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Banwarilal Jhunjhunwalla and ors. Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. Nos. 44, 45 and 65 of 1958
Judge
Reported inAIR1959Ker311; 1959CriLJ1172
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 1(2), 4(1), 177, 179, 180, 182 and 239; Prevention of Corruption Act, 1947 - Sections 5(1) and 5(2); Indian Penal Code (IPC), 1860 - Sections 120B and 420; Criminal Law (Amendment) Act, 1952 - Sections 6(1), 7(2) and 7(3)
AppellantBanwarilal Jhunjhunwalla and ors.
RespondentUnion of India (Uoi)
Appellant Advocate K.T. Thomas and; Shellim Samuel, Advs. (in Cr. R. P. 44 of 1958),;
Respondent Advocate K.V. Suryanarayana, Adv. General
Cases ReferredGafur Karimbax v. Emperor
Excerpt:
criminal - jurisdiction - sections 1 (2), 4 (1), 177, 179, 180, 182 and 239 of criminal procedure code, 1898, sections 5 (1) and 5 (2) of prevention of corruption act, 1947, sections 120b and 420 of indian penal code, 1860 and sections 6 (1), 7 (2) and 7 (3) of criminal law (amendment) act, 1952 - petition for setting aside order passed by special judge and for quashing charges under sections 109, 120b, 420 and 5 (2) - petitioners contended that special judge has no jurisdiction - inspection made by delinquent servant at places within state of kerala - certificates purported to have been signed and dated by him at places within kerala - act of deception forming necessary ingredient of offences of cheating commenced in kerala - court of kerala has territorial jurisdiction under section.....orderraman nayar, j. 1. these three petitions may be disposed of together since they raise the same question -- in fact two of them are from the same case.2. the petitioners are some of the accused persons in c. c. nos. 1 and 2 on the file of shri t. r. balakrishna iyer, one of the two special fudges appointed under section 6 (1) of the criminal law amendment act, xlvi of 1952 for the whole state of kerala and specified under section 7 (2) of the act as the judge to try these cases. (crl. r. p. no. 44 is by accused 1 and 2 and crl. r. p. no. 65 by the 3rd accused in c. c. no. 1; and crl. r. p. no. 45 is by accused 1 to 3 in c. c. no. 2). 'objection was taken to the trial on the score of want of territorial jurisdiction, but by two separate orders, dated 18-1-1958, the learned special.....
Judgment:
ORDER

Raman Nayar, J.

1. These three petitions may be disposed of together since they raise the same question -- in fact two of them are from the same case.

2. The petitioners are some of the accused persons in C. C. Nos. 1 and 2 on the file of Shri T. R. Balakrishna Iyer, one of the two special fudges appointed under Section 6 (1) of the Criminal Law Amendment Act, XLVI of 1952 for the whole State of Kerala and specified under Section 7 (2) of the Act as the judge to try these cases. (Crl. R. P. No. 44 is by accused 1 and 2 and Crl. R. P. No. 65 by the 3rd accused in C. C. No. 1; and Crl. R. P. No. 45 is by accused 1 to 3 in C. C. No. 2). '

Objection was taken to the trial on the score of want of territorial jurisdiction, but by two separate orders, dated 18-1-1958, the learned special judge overruled the objection and proceeded to frame charges under Section 251-A(3) of the Criminal Procedure Code. The petitioners seek to set aside those orders and to quash the charges, the principal ground taken being, again, want of jurisdiction.

3. The facts relevant for the present purpose are brief: Accused 1 and 2 in each case whom I shall hereafter call the contractors (or rather the respective firms of which they arc partners) entered into contracts with the Director General of Supplies and Disposals, New Delhi,, for the supply of timber (bottom boards for railway wagons) of certain specified varieties to the Central Railway administration. In C. C. No. 1. the contract was for the supply of a total quantity of 1306.5 tons, at a cost of about Rs. 4 lakhs, in three varieties of hardwood, Ami, Kalpine and Haldu.

The contract was concluded in July 1953, and the several consignees were the District Controller of Stores, Central Railway, Matunga, Bombay, the Assistant Controller of Stores, Central Railway, Lallaguda (Hyderabad) and the Assistant Controller of Stores, Central Railway, Jhansi (U. P.). In C. C; 2, the contract was for the supply of a total quantity of 3071/2 tons at a cost of about Rs. 95,000 in the species, Benteak, Biney and Haldu to the same consignees, and the contract was concluded is February 1956.

