was told by a mechanic that it was past repair Banwari Lal Saraswat took it back. It is also the prosecution case, as admitted by Banwari Lal Saraswat P. W. 2 and testified to by two employees of the Electric Supply Co. at Kanpur, L. N. Shukla P. W. 20 and A. ' Maul P, W. 21, that early in May 1946 the refrigerator developed some defect, but the same could not be repaired in the U. P. Electric Supply Co.
The prosecution case is that the refrigerator was thereafter given by Chari for repair to K. S. Reuben P. W. 29, a mechanic, at the suggestion of Banwari Lal Saraswat. The prosecution has also produced evidence to show that Banwari Lal Saraswat had purchased the second-hand refrigerator from Abdul Rashid P. W. 27. That may be so, but the crucial question is whether it had been given to Chari by Banwari Lal as bribe or whether Chari had taken it on hire from him. It is immaterial therefore whether Banwari Lal Saraswat had purchased it from Abdul Rashid or somebody else.
It appears that the refrigerator was allowed to remain with Reuben until 31-5-1948 when it was attached in execution of a decree against Reuben, as shown by Exhibit P. 23. Now, this circumstance of the refrigerator having been given for repair to Reuben could not also said to be determinative of the aforesaid crucial question (since it could have been given to him for repair equally by Banwari Laland by Chari) whether Banwari Lal Saraswat had already made a gift of it to Chari or only hired it to him.
In support of the prosecution case that the refrigerator had been presented to Chari b'y way of illegal gratification there is however only the accomplice evidence of Banwari Lal Saraswat himself. Corrobaration for that evidence was sought to be found in the letter Exhibit P24 dated 6-5-1946 which Chari wrote to the Electric Supply Co. Kanpur for the repair of the refrigerator because in this letter he described the refrigerator as 'my personal one.' That is however a description which even a person who had taken the refrigerator on hire could have used in order to impress upon the Electric Supply Co. that the work required their special attention. It appears that the Electric Supply Co. had at the same time been requested telephonically by Banwari Lal Saraswat for the repair of the refrigerator, and Exhibit P. 25 dated 7-5-1946 is the reply which the company sent to Banwari Lal Saraswat.
A copy of it was also sent to Chari, presumably by way of reply to Chad's letter Exhibit P. 24. The contents of Exhibit P. 25 show that while telephoning the Electric Supply Co., Banwari Lal Saraswat had described the refrigerator as his own. This has the effect not only of nullifying the aforesaid description of the refrigerator contained in Chad's letter, but it lends support to the defence contention that the refrigerator had been hired to Chari since Banwari Lal Saraswat continued to treat himself as its owner. It was urged by the learned counsel for the State that the story of hiring was unbelievable because Banwari Lal Saraswat was not a dealer in refrigerators or fans. No books of account were produced to show what exactly Banwari Lal Saraswat's business was, but this much at least was admitted by him that he held an agency for Orient fans. It may be stated here incidentally that the fans were seized on 14-6-1947 by one of the investigating officers from Chari's residence. That did not however detract from the defence plea that the fans had been taken on hire.
There is no doubt that a suspicion arises that the refrigerator ,and the ceiling fans may have been accepted by Chari as illegal gratification in view of the fact that he had granted licence for a large quantity of the commodity in favour of Banwari Lal Saraswat, but suspicion cannot take the place of proof. I am therefore of the view that the prosecution has not been able to prove the charge under Section 161, I. P. C., against Chari. That being so, the charge of forgery by antedating licences should also fail since the element of gain to Chari is wanting. The other appellant Vaish could not possibly be held to be guilty of the offence under Section 467 I. P. C. even if that charge stood established against Chari since there was no allegation, much less proof, that there was payment of any illegal gratification to Vaish. The charge relating to this instance therefore fails against both the appellants.
44. (5) Kali Charan: In this instance the charges against Chari are of acceptance of a bribe of Rs. 2,000/- for granting the licence Exhibit P. 339 for 50 tons of tin plates and Rs. 100/- as part bribe for granting the licence Exhibit P. 104 for 20 tons of corrugated sheets, and for forgery by antedating those licences from 29-3-1946 to 19-3-1946. The charges against Vaish are of abatement of acceptance of the aforesaid bribes by Chari and of himself forging the said licences.
There are charges against both under Rule 81(4)/ 121, D. I. R., also, but, for reasons already record-ed, they are not being considered in this instance or in any other instance following. The aforesaid licences were granted on foot of applications Exhibits-P. 315 and P. 104A which are said to have been presented to Chari on 30-3-1946 by Kali Charan P. W. 43 on behalf of the firms Central Trading Agency and Mool Chand Shyam Lal of Agra. Kali Charan was the Munim of those firms and Bulaqi Das Goel P. W. 13 and Ram Saran Das P. W. 47 were some of the proprietors of the firms. These applications, which are said to have been presented to Chari on 30-3-1946, are alleged to have been been typed at Agra on 29-3-1946 by one S. V. Shastri, an employee in the said firms.
