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Bishnu Pada Chatterjee and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1945Cal441
AppellantBishnu Pada Chatterjee and ors.
RespondentEmperor
Cases ReferredReg. v. David Birkett
Excerpt:
- edgley, j.1. the appellants in these appeals are bishnupada chatterji alias makra, paresh nath kalwar, ganendra nath das and biswanath lala alias bombaiya. they were placed on their trial before mr. s.n. mukherjee, presidency magistrate, calcutta, on a charge of conspiracy to cheat various firms in calcutta, between june 1940 and may 1941 by dishonestly inducing them to deliver certain property by placing with them bogus orders purporting them to be from government officers or depositing with them bills signed for payment by government officers. there were subsidiary charges to the effect that in pursuance of this conspiracy, they cheated the vidyasagar cotton mills, the eastern national bank ltd. and messrs. heatly and gresham ltd.2. a complaint was filed against the appellants and their.....
Judgment:

Edgley, J.

1. The appellants in these appeals are Bishnupada Chatterji alias Makra, Paresh Nath Kalwar, Ganendra Nath Das and Biswanath Lala alias Bombaiya. They were placed on their trial before Mr. S.N. Mukherjee, Presidency Magistrate, Calcutta, on a charge of conspiracy to cheat various firms in Calcutta, between June 1940 and May 1941 by dishonestly inducing them to deliver certain property by placing with them bogus orders purporting them to be from Government officers or depositing with them bills signed for payment by Government officers. There were subsidiary charges to the effect that in pursuance of this conspiracy, they cheated the Vidyasagar Cotton Mills, the Eastern National Bank Ltd. and Messrs. Heatly and Gresham Ltd.

2. A complaint was filed against the appellants and their fellow conspirators by Inspector C.M. Ishaque, on 16th September 1941. The alleged conspirators mentioned in the complaint were: (1) Satishwar Bose alias Satis Chandra Bose who according to the evidence was formerly employed as an Inspector of Police. He died on 17th September 1942, while the proceedings in the lower Court were still pending; (2) Anilesh Chandra Ghose. This man gave evidence before the learned Magistrate as an approver; (3) Himanshu Kumar Dutta. He pleaded guilty and was convicted; (4) Ganendra Nath Das. This man was convicted on all the counts on which he was charged, and he is one of the appellants before us; (5) Niranjan Bhattacharjee. He was acquitted by the learned Magistrate; (6) Bishnupada Chatterjee alias Makra. This man was convicted by the Magistrate and is now one of the appellants before us; (7) Benoy Bhusan Ghosh. He pleaded guilty and was convicted; (8) Ashutosh Guha. He also pleaded guilty and was convicted; (9) Paresh Nath Kalwar. He was convicted by the Magistrate and has now appealed and (10) Biswanath Lala alias Bombaiya. He also was convicted and has appealed. The complaint included two other persons, namely, Biren Mukherjee and Abinash alias Bilash Biswas, but they were absconding when the case was tried by the learned Magistrate, and have not yet been brought to trial.