The supply in both the cases was completed by August 1956, and in accordance with the terms of the contract, on despatch of the several consignments, the contractors from time to time drew 90 per cent, of the price thereof, from the Pay and Accounts Officer, Ministry of Works, Housing and Supply, New Delhi, on the strength of certificates issued by the inspecting officers nominated by the Director-Ceneral of Supplies to the effect that the, timber was of the contract quality. The contractors in both the cases reside and carry on business at Bombay, and their bills were submitted from that place.

The bills were passed at New Delhi by the Assistant Pay and Accounts Officer (on behalf of the Pay and Accounts Officer) and payment was made by him by means of cheques issued at New Delhi and encashed by the contractors at Bombay.

4. The supplies in both the cases were made mainly from this State, and 521 out of the 1306.5 tons concerned in C. C. No. 1 and 221 out of the 307.5 tons concerned in C. C. No. 2 were inspected and passed at various places within this State by an inspecting officer by the name of Thomson (an officer op the Central Railway, stationed at Bombay) who is the 6th accused in C. C. No. 1 and who was originally the 5th accused and now, after the discharge of the original 4th accused by the special judge, is the 4th accused in C. C. No. 2, Certificates, or inspection notes as they are called, to the effect that the timber supplied was of the contract quality were issued to the contractors by Thomson at the several places within this State, and it is on the strength of these certificates which they attached to their bilk (which again gave full particulars of the Quantity, quality and price of the timber supplied) that the contractors drew the money from the Pay and Accounts Officer.

5. Accused 3, and 4 and 5 in C, C. No. 1 and the 3rd accused in C, C. No. 2 are employees of the contractors concerned and the accusation isthat the accused persons in each case conspired tocheat, and did in fact succeed in cheating, the officers of the Government of India by supplying inferior jungle wood of low value on the false 'representation that it was timber of the contract quality and thus deceiving them into paying the stipulated price. A necessary part of the conspiracy was the issue of false certificates by Thomson, and' Thomson being a public servant this was conduct amounting to criminal misconduct in the dischargeof official duty within the meaning of Section 5(1)(d), and punishable under Section 5(2) of the Prevention ofCorruption Act, II of 1947.

The conspiracy was thus to commit offences* under Section 420 of the Indian Penal Code and under Section 5 (2) of the Prevention of Corruption Act; and these offences were, in fact, committed.

6. under Section 7 read with Section 6 (1) of the Criminal Law Amendment Act, XLVI of 1952, the offence under Section 5 (2) of the Prevention of Corruption Act and the offence of conspiracy to commit.that offence are triable only by a special judge appointed under that Act and under Section 7 (3) the special judge may also try the offences of cheating and conspiracy to cheat which, under Section 239, Criminal Procedure Code, can be jointly tried with the former offences; and that is why the cases have been laid before the special judge.

7. The charges actually framed in each case are; conspiracy to cheat and to commit criminal misconduct in the discharge of official duty punishable under Section 120-B, I. P. C., read with Section 420, I. P. C., and Section 5 (2) of the Prevention of Corruption Act as against all the accused; cheating punishable under Section 420, I. P. C., as against the contractors; abetment of the said offence of cheating punishable under Section 109 read with Section 420, I. P. C., as against the remaining accused; and criminal misconduct in the discharge of official duty punishable under Section 5 (2) of the Prevention of Corruption Act as against Thomson.

8. As I have already said, the main, and practically the only, objection taken is one of territorial jurisdiction and I may observe at the very outset that, in view of the decisions in Babulal v. Emperor. AIR 1938 PC 130 and S. Swamiratnam v. State of Madras, (S) AIR 1957 SC 340, it is not' disputed that 'he conspiracy to commit the offences mentioned, the abetment of those offences, and the commission of the offences- themselves, arise out of the same transaction and that therefore these several offences can be properly joined under Section 239(d)of the Criminal Procedure Code,

Nevertheless I do not think that the fact that several offences can properly be charged and tried together under Chapter XIX of the Code can invest the court with territorial jurisdiction where otherwise it has none; in other words the court must have territorial jurisdiction to try each one of the offences and the fact that it has such jurisdiction over one of the offences will not give it jurisdiction to try the remaining offences merely because those offences can be jointly tried with the offence over which it has jurisdiction.

