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J.M. Cohen Vs. the King - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in1950CriLJ129
AppellantJ.M. Cohen
RespondentThe King
Cases ReferredMahadeo v. The King
Excerpt:
- .....further period of six months' rigorous imprisonment.2. cohen was a direotor of a bank known as the lall bank and it is said that he was in charge 'of the finance side of the bank. the managing director of the bank wag a mr. k. lall, who was also the proprietor of a firm known as k. lall and co., managing agents of the calcutta marine engineering company. cohen and lall ware charged along with chitta-ranjan bose, an accountant of the1 calcutta marine and engineering companyi and s. k. datta, secretary of k. lall and co., and were tried together. chittaranjan bose and s. k. datta were acquitted, but lall was convicted upon the charge of conspiracy and was sentenced to one year's rigorous imprisonment and a fine of esection 1000 whereas cohen received the lesser sentence of six months'.....
Judgment:

Harries, C.J.

1. This is an appeal by one J. N. Cohen, who was convicted by an Additional Preaidenoy Magistrate of an offence Under Section 120B, Penal Code, read with Section 7 (1) of Ordinance III [3] of 1046. He was sentenced to six months' rigorous imprisonment and to pay a fine of KB. 1000; in default of payment of the fine he was ordered to undergo a further period of six months' rigorous imprisonment.

2. Cohen was a Direotor of a Bank known as the Lall Bank and it is said that he was in charge 'of the finance side of the Bank. The Managing Director of the Bank wag a Mr. K. Lall, who was also the proprietor of a firm known as K. Lall and Co., managing agents of the Calcutta Marine Engineering Company. Cohen and Lall ware charged along with Chitta-ranjan Bose, an Accountant of the1 Calcutta Marine and Engineering Companyi and S. K. Datta, Secretary of K. Lall and Co., and were tried together. Chittaranjan Bose and S. K. Datta were acquitted, but Lall was convicted upon the charge of conspiracy and was sentenced to one year's rigorous imprisonment and a fine of ESection 1000 whereas Cohen received the lesser sentence of six months' rigorous imprisonment and a fine of Ka. 1000. We are informed that since this conviction Lall has died.

3. The charge eventually framed against these four persons was that they along with other persons had entered into a criminal conspiracy between lath January and 1st April 1946, to commit an offence punishable with rigorous imprisonment for two years or upwards, to wit, an offence Under Section 7 (1) of Ordinance III [8] of 1946, either by receiving into their possession from persons unknown high denomination notes in contravention of Section 4 of that Ordinance or by instigating the making of false statements by different persons who were induced to make declarations Under Section 6 of the said Ordinance and in pursuance of which conspiracy the Baid accused persons received into their possession a large number of high denomination notes, which were set out in the charge, and had thereby committed an offence punishable Under Section 120B, Penal Code read with Section 7 (1) of Ordinance III [3] of 1946. Ordinance in [3] of 1946 was an Ordinance passed to deal with high denomination bank notes, meaning bank notes of a denominational value of Rs. 500, RSection 1000 or ESection 10,000. Section 3 of this Ordinance provided that after 12th January 1946, all high denomination bank notes should, notwithstanding anything contained in the Beserve Bank of India Act, 1934, cease to be legal tender in payment or on account at any place in British India.

4. Section 4 of the Ordinance provided that, save as provided by the Ordinance itself, no person could after 12th January 1946, transfer to the possession of another person or receive into his possession from another person any high denomination bank note.

5. Section 5 of the Ordinance dealt with the exchange of high denomination notes held by banks and Government treasuries. Sub-section (1) of that section provided that a bank, other than a soheduled bank, could obtain from the Reserve Bank or a scheduled bank an equivalent amount in bank notes, of the denominational value of one hundred rupees in exchange for the high denomination bank notes declared by it in the returns under the Bank Notes (Declaration of Holdings) Ordinance, 1946, and tendered for such exchange, or if it so desired, a credit of that amount with the Beserve Bank or a scheduled bank.