At the same time, the aforesaid sums of Rs. 2,000/- and Rs. 100/- are said to have been paid to Chari. According to Kali Charan payment of bribe was settled at Rs. 40/- per ton and Rs. 100/-represented part payment of bribe relating to the corrugated sheets, the rest having been promised to be paid later. Chari is said to have asked Kali Charan to change the date of the applications to 19-3-1946, but Kali Charan said that this could not be done as the proprietors were at Agra. Chari therefore himself changed the dates of the applications and endorsed an order on each application for issue of licence and antedated his orders as having been passed on 23-3-1946.
The balance of Rs. 700/- payable to Chari in respect of the corrugated sheets was however not sent to him. The Deputy Superintendent of Police L. S. Darbari P. W. 62 has proved seizure of the documents under recovery memo Exhibit P. 643. Both the appellants denied the charges. Chari said the had passed the orders on the dates on which they purported to have been passed, and Vaish pleaded that whatever he did was done under the orders pf Chari.
45. A reference to the applications and to Exhibit P. 316, carbon copy of the application Exhibit p. 104-A does show that Chari did antedate his orders and therefore also the licences but on the crucial question of payment of the bribes on which depended his culpability for both the offences there is only the uncorroborated testimony of the accomplices Kali' Charan, Bulaki Das and Ram Saran Das.
Both Kali Charan and Bulaki Das admit that they maintained account books in which all the expenses of the firms were recorded; but none of those books of account was produced. One of them, a rokar 'bahi, is said to have been seized by L. S. Darbari. Kali Charan admitted that there was no entry in the books of account relating to the aforesaid sum of Rs. 2,100/- and both he and Bulaki Das professed ignorance as to whether the travelling expenses of Kali Charan and Shastri (the latter is also said to have come to Kanpur with Kali Charan) were entered in the books of account or not., It would appear therefore not only that there is no independent corro-boration of the accomplice evidence but that there has been a suppression of what would have formed good corroborative evidence.
In the circumstance, the allegation of payment of the aforesaid sum of Rs. 2,000/~ and Rs, 100/-to Chari as bribe cannot be accepted as true. It follows that as Chari derived no advantage, and as the antedating cannot be said to have necessarily caused loss, damage or injury to anybody else, the charge of forgery also fails. On this finding, failure of charge against Vaish follows as a necessary consequence.
46. (6) Ram Swarup Nigam: In return for a bribe of Rs. 1000/-, alleged to have been paid toChari on 3-4-1946 by Raj Bahadur P. W. 37, mana-ger of Ram Swarup Nigam P. W 36 (proprietor of the firm Nigam Bros, of Kanpur which manufactured agricultural implements and utensils), Chari is said to have issued the licence Exhibit P. 92 for purchase of 25 tons of tin plates and antedated his order and licence was issued on 23-3-1946. The application Exhibit P. 52 is said to have been presented to Chari for the licence on 3-4-1946, but it is said to have been antedated to 23-3-1946 at the instance of Chari. The charges against Vaish were of forging the licence and abatement of acceptance of the aforesaid sum of Rs. 1000/- by Chari.
47. Here again the accomplice evidence of Ram Sarup Nigam and Raj Bahadur suffers for want of independent corroboration. Raj Bahadur admits that account books were maintained, but the same were not produced and there was no explanation for their non-production. Rat Bahadur stated that Ram Swarup Nigam had told him that the amount was being paid out of the income of his Zamindari and it was therefore not entered in the books of account.
Besides this statement being unworthy of reliance on the very face of it, it is inadmissible being hearsay. The prosecution produced two witnesses, Yamin Khan P. W. 33 and Mohammad Hanif P.W. 53, who stated that they had also paid bribes to Chari, and that they were able to do so by Ram Swarup Nigam acting as the go-between. The evi-dence of these two witnesses besides being unsupported by any documentary evidence, cannot be said to be corroborative of the payment of the alleged bribe by Ram Swarup Nigam himself since they speak of payment of certain bribes which had nothing to do with the alleged payment of bribe by or on behalf of Ram Swarup Nigam. The charge in res-pect of payment of Bribe therefore fails and, as a necessary consequence also the charge of forgery against both the appellants.
48. (7) Shambbu Dayal Deep Chand Kapur Chand Jain: The charge in this instance' against both the appellants was only that of forgery of the licence Exhibit P. 343. The licence was granted in favour of the firm Shambhu Dayal Deep Chand of Baraut in the district of Meerut of which Kapur Chand Jain (P. W, 7 was a partner and Jagdish Prasad P. W. 9 this manager. The licence' was granted on the application Exhibit P. 296, Kapur Chand Jain profess-ed to have seen Chari on the 20th and 22nd of March 1946 when Chari is said to have asked him to apply with the recommendation of the Sub-Divisional Magistrate or some other gazetted officer.
He then returned, to Baraut and got the application typed by Jagdish Prasad. He also got the recommendation of Sri Prem Narain Jauhary p. W. 39 Sub-Divisional Magistrate endorsed on it on 26-3-1946 and that of Sri R. S. Singh P. W. 51 Agricultural Inspector on 27-3-1946. He then saw Char with the application on 29-3-1946, and, according to the witness, payment of bribe to Chari at Rs. 50/- per ton was then settled and the witness was asked to see Chari at his house in the evening. The witness did not however go to Chari in the evening or ever afterwards but received the licence subsequently at Baraut along with the intimation slip Exhibit P. 300.
