A.N. Chakbabarti, J.
1. There three appeals have been preferred by four appellants who have been convicted under various sections by the Judge, Additional Special Court, Calcutta, the Appeals Nos. 234 of 1962 and 243 of 1962 being preferred by the appellants Ram Raj Singh and Mangal Singh Limbu respectively and the appeal No. 242 of 1962 by Nagendra Prosad Singh and Ananta Kumar Sinha. All the four appellants have been convicted under Ss. 120-B/420 I. P. C. The appellants Ramrai and Ananta have been further convicted on nine counts, three of which are under Section 420 read with Section 34 of the I. P. C., three under Section 467 read with Section 34 of the I. P. C. and three under Ss. 471/467 read with Section 34 of the I. P. C. The appellants Mangal Singh and Nagendra Prcsad have been further convicted on six counts, two of them being under Section 420 read with Section 34 of the I. P. C., two under Section 467 read with Section 34 I. P. C. and two under Sections 471/467 read with Section 34 of the I. P. C. The appellants have all been sentenced to R. J. for four years on each of the counts, the sentences being made to run concurrently.
2. The appellants were members of the Railway Protection Police, now known as Railway Protection Force, stationed at Sealdah Sub-division of the Eastern Railway and having their camp at nf rikeldanga. The appellants Ram Ral Singh and Mangal Singh Limbu held the rank of Sub-Inspector or Subedar while the appellants Ananta Kumac Sinha and Nagendra Prosad Singh were constables. Whenever necessary members of the Railway Protection Police stationed at Sealdah used to be sent on duty to outstations, this being known as 'Line duty'. For such 'Line duty' the members of the force were entitled to get some travelling allowance. For the purpose of drawing the travelling allowance they were required to submit T. A. Journals furnishing the details of the journeys made. As most of the Constables were illiterate the journals used to be prepared by some of the literate Constables in the camp while those in whose names the journals were prepared used to put their thumb-impressions or signatures on them. There were bill clerks in the office who used to prepare T. A. Bills from these journals. The Bills used to be checked first by the Sub-Inspectors who were Platoon Commandants and then by the Inspectors who were Company Commandants and thereafter also by the Assistant Commandant and Commandant and then sent to the Divisional Accounts Office. When the Bills had been passed by the Divisional Accounts Office payments used to be made through pay clerks. The persons taking payment had to put their signatures or thumb-impressions on the T. A, Bills by way of acquittance, such signatures and thumb impressions being attested by a Sub-Inspector.
3. Some time in the year 1955 a complaint reached the authorities that some malpractices were prevalent in the Sealdah R. P. P. in the matter of drawing of travelling allowances. This led to an enquiry which revealed some facts leading to the prosecution of the appellants and another person named Sourendra Nath Mukerjee since acquitted by the trial Court.
4. The allegations against the appellants were briefly these: During the year 1953 and part of 1954 the appellants Ananta Kumar Sinha and Nagendra Prosad Singh who were literate Constables had fabricated a large number of false T. A. Journals in the names of various persons. The journals contained thumb-impressions which purported to be those of the persons in whose names travelling allowances were claimed, but in reality they were the thumb-impressions of the appellants Ananta and Nagendra Prosad. The T. A. Bills contained thumb-impressions which purported to be given by way of acquittance by the officers receiving payments. These thumb-impressions also were of either Ananta or Nagendra Prosad. The appellants Ram Raj and Mangal Singh who were Sub-Inspectors attested these false thumb-impressions in the T. A. Bills as genuine.
5. The prosecution case was that the appellants entered into a conspiracy to cheat the government by manufacturing false T. A. Journals and obtaining payments of travelling allowances in the names of various members of Railway Protection Police on diverse dates between January 1953 and March 27, 1954 by affixing false thumb-impressions on the acquittances in the T. A. Bills and attesting them as genuine.
6. The prosecution led evidence regarding several instances of such alleged cheating of the government by the appellants. The relevant T. A. Journals and the T. A. Bills containing the acquittances said to be forged were exhibited at the trial. Several persons in whose names travelling expenses were drawn testified that the thumb-impressions appearing in the Journals and the acquittances were not theirs nor did they authorise the appellants Ananta or Nagendra Prosad to claim or draw any travelling allowances on their behalf. The thumb-impressions in the T. A. Journals and in the acquittance column of the T. A, Bills were found to tally with the thumb-impressions of either Ananta or Nagendra Prosad.