6. Sub-section (2) provided that a scheduled bank or a Government treasury could obtain from the Reserve Bank an equivalent amount in bank notes of the denominational value of one hundred rupees in exchange for any high denomination bank notes tendered for such exchange which has been declared by it in the returns under the aforesaid Ordinance or which had been received by it in exchange under this Ordinance, or if a scheduled bank so desired a credit of that amount with the Reserve Bank. [7] Section 6 of the Ordinance deals with the exchange of high denomination bank notes held by other persona. Sub-section (1) provides:.any high denomination bank note held by s person other than a bank or Government treasury shall after the 12th day of January 1946 be exohanged only on tender of the note for exchange by the owner thereof in the manner provided in this section.

Sub-section (2) then goes on to provide :

Every such owner of a high denomination bank; note desiring to tender it for exchange Bhall prepare in the form et out in the schedule or in a form as near thereto as may be, three copies of a declaration signed by him giving in full the particulars required by that form, and shall, within ten days after the commencement of this Ordinance, deliver such copies is person together with the high denomination bank notes he deaires to exohange to a branch of the Keserve Bank or to a scheduled bank or to a Government treasury.

Sub-section (8) provides:

Every declaration under this section shall, for the purpose of identifying the person making it, be attested either by his banker or by a salaried Magistrate or & Justice of the Peane or a polios officer not below the rank of Inspector of Police.

8. The next important sub section is Sub-section (6) which is in these terms:

The person who signs any declaration under this section shall be deemed for all purposes to be the owner of the high denomination bank notes to which it relates, and if it is proved that he is not in fact the owner of such bank notes, he and the owner thereof,, unless in the ease of the latter he can prove that the declaration was made without his knowledge, shall be deemed to have contravened the provisions of Section 4.

9. It will be Been that this Ordinance made it extremely difficult for holders of high denomination notes to cash them for notes of a lower denomination. Forma had to be filled up and these forms, particularly pareSection 15 and 16 of the Schedule, required the holder of such notes to etch out how he acquired them and why he was retaining the money in that form.

10. It seema clear from the evidence in this case that the Lall Bank held a large number of these high denomination notice. How they acquired these notes is not clear, but they undoubtedly had them between the two dates mentioned in the charge. The case for the prosecution was that in order to cash those cotes at the Besorve Bank the four accused persona with others obtained declarations from a number of persona, These persons purported to make declarations with regard to the note3, which, as I have said, were in possession of the Lall Bank. The forma were filled in as if the persona signing those forms owned the note and desired to cash them themselves. The evidence for the prosecution was that none of the persona who signed these forms ever owned such note, and indeed it was suggested in most cases, could never have owned such notes. What was contended was that the four persona conspired together to devise a way of cashing these note which the bank held. They obtained declarations from these persons and with those declarations the notes were presented to the Reserve Bank and were cashed.

11. It was suggested by the prosecution that the object of the conspiracy was two-fold. First, to transfer to the possession of another person or receive into his possession from another person high denomination note which was an offence Under Section 4 of the Ordinance. As I have said, there is no evidence as to how the Lall Bank acquired these notes. They did not acquire them from the persona who made the declarations, and, as I have said, they might have acquired them by illicit trade or in any other manner, Secondly, the other offence was that they obtained declarations required by Section 6 from persons who were admittedly not the owners of the notes, and they need those declarations in order to cash these notes.

12. The main witness in the case was Raj Mohan Karanjai, P.W. 1 who appears to have been a responsible official in the bank. He states that a number of people were procured who signed declarations respecting various note3 held by the bank. He makes it clear that in the preparation of these declarations Lall and Cohen, the present appellant, were actively concerned, and he also makes it clear that the declarants owned no high denomination notes at all. They were asked to sign declarations in respect of notes held by the bank itself.