3. As already stated, the case against the appellants and their co-accused was that between June 1940 and May 1941, they were parties to a criminal conspiracy to induce various Calcutta firms to part with their property or money, and that, in pursuance of that conspiracy, they committed certain overt acts. It is said that in the following cases Calcutta firms were either cheated by the appellants and their associates, or attempts were made to cheat them: (1) Messrs. Jessop and Company's case. In this case, it is alleged that the conspirators obtained delivery on 2nd July 1940, of forty pieces of Penang Block tin valued at Rs. 9839-6-0 by producing a letter which purported to have been signed by a Government officer on 26th June 1910. (2) On 8th October 1940, they attempted to obtain delivery of five thousand cigarettes worth about Rs. 100 from the Tobacco Box Company whose premises are situated at 5, Chowringhee, Calcutta. (3) On 19th October 1940, they obtained delivery of ten tyres and ten tubes valued at Rs. 1021-10-0 from the India Tyre and Rubber Company, Ltd. of 1, Waterloo Street, Calcutta, by placing with the Company a bogus order which purported to have been signed by the Sub-divisional Officer of Basirhat. (4) On 25th October 1940, it is said that they obtained delivery of sixteen barrels of lubricating oil valued at about Rs. 2000 from Messrs. C.C. Wakefield Company of 7 Royal Exchange Place, Calcutta, by placing with that firm bogus orders said to have been issued by the Sub-divisional Officer, P.W.D., Road and Dredger Section, Port Canning. (5) On 29th October 1940, it is said that they defraruded the Vidyasagar Cotton Mills, Ltd. in respect of six bales containing one thousand pairs of dhutis valued at Rs. 1500 on a bogus order which purported to have been signed by the Sub-divisional Officer, Contai, in the Midnapore District. (6) On 20th November 1940, it is said that they obtained delivery of a consignment of mobil oil from the Standard Vacuum Oil Co., on a bogus order which purported to have been placed with them by the Sub-divisional Officer, P.W.D., Bhangor, 24-Parganas. (7) On 25th November 1940, it is said that they obtained delivery of lubricating oil valued at Rs. 2386-2-0 from Messrs. Ewing and Company on a similar bogus order. (8) On 6th December 1940, they also defrauded Messrs. Cutler Palmer and Company in respect of four cases of whisky valued at Rs. 456. (9) On 2nd January 1941, it is alleged that they obtained in cash the sum of Rs. 2500 from the Eastern National Bank Ltd., by producing some bills alleged to have been passed for payment by the Additional District Magistrate of Midnapore. (10) On 26th March 1941, they attempted to obtain delivery of a consignment of Block Tin from Messrs. Francis Klien and Company by producing a bogus letter purported to have been issued by the Sub-divisional Officer, P.W.D., Road and Dredger Section, Goshaba, 24-Parganas. (11) It was further alleged that between 21st April 1941, and 5th May 1941, they obtained delivery of a consignment of antifriction metal and solder valued at Rs. 4500 from Messrs. Heatly and Gresham by producing some bogus letters and store orders which purported to have been issued by the Sub-divisional Officer, P.W.D., Road and Dredger Section, Goshaba, Camp Sonarpore, 24-Parganas. (12) Finally, on 10th May 1941, it is said that they attempted to obtain a further consignment of antifriction metal and solder from Messrs. Heatly and Gresham by producing some bogus letters and store orders which purported to have been issued by the Sub-divisional Officer, P.W.D., Road and Dredger Section, Goshaba, Camp Sonarpore, 24-Parganas.

4. According to the case for the prosecution, the gang of conspirators with which we are concerned was organised by Satishwar Bose who, as already stated, was formerly employed as an Inspector of Police. The modus operandi which they adopted in most of the above mentioned cases was very similar. They obtained certain Government Letter Forms and Store Order Forms, and one of their number was sent to the firms concerned in order to obtain quotations for certain classes of goods which were known to be supplied by the firms in question. The person who was sent to obtain these quotations either took with him a letter which purported to have been written by some Government officer, or without any such letter, he merely obtained a quotation from the firm. With this quotation, he went back to Satishwar, and thereafter, an order was written out on a Government form and delivered by one of the conspirators to the firm whom it was intended to defraud. On this order, the goods were supplied and sent by the firm to a particular place mentioned either in the bogus letter or verbally by the emissary of the gang. When the goods had been deposited at the place mentioned, they were taken away by the conspirators and sold by them through the agency of certain receivers. In the case of metal goods, the receiver who was employed for the purpose of selling the goods was Paresh Nath Kalwar according to the case for the prosecution, whereas, in the case of lubricating oil, another person named Labh Singh was employed. In due course, the firm sent their bills to the officers from whom they supposed they had received the orders, but these bills were dishonoured. This led to the filing of various complaints and the institution of the cases out of which these appeals arise.

5. In the case of the Eastern National Bank, the modus operandi was slightly different, as in that particular case an emissary representing the conspirators was sent to the bank to enquire as to whether the bank authorities would be able to advance certain sums of money against bills which had been passed for payment by the Additional District Magistrate of Midnapore. He introduced to them one of his associates who posed as a rice merchant who had supplied rice to the District authorities at Midnapore, in connexion with famine relief. The bank advanced the sum of Rs. 2500 on bills of the face value of Rs. 4000, but subsequent correspondence with the District authorities in Midnapore showed that the bills and the correspondence connected therewith were bogus. The case for the appellants was a general plea of not guilty.