The rules regarding joinder of charges in Chapter XIX of the Code have nothing to do with territorial jurisdiction which has to be determined with reference to the rules in Chapter XV of the Code, and, in the case of a special law, also with reference to any special provision in that law in that behalf. There seems to be a dearth of authority on this aspect of the mutter and the only decisions '' brought to my notice are Bisseswar v. Emperor, AIR 1924 Cal 1034 and Sachidanandam v. S. Gopala Ayyangar, AIR 1929 Mad 839. With due respect. I think that those cases were correctly decided, but it would appear from certain observations of the learned special judge that he has understood the latter case to say just the contrary of what it actually does say.

9. The nest question is whether the rules in Chapter XV of the Criminal Procedure Code apply to the present case. It has been contended on behalf of the petitioners' that in a case falling within Section 6 (1) of the Criminal Law Amendment Act, XLVI of 1952, Section 7 (2) of that Act makes sole and exclusive provision on the question of territorial jurisdiction and these rule out the application of Chapter XV of the Code. It is also said that some of the provisions of that chapter are inconsistent with the said section.

10. This contention seems to me unacceptable. Section 8 (3) of the Criminal Law Amendment Act, 1952, expressly lays down that the provisions of the Codeshall apply to proceedings before a special judge so far as they are not inconsistent with that Act, and I see little substance in the argument that the word 'proceedings' in that section applies only to the proceedings after cognizance has been taken and cannot include the act of cognizance which act involves a consideration of the question of territorial jurisdiction.

That apart, having regard to the definition of 'offence' in Section 4(1) of the Criminal Procedure Code there can be little doubt that the rules in Chapter XV thereof determine the place of inquiry or trial in respect of all offences, whether under the general law or under any special or local law, except to the extent that they are excluded under Section 1 (2) by reason of any special form of procedure prescribed or any special jurisdiction or power conferred by any other law.

The question then is whether Section 7 (2) of the Criminal Law Amendment Act, 1952, makes special and complete provision in the matter of territorial jurisdiction in respect of the offences specified in Section 6 (1) so as to exclude the operation of the rules in Chapter XV of the Criminal Procedure Code or whether those rules are in any way inconsistent with that section.

11. I do not think that Section 7(2) of the Criminal Law Amendment Act, 1952, makes any attempt to supplant Chapter XV of the Code or is in any way inconsistent with the provisions of that Chapter. It runs as follows:

'Every offence specified in Sub-section (1) of Section 6 shall be tried by the special judge for the area within which it was committed or where there are more special judges than one for such area, by such one of them as may be specified in this behalf by the State Government.'

It seems to me that all that this sub-section does is to state the general rule embodied in Section 177 of the Criminal Procedure Code as a preliminary to empowering the State Government to specify which of the special judges shall try a particular case if there happen to be more than one special judge for the same area. For finding out which is the area within which an offence has been committed one has still to depend on the rules in Chapter XV of the Code, and in this connection it is to be remembered that Sub-section (2) of Section 7 of the Criminal Law Amendment Act does not contain the non-obstante clause with which Sub-section (1) of that section begins. That is so clear an indication as any that the general provisions of the Code of Criminal Procedure are not excluded.

12. Notwithstanding the use of the word 'ordinarily' in Section 177 of the Criminal Procedure Code (that word, it seems to me has an eye to exceptions by reason of a direction under Section 178 or under the several sections providing for the transfer of cases), I do not read Sections 179, 180 and 182 (the sections with which we are now concerned) as exceptions to the general rule embodied in Section 177 and repeated in Section 7 (2) of the Criminal Law Amendment Act, 1952. They are rather amplifications of that rule telling us where exactly an offence must be taken as committed in the several circumstances stated.

Where a thing is an offence by reason of anything that has been done and also by reason of any consequence that has ensued, then under Section 179 the offence must be deemed to be committed both at the place where the thing was done and the place where the consequence has ensued. Where an act is an offence, not in its own right, but byreason of its relation to another act which is an offence, then according to Section 180 the former offence is committed in the place where the former act was done as also in the place where the latter act was done.