13. There can be no question that if the evidence of Raj Mohan Karanjai could be accepted, the prosecution would have established their case. Raj Mohan Karanjai was, on his own showing, a scoundrel. He had been committed for a train edacity and sentenced to eight years' rigorous imprisonment. He was apparently await, ing trial at this time on another charge. Further, from hia evidence it is quite clear that he knew what was being clone and that he actively assisted in obtaining these declarations from various persona who made them knowing that they were false and knowing that they were made with intent to defeat this Ordinance and to obtain smaller note for these high denomination notes.

14. In other words, Raj Mohan Karanjai, P.W. 1 was a very active accomplice. He tries to make out that he was not, but even a cursory glance at his evidence would aatiafy anyone that he was one of the prime movers in this case. His evidence therefore could never be accepted standing by itself. The illustration to 8. 114, Evidence Act, is to the effect that a Court may presume that an accomplice is not worthy of credence though s, 133, Evidence Act, provides that a conviction based on his evidence is not illegal for that reason,

15. However, it has been a rule of Theo Courts for very many years not to base a conviction upon the evidence of an accomplice and that evidence alone. This Court as well as all other High Courts in India have required corroboration of such evidence.

16. The corroboration of Raj Mohan Karan-jai's evidence is very necessary in this cage, because as I have said Raj Mohan Karanjai was, on his own showing, as guilty as any other member of the Lall Bank and what he was trying to do in the witness box was to exculpate himself and to throw the blame on the appellant and his co-accused. His evidence is therefore suspect in the extreme and I would not be prepared to act upon it without corroboration. Further, to make matters worse, Raj Mohan Karanjai wag, as I have said, a bad character and his evidence would have to be approached cautiously even if he was not an accomplice.

17. The other evidence in this ease consisted of the evidence of a large number of persons who had signed these declarations. All of them admitted that the high denomination notes to which these declarations referred did not belong to them and that they had never anything to do with them. Most of these persona wore employees of the Lall Bank or of the concerns of Mr. Lall to which I have already made reference. There were also a number of persona who were not interested in the bank or in these concerns, but were indirectly interested in the activities of Mr. Lall and the Lall Bank,

18. Learned advocate for the Crown had to concede that a number of the witnesses were clearly accomplices e. g., witnesses like Jatindra Nath Banerjee, P.W. 2 and Nagendra Nath Sarkar, P.W. 3. He however urged that four persons who gave evidence could be regarded as independent and could not be regarded as accomplices. He contended that even assuming that the evidence of an accomplice could not be corroborated by the evidence of another accomplice, nevertheless the evidence of these accomplices was abundantly corroborated by the evidence of these four independent persons. These four per. sons were Abdul Rezzak, P.W. 12 Sk. Nurul Huq, P.W. 13, Sk. Jalil, P.W. 14, and Sk. Kaloo, P.W. 16. All these four persons signed declarations respecting various high denomination notes. All of them admitted that they never owned such notes, but what they tried to make out in Court was that they bad been deceived or tricked into signing these declarations and that they were wholly unaware that any offence was in contemplation. [After considering their evidence, his Lordship held that these witnesses knew that they were signing the declarations respecting various high denomination notes. His Lordship then continued :]

19. For the reasons that I have given I am satisfied that all these four so-called independent witnesses were accomplices. Learned advocate for the Crown does not urge that the others who signed these declarations were independent. He has to concede that in all probability they were accomplices. The result is that all the persons who made these false declarations and were called as witnesses to support the case for the prosecution were concerned in the crime. They all knew that what they were doing was wrong and they were clearly, in my view, accomplices.