6. The most important evidence which was given before the learned Magistrate was the testimony of Anilesh Chandra Ghosh P.W. 1, who became an approver and gave evidence as such. This man seems to have become acquainted with Satiswar Babu and his associates through Niranjan Bhuttacharjee. It seems that the latter was the part proprietor of a certain hotel called the Pice Hotel at Tollygunje--his co-proprietor being Satiswar Babu. Anilesh was told to submit the hotel accounts to Satiswar Bose (hereinafter called Satis Babu) at his residence at No. 93A, Sitaram Ghose Street. He did so and in this way, he became acquainted not only with Satis Babu, but also with some other associates of his including Biren Mukherjee, Abinash Biswas and Ganendra Nath Das. Shortly afterwards, Ashutosh Guha came to live with Anilesh and it appears that both he and Ashutosh joined the gang about September 1940. It may be noted that their formal recruitment in the ranks of the conspirators took place after the fraud which was perpetrated on Messrs. Jessop and Company in July 1940, but according to the testimony of the approver, Anilesh heard full details about this case from Satis Babu, and Benoy Bhusan Ghose who at that time were full associates of the conspirators. The evidence on this point appears to have been admissible under Section 10, Evidence Act. With regard to most of the acts which were detailed in his evidence, the approver seems to have had personal knowledge, arid he himself took a prominent part in connexion with some of these cases. He gives a description as to the manner in which the correspondence was conducted with the victimised firms and the way in which the goods were obtained. He also states how these goods were sent to receivers after the frauds had been committed in order that they might be sold on behalf of and for the benefit of all the conspirators. He took an active part in these frauds until May 1941, when he was arrested.

7. I may say at once that the testimony which was given by Anilesh Chandra Ghose before the learned Magistrate appears to us to be substantially true. It was given in a detailed and convincing fashion. The accuracy of his general account of the facts connected with the conspiracy and the frauds perpetrated by the conspirators has not been shaken by cross-examination, and his story has been corroborated by numerous independent witnesses from the firms who were victimised. Further, as regards the appellants now before us, we think, as will be seen hereafter, that the testimony of the approver has been corroborated in material particulars sufficiently to convince us that the approver has, by no means, exaggerated the parts in the conspiracy which he assigns to them.

8. The cases of Bishnupada Chatter jee, Ganendra Nath Das and Biswanath Lala will be discussed at a later stage in this judgment. It will be seen that they present no particular difficulty as these people were clearly identified by one or more officers connected with the victimised firms as having taken part in the fraudulent transactions in which these firms were cheated.

9. Appeal No. 375. -- The case of Paresh Nath Kalwar is slightly more complicated. He was one of the principal receivers of the gang, and, therefore, did not come into direct contact with the representatives of the defrauded firms. It was, therefore, not to be expected that in the case of this appellant, the prosecution would be in a position to adduce as great a volume of corroborative evidence as they were able to give in the cases of other appellants. As regards Paresh, the question of his guilt or innocence must rest mainly on the value which we attribute to the testimony of Anilesh Chandra Ghosh. We may also take into consideration against him a statement which was made by Benoy Bhusan Ghose, one of the co-accused, under section 342, Criminal P.C., but in respect of this particular statement, although we take it into consideration under Section 30, Evidence Act, we do so subject to the safeguard indicated by Section 114 (b) of that Act. Admittedly, as regards corroborative evidence, the only circumstance which the prosecution had been able to prove is an endorsement in the handwriting of Paresh, on the back of a receipt given to Tularam and Company in connexion with the Vidyasagar Mill's case. At this stage, it will be convenient to summarise the evidence against Paresh Nath Kalwar which appears on the record. The approver, Anilesh Chandra Ghosh, states that he knew Paresh Kalwar, and saw him in Satis Babu's house, and also at his shop at Murcus Square. In speaking of the general modus operandi in connexion with the alleged frauds, this witness says,

Benoy Babu used to be in charge of the disposal of the goods along with Satis Babu and the other accused persons including myself used to be in the know. Accused Paresh Kalwar (identifies him) used to purchase goods from us. Satis Babu used to take the purchase money and in one case I took the purchase money. Paresh Kalwar used to come to Satis Babu's house often and offered to purchase the goods at price lower than the market rate.... The purpose of the conspiracy was to cheat firms and to take delivery of goods without paying for them and to dispose of the goods there delivered quickly at a low rate.

10. He then goes on to mention twelve eases in which certain firms in Calcutta were defrauded or attempts were made to defraud them. These eases included Jessop and Company's case, the Vidyasagar Cotton Mill's case and Heatly and Gresham's case in which Paresh appears to have acted as a receiver. In speaking of Jessop and Company's case, the approver states that the goods were sold to Paresh Kalwar for Rs. 5000. In connexion with the Vidyasagar Mill's ease, in which this company was defrauded in respect of a thousand pairs of duties, the witness says that

the goods were kept at the quarter of Dr. Sachindra for about two days. Two days after, Satish Babu asked the assistance of Paresh Kalwar to dispose of the goods, and the goods were sold to Nityananda Tularam of Sutapati for Rs. 700 on a receipt of Rs. 1500 given by Satis Babu.