When it is uncertain where among severalplaces an offence was committed, or where an offence is committed partly in one place and partlyin another, or where it is a continuing offence andcontinues to be committed in more than one place,or where it consists of several acts done in differentplaces, then under Section 182 the offence must be deemed to have been committed in all the places. Itseems to me beyond doubt that it is with reference to these rules, embodied in Sections 179, 180 and182 of the Code, that we have to determine whether the offences now in question were committedwithin the area of the learned special judge, inother words within the State of Kerala,

To accept the argument that these rules do not apply and that under Section 7 (2) of the Criminal Law Amendment Act, 1952, the entire offence must have been committed within the area of a special judge to give that judge jurisdiction to try it, would lead to impossible results. It would mean for example that when an offence under Section 5 (2) of the Prevention of Corruption Act, is committed partly in one area and partly in another or when it consists of several acts done in different areas, as such an offence well might be fas for example when a public servant obtains gratification in different areas and thus qualifies as a habitual, or when he misappropriates in one area property entrusted to him in another or abuses his position in one area and obtains a pecuniary advantage in another), no court would be able to try it.

The ordinary courts would be excluded by Section7 (1) of the Criminal Law Amendment Act, 1952, and every special judge by Section 7 (2) by reason of the fact that the offence was not committed solely within his area.

13. Taking the first offence under Section 5 (2) of the Prevention of Corruption Act, alleged to have been committed by Thomson, there can be little doubt that it was committed within the State of Kerala where he passed inferior jungle-wood as timber of the contract quality and issued false certificates to that effect. (Of course these statements are as yet no more than assumptions based on the prosecution case, in accordance with which the question of jurisdiction has to be determined and it is unnecessary to repeat this caution at every stage of the discussion).

When Thomson did this, he was undoubtedlyabusing his position as a public servant, and it is a legitimate inference that he thereby obtained for himself or at least for the contractors, a pecuniary advantage. The act of abusing his position as a public servant certainly took place within the Kerala State where the false certificates were issued, and even if the consequence of obtaining a pecuniary advantage for himself or for the contractors which consequence makes that act an offence took place elsewhere, under Section 179, Criminal Procedure Code, the special judge for Kerala would have jurisdiction to try the offence. That the special judge has jurisdiction to try Thomson for the offence under Section 5 (2) of the Prevention of Corruption Act is, in fact, not disputed.

14. Once this position is reached it seems to me that the language of Section 7 (3) of the Criminal Law Amendment Act, 1952, is wide enough to invest the special judge for Kerala with jurisdictionto try all the remaining offences irrespective of where they were committed since all these offences can, under the provisions of Section 239(d) of the Criminal Procedure Code, be charged at the same trial with the offence under Section 5 (2) of the Prevention of Corruption Act committed by Thomson. It would indeed make 'for convenience, and would rarely occasion hardship if all persons and offences that can be tried together are so tried by one court rather than that they should be tried separately by separate courts merely because the venue of the several offences happens to fall in different limits.

It might well be that Section 7 (3) of the Criminal Law Amendment Act, 3952, was designed to supply the lacuna in the Criminal Procedure Code, and to achieve this object in respect of cases falling within the scope of that Act, and it is to be noted that Section 7(2) which insists on territorial jurisdiction applies only to offences specified in Section 6(1). But the view is possible that Section 7 (3) has nothing whatever to do with territorial jurisdiction but only empowers special judge who could otherwise try only the offences specified in Section 6(1) to try also other offences connected with such an offence, and that territorial jurisdiction is a necessary requisite for the trial of both classes of cases.

This view gains support from the fact that Section 7 (3) applies only to offences other than those specified in Section 6(1) so that it would not enable a special judge to try two or more offences coming within Section 6(1) committed in different areas even if they are connected and can be charged jointly. That being so the intention could not have been to invest a special judge with extra territorial jurisdiction when the connected offence happens to be one not specified in Section 6(1). Since even the learned Advocate-General for the prosecution seems to be inclined to this latter view I think it would be safe to decide the question of jurisdiction in respect of the remaining offences in accordance with the rules in Chapter IV of the Code.

15. We shall go next to the offence of conspiracy to commit the offence under Section 5 (2) of the Prevention of Corruption Act, a charge that has been levelled against all the accused. That is an offence specified in Section 6 (1) of the Criminal Law Amendment Act, 1952, and under Section 7 (1) of that Act only a special judge can try it. The question is whether the special judge for Kerala has territorial jurisdiction, in other words whether the offence of conspiracy was committed within the State of Kerala, arid this question, as I have already said, has to be decided with reference to the rules, in Chapter IV of the Code of Criminal Procedure.

16. It seems to me that Sections 179, 180 and 182 of the Code of Criminal Procedure apply to give the special judge for Kerala the necessary jurisdiction. Now it is no doubt true that, as laid down by the Supreme Court in Leo Roy Frey v. Supdt, District Jail, Amritsar, AIR 1958 SC 119, that criminal conspiracy punishable under Section 120-B of the Indian Penal Code is an offence in itself quite different and distinct from the offence that is the object of the conspiracy and quite independent of whether that object is achieved or not. But it is to be noticed that under Section 120-B(1), Indian Penal Code, a conspiracy to commit' an offence is punishable in the same manner as an abetment.