7. Upon this material the trial Court framed a charge of conspiracy against all the appellants which reads as follows:
'That you, between January 1953 and 27th March 1954 at Beliaghata in the District of 24-Parganas agreed to do or cause to be done an illegal act, to wit cheating the Govt. of India in respect of money including Rs. 554/2 made up of various sums, belonging to the said Government, which act was done on diverse dates during the aforesaid period in pursuance of the said agreement, by making false travelling allowance Journals and on the basis of such Journals making and submitting false Travelling Allowance Bills and converting such bills when passed into receipts (i.e. valuable securities) by affixing false thumb-impressions on them and attesting such thumb-impressions as genuine and using such forged documents as genuine for the purpose of drawing travelling allowances under the names of a number of Railway Protection Police Personnel of Sealdah and also others (though unknown and not belonging thereto) to none of whom did any such travelling allowance accrue or fully accrue or was paid or fully paid, and thus dishonestly inducing, by such deception, pay clerks of the said Government, such as Sarvasri Shyama Pada Banerjee, Bishnu Pada Bhattacharya, Manindra Nath Ghosh and others, to part with such Bums as aforesaid belonging to the said Government to fictitious persons, which the said pay clerks would not have done, had they not been so deceived, and that you thereby committed an offence punishable under Section 120B of the Indian Penal Code read with Section 420 of the said Code (viz. the offence of criminal conspiracy to cheat), and within my cognizance.'
8. In pursuance of the aforesaid conspiracy the appellants were said to have committed several acts of cheating, forgery and using of forged documents as genuine. But specific charges for these offences against each of the appellants were limited to only three in number. Evidence regarding the other acts of similar nature was treated merely as evidence under Section 10 of the Evidence Act proving the existence of conspiracy.
9. The specific charges related to the Travelling Allowances drawn in the names P. W. 9 Nirmal Ratan Sarkar, P. W. 14 Sitaram Routh. P. W. 15, Ramkishan Routh, P. W. 30 Ashim Kumar Bhaduri and one J. N. Das. This last named person could not be examined as according to the prosecution there was no such person In the Railway Protection Police at Sealdah.
10. The T. A, Bills showed that Rupees 19/8 was drawn on the 5th March, 1954, in the name of F. W. 14 Sitaram Routh, According to the Finger Print Expert P. W. 25 the thumb-impression appearing in the acquittance column was that of the appellant Ananta. The appellant Mangal Singh Limbu attested this thumb-impression. Upon these materials the appellants Ananta and Mangal Singh were charged on three counts under Sections 420, I. P. C., 467, I. P. C. and 471/467, I. P. C. all read with Section 34 of the Code.
11. Similarly, for the travelling allowance of Rs. 21/15 drawn in the name of P. W. 9, Nirmal Ratan Sarkar on the 29th January, 1954, three charges under the same three sections as above all read with Section 34 were drawn up against the appellants Ananta and Ram Raj, the former being the author of the alleged forged thumb-impression and the latter, the attestor.
12. For a travelling allowance of Rs. 21/15 drawn in the name of P. W. 15, Ram Kishan Routh on the 29th January, 1954, similar three charges were framed against Ananta and Ram Raj, Ananta being alleged to be the forger and Ram Raj the attestor.
13. In the same manner Nagendra and Mangal Singh Limbu were charged on three similar counts for withdrawal of Rs. 19/8 in the name of P. W. 14, Sitaram Routh on the 17th February, 1954, Nagendra being alleged to have forged the thumb impression in the acquittance and Manual Singh having attested it.
14. There were another three similar counts against the same two appellants for taking payment of Rs. 19/8 in the name of J. N. Das on the 17th February, l951, by means of false thumb-impressions said to have been put by Nagendra and attested by Mangal Singh.
15. Lastly, there were three similar counts of charges against Nagendra and Ram Rai in connection with taking payment of Rs. 18/11 on 29th January, 1954, in the name of P. W. 30, Ashim K. Bhaduri, Nagendra being alleged to be the author of the false thumb-impressions and Ram Raj, the attestor.
16. All the accused persons pleaded that they were innocent They denied that they had entered into any conspiracy to about the Government. Ananta Kumar Sinha and Nagendra Prosad Singh, the two Constables denied that they were the authors of the thumb impressions whose authorship was ascribed to them. Ram Rai Singh and Mangal Singh Limbu, the two sub-Inspectors while being examined under Section 342 of the Cr. P. C. submitted two written statements in which they stated, inter alia, that they could not read English; that they could barely sign their names in English; that they did not know what was written in the T. A. Bills but that on some occasions they did put their signatures on them 'as a matter of form' only when they were put up before them for their, signatures.
17. The prosecution examined in all 47 witnesses. The specific charges of cheating, forgery and use of forged documents, as already stated, related to the T. A. Bills in the names of Sitaram Routh, Ram Krishan Routh, Nirmal Ratan Sarkar, Ashim Kumar Bhaduri and J. N. Das. All of them, except J. N. Das, were examined by the prosecution.