11. He then refers to Ex. 20 which he says was the sale receipt in favour of Nityananda Tularam written by Satis Babu and signed by him as Manilal Chakravorty. It is on the back of this document that an endorsement appears in Nagri, the English translation of which is as follows:

Satish Chandra Ghose.

Received the amount of the bill in full,

through Paresh Nath Sha.

Dated 1-11-40.

12. The approver does not actually refer to this endorsement, but, as will be seen later, there is the testimony of the handwriting expert on the record to prove that this endorsement is in the handwriting of Paresh Nath Kalwar. The approver goes on to state with reference to the Vidyasagar Cotton Mills case:

Paresh Kalwar helped Satis Babu in the disposal of the goods. Rupees 700 was got as the sale proceeds of which I got Rs. 100 as my share and Asu Rs. 100, Benoy Rs. 50, Abinash Rs. 25, Dr. Sachin Rs. 150. The rest were divided between Satis Babu, Niranjan Babu, Bishtu Babu and Biren Babu.

13. The next item in the approver's evidence which implicates Paresh Nath Kalwar is with reference to the Heatly and Gresham case in which that firm between 21st April 1941, and 5th May 1941, was defrauded in respect of a consignment of antifriction metal and solder valued at about Rs. 4500. In this connexion, the witness says:

The prospective buyer was Paresh Kalwar. Satis Babu consulting with him got the particulars of the metal to be purchased which would fetch a larger amount for comparatively small quantities and the company wherefrom it may be had and the purpose for which it may be used.

After the goods had been obtained, Anilesh says:

We sent for Satiswar Babu; he came with a man who Satis Babu told us was Paresh Kalwar's servant and the goods worth Rs. 4522 were made over to me. It was about 6 p.m. An hour or so after, I and Satiswar Babu went to Paresh Kalwar's house. We met him and Paresh Kalwar paid him Rs. 100 with the promise to pay the balance subsequently. Next morning Paresh came to Satis Babu's house and paid him Rs. 950 in cash.... Paresh Kalwar was a member of our gang and knew that the goods were stolen goods.

14. In connexion with the last case in which an attempt was made to defraud Messrs. Heatly and Gresham in respect of a further consignment of metal, the witness refers to Ex. 65 which is a letter from Messrs. Heatly and Gresham, dated 1st May 1941, in which they stated that they were unable to spare any block tin, but would be able to forward any solder or white metal that might be required. On the back of this letter, Anilesh made certain calculations as regards the quantities of the various metals which the conspirators proposed to order. These quantities, according to his evidence, must be read in conjunction with the rates quoted in a previous letter, dated 22nd April 1941, and it appears that at this time, the intention was to order:

Approx. quantity. Rate.85% Tin 6 cwts. Rs. 250 per cwt.65% Tin 8 cwts. Rs. 210 per cwt.50% Tin 16 cwts. Rs. 129 per cwt.40% Tin 16 cwts. Rs. 110 per cwt.

15. The corresponding prices for each item being Rs. 1500, Rs. 1680, Rs. 2064 and Rs. 1760; total Rs. 7004. These quantities were duly ordered from the company, and, on 7th May 1941, by a letter, Ex. 75, Messrs. Heatly and Gresham informed the Sub-divisional Officer who was supposed to have sent the order that

We are arranging to have this metal ready for collection at 11 o'clock on Saturday morning, the 10th May. This metal will be available at our Head Office in 6 Waterloo Street, and your Stores Babu can make his arrangements for its disposal.

16. In connexion with this last letter, the approver gives the following significant piece of evidence:

The calculations on the reverse of Ex. 74,-- Ex. 74/1,--show the prices offered by Paresh Kalwar for the whole quantity coming to Rs. 2256.

17. These calculations are as follows:

85% 250 6 x 72 = Rs. 43265% 210 8 x 70 = Rs. 56050% 129 16 x 40 = Rs. 64040% 110 16 x 39 = Rs. 890 Rs. 234 2256.