In other words, the punishment depends on whether the offence which is the object of the conspiracy is committed or not. I am in respectful agreement with the view expressed in In re Jivandas Savchand, AIR 1930 Bom 490 (FB), that, inorder to attract Section 179, Criminal Procedure Code and enable the court where only the consequence hasensued, to try the offence compounded of the thingdone and the consequence that has ensued, thatconsequence must be an essential ingredient of theoffence itself. The particular offence charged mustbe not merely by reason of the thing done butalso by reason of the consequence that has ensued.

It seems to me however that where criminal conspiracy is punishable in a different manner and therefore becomes a different offence by reason of the commission of the crime which is the object of the conspiracy, that consequence is an essential ingredient of that particular offence of conspiracy. That even without the consequence, the conspiracy would be a completed offence docs not affect the position, (In illustrations (a) and (b) to Section 179, Criminal Procedure Code, there is a completed offence of hurt within the limits of court X irrespective of the consequences that ensued within the limits of Y or Z. Yet Y or Z has jurisdiction to try the different offence of culpable homicide or grievous hurt resulting from the consequences).

Therefore even assuming that the conspiracy in this case took place outside the State of Kerala that conspiracy has now become the particular offence with which the accused stand charged not merely by reason of the thing done, namely, the engagement in conspiracy, but also by reason of the consequence that has ensued, namely, the commission of the offence under Section 5(2) of the Prevention of Corruption Act. That consequence having ensued within the State of Kerala, I should think that the special judge for Kerala has jurisdiction to try the offence of conspiracy.

17. The application of Section 180, Criminal Procedure Code is even more certain. A conspiracy like an abetment is not an act which is inherently an offence. It is its relation to the other act which is its object that makes it an offence. Taking this particular case, it is by reason of the relation of the conspiracy to the act contemplated, namely, the commission of an offence under Section 5 (2) of the Prevention of Corruption Act, that makes the conspiracy an offence; and that is so whether that other act is done or not. For one act to be related to another it is enough if that other act is in contemplation, it is not necessary that it should be actually committed.

Doubtless a conspiracy to commit an offence is a completed offence the moment it is hatched and requires no further act before it becomes punishable under Section 120-B of the Indian Penal Code. But that does not in any way affect the fact that it is its relation to the offence that is its object that makes it an offence. An abetment to commit an offence may likewise be a completed offence even before the offence abetted is committed as, for example, when a person instigates another to commit an offence, or intentionally gives him prior aid for the commission of the offence, or engages with him in a conspiracy to commit the offence, provided that, in the last case, some act or illegal omission, not necessarily the offence contemplated takes place in pursuance of the conspiracy.

Hence for the purpose of Section 180, Criminal Procedure Code a conspiracy stands on much the same footing as an abetment; in fact when the conspiracy is to commit an offence which is actually committed, it is as much a criminal conspiracy punishable under g. 120-B of the Indian Penal Code as an abetment by conspiracy punishable underSection 109 of the Indian Penal Code. There is nodifference whatsoever between the two. 'Both conspiracy and abetment are acts which are offences byreason of their relation to the offence which is theirobject. . . .

Hence under Section 180 of the Code the conspiracy or the abetment can be tried by a court within whoso limits the latter offence is committed, and this is exactly what illustration (a) to that section says. Therefore, in the present case, the charge of conspiracy to commit the offence under Section 5(2) of the Prevention of Corruption Act can be tried by the special judge for Kerala within whoso jurisdiction that latter offence was committed.

18. The petitioners rely on the decisions in AIR 1924 Cat 1034, In re Dani, AIR 1936 Mad 817 and Emperor v. Pursumal Gerimal, AIR 1938 Sind 108, in support of their, contention that Section 180, Criminal Procedure Code cannot avail to invent the special' judge with jurisdiction in respect of the charge of conspiracy. The Calcutta decision really deals with the converse case. There, what I may call the primary offence, in that case theft, was sought to be tried, not in the district where that offence was committed but in the district where what I may call the related offence of conspiracy was committed.