20. The other witnesses called ware merely formal witnesses and could give no direct evidence as to these transactions. Learned advocate for the appellant has urged that in these circumstances the conviction should cot stand. He has urged that quite clearly the evidence of Raj Mohan Karanjai, P.W. 1, required corroboration and that that evidence is not corroborated by any ether independent testimony. Learned advocate contended that the evidence of an accomplice cannot corroborate the evidence of another accomplice. Learned advocate for the Crown pointed out that a somewhat different view had been taken by this Court in the case of Bimal Krishna Biswas v. Emperor 89 C. W. N. 761. At p. 769 Henderson J. observed:

The rule of law la contained in Section 114, Evidence Act, which lays down that the Court may presume that an accomplice is unworthy of credit unless be is corroborated in material particulars. To say that an accomplice is to be corroborated in material particulars is not the same thing as to say that he is to be corroborated by a witness who is not an accomplice. No doubt it is a rule of prudence to say that ordinarily evidence which is itself tainted should not be accepted as corroboration of tainted evidence. But in my judgment, it is opposed to all commonsense to lay down that in a case, the circumstances of which show that the rule of prudence does not apply, the Court is precluded from acting on evidence which it believes to be true.

21. It appears to me that this dictum of Henderson J. is contrary to the views expressed by their Lordships of the Privy Council in Mahadeo v. The King, 40 C.W.N. 1164 : A.I.R. (23) 1936 P.C. 242 : 37 Cr.L.J. 914. In that case their Lordships laid down that the evidence of an accessory must be corroborated in some material particular not only bearing upon the facts of the crime, but upon the accused's implication therein. They held further that the evidence of one aacomplice is not available as corroboration of another. At page 1170 Sir Sidney Rowlatt who delivered the judgment of the Board observed:

It is well settled that the evidence of an accessory, which Sukraj painly was on his own showing, mU3t be corroborated in some material particular not only bearing upon the facts of the crime but upon the accused's implication in it and further that evidence of one accomplice is not availab'e as corroboration of another: The King v. Baskerville (1916) 2 K.B. 658 : 86 L.J. K. B 28 This rule as to corroboration, as was pointed out in the casa just cited, long a rule of practice, is now virtually a rule of law, and in ft case like the present it is a rule of the greatest possible importance, the position being that there are three persona all implicated 'in a crime and one of them or two of them exculpates himself or themselves by fastening the guilt upon the other.

22. It seems to me clear from this decision of their Lordships of the Privy Council that in a case of this kind a conviction should not be based upon the evidence of an accomplice and that evidence alone. This is a case such as was contemplated by Sir Sidney Rowlatt, namely, a case where a number of people were implicated and those called as witnesses for the prosecution were obviously trying to throw the whole blame on the accused. It is just the sort of case where this rule of caution which has now become to all practical purposes a rule of law should be applied, and the conviction cannot stand unless the evidence of these accomplices is corroborated in material particulars by the evidence of persona who are not accomplices.

23. It was suggested that the evidence of Raj Mohan Karanjai and the evidence of the other admitted accomplices was corroborated by the fact that the declarations made by the various persons were in some cases partly in the handwriting of the appellant Cohen. Had that been established by independent evidence it would nave afforded valuable corroboration. But it is conceded that the only evidence that these documents are partly in Cohen's handwriting is the evidence of persons who are accomplices. There is no evidence at all corroborating the main witnesses as to this transaction except the evidence of persons who are obviously accompli, cease. The evidence of Raj Mohan Karanjai is Clearly unworthy of credit unless corroborated and by reason of the Privy Council case in Mahadeo v. The King 1916-2 K. B. 658 : 86 L. 3. K. B. 28 to which I have made reference, I am bound to hold that the evidence of the other witnesses cannot corroborate Raj Mohan Karanjai's evidence because it is the evidence of accomplices. Tainted evidence cannot corroborate other tainted evidence and there is no untainted evidence in this case corroborating any of these accomplices. That being so, this conviction cannot be Bustained and must be set aside.

24. In the result therefore I would allow this appeal, effaced the conviction and sentence and acquit the appellant. If the fine has been paid it must be refunded. The appellant need not surrender to big bail and his bail bond is discharged.

Das Gupta, J.

25. I agree.


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