18. The first three columns of these figures appear to be in the same handwriting as the calculations on the back of the letter of Messrs. Heatly and Gresham, dated 1st May 1941, i.e., in the handwriting of Anilesh Chandra Ghosh. The last two columns, however, relate to the rates said to have been offered by Paresh Kalwar and are in a different ink and in a different handwriting. We think that it is somewhat unfortunate that the figures in these two columns were not sent to the handwriting expert to be tested in comparison with the handwriting of Paresh Kalwar; as it is possible that, if this had been done, it might Shave been found that these figures bore some resemblance to the handwriting of this particular appellant. As this evidence stands, although it cannot be taken to afford any direct corroboration of the approver's evidence with regard to the complicity of Paresh Kalwar in respect of the Heatly and Gresham case, the presence of these figures on the back of these two letters certainly furnishes a remarkable degree of confirmation as to the truth of the approver's testimony with regard to the main features of the fraud perpetrated in connexion with that case. Further, if the approver is to be believed, there can be no doubt that Paresh Kalwar was an active participant in the conspiracy in connexion with the Heatly and Gresham case and that he made arrangements to buy the consignment of metals to be obtained from this firm before that consignment had actually been received and in full knowledge of the plans of the conspirators with reference thereto. I have already referred to the statement of Benoy Bhusan Ghose, which we propose to take into consideration for what it is worth under the provisions of Section 30, Evidence Act. With reference to Paresh Kalwar, Benoy made the following statement:

Some days in the middle of June, 1940, Satish Babu asked me if I could secure a purchaser of two tons of block-tin. On my way to Satish Babu's house, I had often passed the shop of Paresh Kalwar in Bala Dutta Lane. I enquired of Paresh if he could purchase the goods. He agreed and I took Satish Babu to his shop to settle the matter. Then in the morning of 3rd July 1940, Satish Babu asked me to inform Paresh to keep the money ready as he (Satish Babu) had expected to receive the goods at moon. I was also asked to wait for him and the goods at the shop of Paresh. Accordingly I went to Paresh's shop at 12 o'clock and remained there till 2-45 P. M. when Satish Babu and the accused Bishtu Pada Chatterjee alias Makra came to the shop with two pieces of block-tin in a taxi. As arranged, Paresh sent a lorry with Bishtupada. The remaining goods were brought to Paresh's shop at about 4 P.M. Paresh paid Rs. 1000 and promised to pay the balance on the next day.

This part of the statement obviously refers to the case of Jessop and Company. In connexion with Vidayasagar Mills case, Benoy's statement is as follows:

Next morning I went to Paresh and asked him if he could arrange anything for us. He said it was not his line but if he were supplied with the samples of the dhuty he could try. I communicated it to Satish Babu. He got a pair of dhuties bought from the East Bengal Society and sent to Paresh. Then in the evening of the Kali Puja Paresh had informed me that he could sell the entire goods at Rs. 700 only excluding his commission. Satish Babu agreed. Next morning at 10-30 A.M. Abinash took away the goods from Sachin Babu's shop in a lorry sent by Paresh. That evening Paresh paid Rs. 100 to Satish Babu and got a receipt of the whole lot. The receipt exhibited in the Court was written by Satish Babu in my presence.

19. I have already stated that we have come to the conclusion after a very careful consideration that the testimony of the approver is substantially true. In this connexion, it is argued by Mr. Carden Noad that, even if this testimony is believed, it merely proves that at the most, Paresh was acting as a receiver of goods which he may have believed to be stolen, but it does not show that he was a full associate of the other accused persons in the sense that he knew that he was helping them to defraud any of the firms mentioned in the charge, and, according to this argument, even if the approver's testimony is taken at its face value, it is insufficient to justify the conviction of Paresh in the case with which we are now dealing. Speaking for myself, I would have been prepared to hold that, if the evidence of the approver is substantially true, as we think it is, it may be taken to show that, at any rate, from the time of the Jessop and Company's case, Paresh was fully associated with the aims and objects of his fellow conspirators. However, whether this was the case or not, it is not necessary for us to decide, because we are prepared to assume for the purposes of this appeal that, even at the time of the Vidaysagar Mill's case, Paresh may have received the dhuties for disposal merely in the belief that they had been obtained by dishonest means without knowing that any particular firm had been defrauded in respect thereof. We hold, however, that there is no doubt, according to the evidence of Anilesh, that Paresh Nath Kalwar was completely involved in the conspiracy in connexion with the Heatly and Gresham case.