To such a case, Section 180, Criminal Procedure Code which only authorises the trial of the related offence at the place where the primary offence is committed, and not the other way about, can have no application; and it was there decided, and if J may say so with respect, rightly decided, that the Court having jurisdiction over the related offence of conspiracy, could not try the primary offence of theft committed outside its jurisdiction, merely because the two offences could be tried together under Section 239 of the Criminal Procedure Code.

19. The Madras and the Sind cases are doubtless in point, and they do support the contention of the petitioners, But with great respect, I do not think that they were rightly decided. The Madras case no doubt said that a criminal conspiracy, punishable under Section 120-B read with Section 420 of the Indian Penal Code entered into at Bombay could not be tried by the Joint Magistrate of Pollachi within whose jurisdiction some of the acts of cheating in pursuance of the conspiracy were committed; but the decision does not consider Section 180 of the Criminal Procedure Code at all, and it contents itself with saying that the conspiracy was completed when the parties entered into their unlawful agreement and that it did not depend on the subsequent act of cheating.

In the Sind case, Section 180 was indeed considered, but it was held that because conspiracy is asubstantive offence in itself, independent of thecommission of the offence which is its purpose, andis not given in the illustrations to Section 180 (is oneof the offences which is an offence because of itsrelation to another offence, that section would notapply to give a court, within whose limits the otheroffence was committed, jurisdiction to try the conspiracy where it was entered into outside its limits.I have already shown how conspiracy, like abetment, is really a related offence within the meaning of Section 180 of the Criminal Procedure Code andhow, for the purpose of that section, there is nodifference whatsoever between the two. The illustrations to a section cannot be exhaustive and, inany case, the offence of criminal conspiracy punishable under Section 120-B was introduced into the IndianPenal Code long after Section 180, Criminal ProcedureCode was enacted.

In the present case, on the facts alleged, the accused might as well hove been charged of abetment by conspiracy punishable under Section 109 of the Indian Penal Code as of criminal conspiracy punishable under Section 120-B, and it would, to say the least, be it very curious result if the mention of Section 120-B rather than Section 109 were to deprive the special judge of the jurisdiction which he would otherwise have had.

20. This view that I am taking' is in accord with what was laid down in Bachan Pande v. The State, AIR 1957 AH 130, a decision relied upon by the learned Advocate General.

21. The learned Advocate-General would faring the case under Section 182 of the Criminal Procedure Code as well, and this applies also to the, charges of conspiracy to cheat and abetment of that offence. I think that he is right. Excepting eases where there is an approver, conspiracy, or for that matter abetment by instigation or conspiracy, is rarely to be proved by direct evidence. It is something to be inferred from the proved facts and circumstances, and from the facts and circumstances of the present case it is certainly difficult to say ' whether the conspiracy and abetment in this case took place in Bombay or within the State of Kerala. It looks as if they were committed partly in Bombay and partly in Kerala or that they consist of several acts done in both areas.

No doubt the prosecution case is that, even at the time they made the tender, the contractors had made up their minds to supply inferior timber; and this would imply that there was a conspiracy in Bombay between the partners of each firm, and perhaps also their employees, even before the contracts were entered into. There is also the allegation that subsequent to the contracts the contractors got Thomson appointed as an Inspector because he was previously known to them and because they expected to fall in with their designs.

It is said that this implies some sort of understanding with Thomson even at Bombay; but that is not necessarily so and the expectation might only have been based on previous knowledge of Thomsion's character and conduct. In any case the understanding need not have amounted to an agreement to commit an offence. However that 'might be, there is no knowing whether it was at Bombay or in Kerala that Thomson succumbed arid agreed to issue the false certificates. For ought we know, it might have been in Kerala where, at the time of the inspection accused 4 and 5 in C. C. No. 1, and accused 2 and 3 in C. C. No. 2, had come in order to efford Thomson the necessary accommodation and facilities as required by Clause 13 of the contract that this agreement was reached or, in other words, that Thomson was enlisted as a member of the conspiracy.

The charge of conspiracy as now laid includes also Thomson as a conspirator, and if his enlistment took place in Kerala, or if it is uncertain whether it took place in Bombay or in Kerala, then I think that under Section 182 of the Criminal Procedure Code, the Kerala Court has jurisdiction to try the offence of conspiracy as against all the conspirators even if the initial conspiracy was at Bombay. No doubt there is only one single conspiracy, and it might well be that that conspiracy began at Bombay. It 's also true that the subsequent enlistment of Thomson in Kerala could not have changed the conspiracy:

But, as I have said, the conspiracy AS now charged includes also Thomson who possibly joined it in Kerala. The conspiracy, in that view, wasa continuing transaction which continued in Kerala; Or looked at somewhat differently; the1 conspiracy of which' Thomson was a member was an offence committed' partly in' Kerala, or which consisted of several acts some of which were done in Kerala. Therefore under Section 182 of the Criminal Procedure Code the Kerala court can try the entire conspiracy. I see nothing in (S) AIR 1957 SG 340, which has been relied upon On behalf of the petitioners which is against this view.