The antedating of the order passed by Chari on 23-3-1946 and of the licence issued on foot of that order is no doubt clear in view of the dates of the aforesaid recommendations, but here again no advantage was derived by Chari since bribe is only said to have been settled but not paid. For reasons al-ready recorded, the charge of forgery against both the appellants therefore fails.
49. (8) Vishnu Bros. : The charge in this in-stanca also against both the appellants was one of forgery of licence. There was no payment of bribe. Briefly, the evidence was that Vishnu Chand Gupta P. W. 18 presented before Chari on 29-3-1946 his application Exhibit P. 102A dated 28-3-1946 and bearing the recommendation of that very date of Sri Jai Prakash P. W. 24, the Sub-Divisional Officer.
He left the application with Chari and got intimation slips subsequently but no licence. The date of the application purports to have been changed to 20-3-1946 and Chari's order bears the date 23-3-1946. In view of the date of the Magistrate's re-commendation there is no doubt that Chari antedated his order and the licence but here again as there was no allegation, much less proof, of payment of any bribe, the charge of forgery against both the appellants fails.
50. (9) Gauri Shanker Goel: In this instance lalso the only charge is of forgery of the licence Exhibit P. 82 against both the appellants. Gauri Shanker Goel P. W. 63 professes to have taken his, application Exhibit P. 82A with the recommends tion of the Magistrate Sri G. S., Churamani P. W. 45-dated 27-3-1946, and a few days later he professes to have received the licence in a registered cover.
Gauri Shanker Goel says that bribe was demanded from him but he paid none because he was a poor man. In this instance also therefore although Chad did antedate his order and therefore the licence the charge of foregery cannot be said to have been made out because there is no evidence of Chari having derived any benefit. The charge of forgery against Vaish also fails not only because of that charge filing against Chari but also because Vaish appears to have prepared the licence in compliance with the order of Chari.
51. (10) Bhagwan Das : This was the only, instance of grant of licence for purchase of scrap iron which was decontrolled from and on 1-1-1946 The charge against Chari was that in return for a bribe of Rs. 400/- paid to him on 3-1-1946, by Bhagwan Das P. W. 60, proprietor of the Kanpur Iron Manufacturing and Supply Co. and Manager of his father's firm Baldeo Das Daya Ram, Chari antedated the licence Exhibit P. 278 as having; been ordered to be issued prior to the control. The charge against Vaish was that he had also received a bribe of Rs 100/- on the same date from Bhagwan Das and committed forgery by preparing the aforesaid licence.
The prosecution proved the antedating from the evidence of A. K. Sinha P. W. 30, a clerk in the office of the D. I. S. C. at Kanpur according to whom the last written order passed by Chari's predecessor was Exhibit P. 272 dated 31-12-1945 That according to the testimony of A. K, Sinha and the other prosecution witnesses, was the date on which Talwar handed over charge to Chari late in the afternoon after which no work was done that day in the office. But here again the prosecution sutfers from want of independent corroboration of the accomplice testimony of Bhagwan Das relating to the payment of bribes to the appellants.
Apparently, the only corroborative evidence could have been the books of account of Bhagwan Das but he admits that he made no entry in his books of account relating to the payment of the aforesaid sums of bribe to the appellants. The explanation he offered was that the sums were paid out or his private account, and he kept no account book relating to his private account. That explanationmay or may not be correct; but the fact remains that the evidence of Bhagwan Das remains uncpro-borated. The charge in question therefore fails against both the appellants in this instance also.
52. From what has gone before, therefore, it appears that the charges against Chari in respect of offence punishable under Sections 161 and 467, I.P.C., have been brought home to him only in the 1st and 2nd instance, and no charge has been brought home to Vaish in any of the 10 instances. As regards the charge of criminal conspiracy under Section 120B, I. P. C. the conspiracy is said to have been formed by Chari with Vaish and others, meaning presumably the other employees in his office.
None of the charges has however succeeded against Vaish. The other employees in the office would also appear to have done their part of preparing the licences under the orders of Chari who was their superior officer. Those other employees also cannot therefore be said to have acted in conspiracy with Chari. The charge under Section 120-B, I. P. C., therefore fails against both the appellants.
53. In the result, the appeal is allowed so far as the appellant Debi Chand. Vaish is concerned; the convictions and sentences of Delhi Chand Vaish are set aside and he is acquitted. Should the fine have already been realised from him the same shall be refunded. Debi Chand Vaish need not surrender to his bail; his bail bonds are discharged.
The appeal of Raghava Rajagopala Chari is dismissed subject to the modification that whereas hisconvictions and sentences under Sections 161 and 467,I. P. C., are maintained, his convictions and sentencesunder Section 120-B I.P.C., and under Rule. 81(4), read withRule 121 of the Defence of India Rules are set aside &he; is acquitted of these two offences. The sentencesof imprisonment of R. R. Chari under Sections 161 and 467, I. P. C., will run concurrently. R. R. Charishall surrender to his bail and serve out the sentences.