20. Mr. Carden Noad, however, argues that we cannot accept the testimony of the approver unless we find that it has been corroborated in some material particular as regards the crime charged, and he further contends that the handwriting on the back of the receipt, Ex. 20, is insufficient for this purpose. In this connexion, it may be noted that we have examined this handwriting with great care, and compared it with the photographic enlargements which were prepared by the handwriting expert. After having done this, we have no hesitation in coming to the conclusion that this endorsement was written by the appellant, Paresh Nath Kalwar. It remains, therefore, to be considered whether this item of evidence affords corroboration to the testimony of the approver in a material particular which we might regard as confirming our belief in the substantial truth of the approver's testimony. In support of his argument, Mr. Carden Noad has referred us to the case in Morris v. Goldstein (1915) 11 Cri, App. Rep. 27 Morris v. Goldstein (1915) 11 Cri, App. Rep. 27. In that ease, which was decided in 1914, a person had been convicted of attempting to procure a girl to become a common prostitute. By statute, an offence of this nature requires corroboration and it appears from the report that no such corroboration was forthcoming, but evidence had been adduced to show that the appellant had committed rape on the girl. The report says that

there was a charge of rape made against the appellant by the prosecutrix, of which the Commissioner told the jury there was no evidence against the appellant.

In his judgment, the Lord Chief Justice says:

It is admitted that there was no corroboration of any material particular implicating the accused but there were other matters on which the girl gave evidence on which there was corroboration. One of these matters amounted to the commission of a crime by the appellant if the jury accepted her evidence, but not of the crime with which he was charged; it is suggested that that was sufficient corroboration to satisfy the statute. The proposition has only to be stated to be refuted. It is clear that it is intended that the corroborative evidence should implicate the accused in respect of the offence charged; when that fails it is wholly immaterial that there is corroboration of other portions of her evidence.

This case does not appear to be of any material assistance to Mr. Carden Noad, because it appears that, having regard to the particular circumstances of that case, any evidence with regard to the alleged rape should not have been admitted or considered at all with reference to the charge of procuration. The two matters were entirely separate. In the case with which we are now dealing, the main crime charged is conspiracy to defraud certain companies, with three subsidiary charges relating to particular instances in which some of these firms had been cheated. In these circumstances, it seems to be clear that any evidence which might show or tend to show that during the course of the alleged conspiracy, the appellant had acted as a receiver for the conspirators, would not only be relevant to the issue, but would also be highly material. In a case of this nature, even if we assume for the moment that it would be illegal to base a conviction on the uncorroborated testimony of the approver alone, the fact remains that, if we believe that the approver's evidence is substantially true, all that is necessary to demonstrate is that the approver's testimony has been corroborated in some material particular which tends to show that he was connected with the main crime which has been charged. The corroboration need not consist of evidence which standing alone would be sufficient to justify the conviction of the accused. If this were the law, it would be unnecessary to examine an approver at all. All that seems to be required is that the corroboration should be sufficient to afford some sort of independent evidence to show that the approver is speaking the truth with regard to the accused person whom he seeks to implicate.

21. The general principles relating to corroboration of an approver's evidence have been laid down in Rex v. Baskerville (1916) 2 K.B. 658. It is interesting to find that the principles followed in that case were accepted by the Judicial Committee of the Privy Council as the settled law on the subject in the case of an appeal from the Supreme Court of Fiji in Mahadeo v. Emperor ('36) 23 A.I.R. 1936 P.C. 242. In Rex v. Baskerville (1916) 2 K.B. 658 Lord Reading C.J. reviewed and restated the law applicable to corroboration of the evidence of accomplices, owing to certain differences of opinion which appeared to have arisen in previous judgments in England. In reviewing the leading cases on the subject, his Lordship stated at p. 665:

The rule of practice as to corroborative evidence has arisen in consequence of the danger of convicting a person upon the unconfirmed testimony of one who is admittedly a criminal. What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it.

In the course of his judgment, his Lordship quoted with approval the case in Reg. v. Dyke (1837) 8 Car. & P.261 in which Gurney J. said:

Although, in some instances, it has been so held, you will find that in the majority of recent cases it is laid down that the confirmation should be as to some matter which goes to connect the prisoner with the transaction.

The learned Chief Justice then referred to the well-known case in Reg. v. David Birkett (1837) 8 Car. & P. 732, in which the prisoner was indicted for receiving stolen sheep. The evidence consisted of the statement of an accomplice, and to confirm it was proved that a quantity of mutton corresponding in size with the sheep stolen was found in the prisoner's house. His Lordship then went on to say at page 667:

We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.... The nature of corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in high degree da ngerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused.