On the other hand that decision seems to me to lend support to it. The fact that the conspiracy began at Bombay and was a completed offence there, does not mean that when the conspiracy has expanded by the enlistment of new members in other areas, the charge of conspiracy as against all tan be tried only in Bombay. It seems to me clear that it can be tried any place where any of the members joined the conspiracy. The entire conspiracy is a single transaction constituting one offence.

22. With regard to the abetment of the offence of cheating, there can be no doubt that the intentional aid rendered by Thomson by the issue of false certificates took place in Kerala; and it would appear that the employees of the contractors, who admittedly came to Kerela to assist Thomson in his task of inspecting timber, and who obtained the false certificates from him; also rendered intentional aid within the State of Kerala.

23. If is only the charge of cheating that presents some difficulty. Although it was the Government of India that was defrauded, the charge is of having cheated the Assistant Pay and Accounts Officer who passed the bills of the contractors and made the payments or behalf of the Government. And properly so, for, the olfence of cheating as defined in Section 415 of the Indian Penal Code necessarily involves a victim who is deceived. Being deceived is a mental act of which only a human person is capable, not an artificial person like a Government or a Corporation winch has no mind Io be deceived. And when, for instance, we say that the Government was cheated or that bank was cheated, it is in fact the human person that acted for the Government or for' the bank that was cheated in the sense in which that act is an offence under the Indian Penal Code.

Now, according to the charges framed, the human. person that was deceived was the Assistant Pay and Accounts Officer, New Delhi, not the Director-General of Supplies or the several consignees. He was deceived by the fake representations made in the bills submitted to him and in the certificates attached to those bills. Those bills were despatched from Bombay and were received by the victim at New Delhi, and so the act of deception which is the first ingredient of the offence took place at these two places.

The fraudulent or dishonest intention was also conceived in Bombay, and the delivery of the money' by the victim, which is the only other ingredient necessary to complete the offence of cheating, must be deemed to have taken place either in New Delhi where the cheques were issued or in Bombay where they were encashed. No part of the offence of cheating took place in Kerala., and what took place there, namely, the issue of false certificates by Thomson (who was not deceived but was on the contrary a party to the deception) was no more than a preparation for the offence. At the earliest, the offence of cheating can be said to have commenced only when the bills andthe certificates making the false representations were posted in Bombay. Therefore Section 182 of the Criminal Procedure Code cannot give jurisdiction to the Kerala court. The cheating being the consequence of the conspiracy, or the primary offence of which the conspiracy is a related offence, neither Section 179 nor Section 180 of the Criminal Procedure Code would authorise a trial for the offence of cheating in Kerala merely because the conspiracy took place, or must be deemed to have taken place, in Kerala, although they would, authorise the converse, namely, the trial of the offence of conspiracy either at Bombay or New Delhi. This is exactly what was decided in AIR 1924 Cal 1034.

24. So runs the argument on behalf of the petitioners and it seems to me sound so far as it goes, for, I do not agree with the argument of the learned Advocates-General that the passing of the inferior timber by Thomson within the State of Kerala, the issue of false certificates by him to the contractors, and the despatch of the goods by the contractors to the several consignees F. O. R. stations in Kerala, are acts which form part of the offence of cheating the Assistant Pay and Accounts Officer, New Delhi. They are at best only preparations for, or abetments of, that offence. And the rules in chapter XV of the Criminal Procedure Code do not invest the court for the area in which a preparation or abetment took place with territorial juridiction to try the actual offence committed outside its limits. But, it seems me, that what the argument for the petitioners fails to take note of is that there were acts committed by Thomson within the State of Kerala which initiated the deception that induced the delivery of the money and which acts are therefore part of the offence of cheating.

It is necessary to bear in mind that the ultimate victim of the cheating was the Government of India, and that the various persons acting for it in respect of the contracts, such as the Director-Genera! of Supplies who made the contract, the consignees who were to receive the goods, and the Pay and Accounts Officer who was to make the payments are but its human agencies, all forming part of the same institution and, in the ordinary course of business, expected to communicate with one another with regard to the execution of the contract.