The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connexion with the crime. A good instance of this indirect evidence is to be found in (1837) 8 Car. & P. 732. Were the law otherwise many crimes which are usually committed between accomplices in secret, such as incest offences with females, or the present case, could never be brought to justice.

22. As already pointed out, the main transaction or the crime with which we are concerned in the present case is a conspiracy to defraud certain Calcutta firms. Having regard to the principles laid down in (1916) 2 K.B. 658, can we say that the handwriting of the appellant Paresh Kalwar, which appears on the back of Ex. 20, tends to show his connexion with the alleged conspiracy in such a way as to implicate him in the crime with which he has been charged? Taking as we do the view most favourable to Paresh Kalwar in connexion with this case, there is no doubt that his signature on the back of the receipt indicated that in October 1940, he was acting as an agent for Satis Bose in disposing of certain goods to a Marwari firm which, having regard to the price at which he sold them and to the circumstances of the case generally he must have known to have been obtained by dishonest means. This evidence further shows that in October 1940, Paresh Kalwar was acting as a receiver for Satis Bose. It cannot be denied that, in a conspiracy case such as this, the fact that Paresh Kalwar was acting as a receiver on behalf of Satis Bose in connexion with the Vidyasagar Mills case tends to connect him with the conspiracy, and this fact renders it extremely probable that in April and May 1941, the members of the gang would have turned to him for advice and help in connexion with the case in which Messrs. Heatly and Gresham were the victims. It also lends considerable support to the evidence of the approver with regard to the actual part which Paresh Kalwar took in connexion with the fraud perpetrated on Messrs. Heatly and Gresham Company and with the later fraud which was attempted but not accomplished. It is also relevant to mention that the approver, Anilesh, was not cross-examined with regard to the statement made in his evidence to the effect that Paresh had actually-made certain offers for the metals to be obtained from Messrs. Heatly and Gresham in May 1941, and that the offer made by Paresh was embodied in the figures endorsed on the back of Ex. 74. We, therefore, find that the approver, Anilesh Chandra Ghosh, has been sufficiently corroborated in respect of the Heatly and Gresham cases, i.e., as regards the last stage of the conspiracy with which he has been charged. We have no hesitation in holding that certainly by April 1941, Paresh Nath Kalwar had become a full associate in the conspiracy and that he actually took part in the fraud perpetrated on Messrs. Heatly and Gresham, and in the other fraud which was attempted but which failed owing to the arrest of some of the principal conspirators.

23. The evidence being such as it is even if it could be held that the handwriting on the back of Ex. 20 furnishes no direct corroboration of the approver's testimony as regards Paresh Nath Kalwar's complicity in the Heatly and Gresham cases, we would nevertheless be prepared to convict the appellant as regards this particular charge having regard to the provision contained in Section 133, Evidence Act. While sitting in appeal in this case, we have to deal with the facts more or less in the same manner as a jury may have to deal with them after being properly cautioned by the Judge on the principles to be observed in respect of the corroboration of accomplice evidence. Adopting this standard, we have no doubt that had We been on a jury trying this case, and the principles outlined in (1916) 2 K.B. 658 had been properly explained to us, we would have found the appellant, Paresh Nath Kalwar, guilty of conspiracy and also in respect of the fraud so relating to the Heatly and Gresham eases.

24. It follows that, as regards this particular appellant, we find him guilty of conspiracy under Section 120B/420, Penal Code, and we uphold the sentence of two years rigorous imprisonment which has been passed by the learned Magistrate on this count. We give him the benefit of the doubt with regard to the second charge under Section 420, Penal Code, in respect of the Vidyasagar Cotton Mills case. We find him guilty under Section 420 of the Code, in respect of the last charge as regards the Heatly and Gresham case. In the latter case, he has been sentenced to undergo rigorous imprisonment for six months, and we affirm this sentence. The substantive sentences of imprisonment will run concurrently. We also maintain the sentence of fine imposed under the first charge, and also the sentence of rigorous imprisonment in default in the payment of fine. He must surrender to his bail and serve out the remainder of the sentences of rigorous imprisonment imposed upon him. This appeal is dismissed. [The judgments delivered in other appeals are not material for this report.]

Roxburgh, J.

25. I agree.


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