Now, the inspecting officer prepares nine copies of his certificate passing the goods. Of these, we are handed over by him to the contractor of which three are submitted by the contractor to the Pay and Accounts Officer along with his bills for the first payment of 90 per cent of the price. The fourth is handed over to the contractor only after he has actually despatched' the goods and is to be sent by the contractor to the consignee, while the fifth is to serve as the contractor's office copy. It might be true enough that the act of handing over these false certificates by one conspirator to another cannot be said to have begun the act of deception which is part of the offence of cheating. But that is not all.

The inspecting officer also sends copies of his certificate, immediately after the inspection, to the Director-General of Supplies, to the consignee, and to the indentor, namely, the person at whose instance the Director-General entered into the contract, And it is only on receipt by the Pay and Accounts Officer from the consignee of his copy of the inspecting officer's certificate with his own certificate endorsed thereon, that the balance of 10 per cent of the price is paid to the contractor. Now it isto be expected, although perhaps there is yet no evidence adduced on the point, that the Pay and Accounts Officer does not make any payment merely on the strength of inspection certificates received from the contractor, but awaits confirmation from the Director-General of Supplies and the consignee on the basis of certificates received by them directly from the inspecting officer.

In any case, the final payment of 10 per cent is made only after the certificate is received through the consignee. The inspections made by Thomson at places within the State of Kerala and the certificates purport to have been signed and dated by him at those places. He has to despatch the copies intended for the Director-General of Supplies the consignee, and the indentor, immediately after the inspection, and so it is to be presumed that he did so despatch them in the ordinary course by post, from places in Kerala. That being so, the act of deception forming a necessary ingredient of the offence of cheating was commenced in Kerala and that I should think gives the court for Kerala the necessary territorial jurisdiction under Section 182 of the Criminal Procedure Code. The decision in Gafur Karimbax v. Emperor, AIR 1930 Bom 358 and In re Hormasji Ardeshir, AIR 1943 Bom 183, are authorities for this position.

25. The objection regarding jurisdiction fails, and although the only other objection, namely, that there is no prima facie case justifying the framing of a charge, has been specifically raised in Crl. R. P. Nos. 45 and 65 and may, with some difficulty, be read into Crl. R. P. 44 that objection has been argued before me only on behalf of the petitioner in Crl. R. P. No. 65, namely, the 3rd accused in C. C. No. 1. I think the objection is well founded so far as he is concerned. The learned Advocate-General has stated that the only evidence as against the 3rd accused in C. C. No. 1 is that of the three witnesses who' have been cited as P.Ws. 7, 146 and 148 in the charge sheet.

P.W. 7 is a timber merchant and from the record made of his statement in the course of the investigation, all that appears is that sometime in April or May 1955, the 3rd accused went to his office in Bombay and negotiated with him for the supply of bottom boards in jungle wood and placed an initial order for 250 tons, Further that the 3rd accused told him that the boards were to be supplied to the Central Railway in the fulfilment of a contract taken by the firm of the accused 1 and 2. There is no record whatsoever of all this, and the witness speaks only from memory.

But even if his evidence is accepted in entirety it would be quite insufficient to connect the order for 250 tons of jungle wood placed, it would appear, sometime in April or May, 1955, with the present contract for which the firm made a tender only on the 28th May, 1955 and which tender was accepted only on the 25th or 26th July, 1955. P.Ws. 146 and 148 are employees of the firm, and their evidence only shows that the 3rd accused as the manager of the firm used to give directions regarding the receipt and despatch of goods like bottom boards with which the firm was dealing, and used to give instructions in respect of its correspondence, the English part of which was being attended by P.W. 148.

But there is nothing in their evidence to show that the 3rd accused gave any directions or instructions in respect of the contract now in question. There might be the suspicion that the 3rd accused being the manager of the firm must have been party to its misdeeds. But it seems to me that,on the evidence available there is no reasonable chance of the prosecution securing a conviction against him. On that evidence there is no ground for presuming that the 3rd accused has committed any offence, and it would be an unnecessary harassment to require him to face a trial.

26. In the result. I dismiss Crl. R. P. Nos. 44and 45 of 1958. 'I allow Crl. R. P. No. 65 of 1958quash the charges framed against the 3rd accusedin C. C, No. 1, and direct that he be dischargedfrom the case.


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