18. Nirmal Ratan Sarkar, P. W. 9 and Ashim K. Bhaduri, P. W. 30 said that at the relevant time they were under training and that hence they had not to do any 'Line duty.' They, therefore, had no occasion to claim any Travelling Allowance. Sitaram Routh, P. W. 14 and Ram Krishna Routh P. W. 15 said that they were mere Sweepers; that they were never sent out on 'Line duty' and that they had never claimed nor drawn any travelling allowance.
19. There were 15 other witnesses whose names appeared in the T. A. Journals and T. A. Bills. They are P. Ws. 10-13, 1G, 17, 27, 31-33, 36, 38 and 44-46. The Finger Print Expert's opinion was that the thumb-impressions appearing in the T. A. Journals and T. A. Bills of these people also were either of Anants or of Nagcndra Prosad. The persons whose thumb-impressions they purported to be also said that they did not give the thumb-impressions in question nor had they authorised Ananta and Nagendra to draw any Travelling Allowance on their behalf. The evidence regarding the drawing of Travelling Allowances in the names of these 15 persons on false thumb-impressions was adduced under Section 10 of Evidence Act simply for the purpose of proving the existence of a conspiracy amongst the accused persons.
20. P. Ws. 20, 21 and 24 Shyama Pada Banerjee, Bishnu Pada Bhattacharyya and Monindra Nath Ghosh respectively were the Pay Clerks through whom the Travelling Allowances were said to have been disbursed. They said that they used to bring the money for disbursement to the Narikeldanga Camp. They described the manner of disbursement as follows; They used to sit in a room at Narkeldanga Camp with one Sub-Inspector or while another Sub-Inspector used to go out to the verandah in front of the room with the T. A. Bills and take the thumb-impressions of the recipients. Thereafter coming back to the room he used to attest the thumb-impressions in the presence of the Pay Clerks and then go out again to the verandah and distribute the money. It is through these pay clerks that the Government was said to have been cheated. Shyamapada and Bishnupada however, failed to identify the appellant Ram Raj Singh as one of the Sub-Inspectors attesting the thumb-impressions,
21. Then there was the evidence of J. W. Goodall P. W. 4 and Dasarath Singh P. W. 34. Mr. Goodall was the Assistant Commandant of the Railway Protection Police at Sealdah from October 1950 to the end of April 1953 and Sri Dasarath Singh was the Assistant Commandant from 1st May, 1953.
22. Mr. Goodall's evidence was to this effect:
'On my assuming charge of the Sealdah Sub-division, I found several irregularities in the matter of drawing the T. A. Bills. I brought those irregularities to the notice of my superior officer, that is the commandant, Colonel Preston. As the matters did not improve in spite of my bringing the irregularities to the notice of commandant, I introduced the system of issuing the Command Certificates. Before introducing that system, there was the Duty Roster maintained in the office wherein the movements of escorts and the journeys of the other persons of the staff were noted; but the method of notings was such that the interpolations and false entries were quite possible. At the end of each month, statements in the prescribed form used to be prepared from the Duty Roster, and those statements are the T. A. Journals. And this is the reason why I introduced the system ot issuing the Command Certificates, as I wanted that the approval of Commandant should be taken and I got that approval from the Commandant to introduce the system. I got the system of issuing Command Certificates from the Police Regulations, Bengal and thought that this system should also be introduced here.
The introduction of the issue of Command Certificates proved to be an effective check to a certain extent. Eventually this system also proved to have its drawbacks. There are certain columns in the Command Certificates requiring checks as to the names of the parties proceeding on journey, where proceeding to, date and time of arrival and departure, number and the particulars of trains in which the journey was undertaken, and so on. The Guards' signatures had also to be taken on the Command Certificates. But this system also failed because in some cases the parties without going to the places made false statements in the Command Certificate. The Command Certificates were to be checked by the Sub-Inspectors and then by the Inspector, and the Certificate was required from the Sub-Inspector or Subedar, in charge of the company concerned, regarding the correctness of the particulars.
The entries in the T. A. Journals are made from the Command Certificates by the literate Constables under the Inspector-in-charge of the Company concerned. The Inspector or the Sub-Inspector in charge of the company concerned is expected to check all the T. A. Journals, which are prepared from the Command Certificates by the literate Constables and to put his signature on such journals. The T. A. Journals used to be forwarded to me in bulk from the Inspectors and Subedars from various Companies for my counter signature. After counter-signing them, I forwarded them to the accounts section. It was not any part of my duty to check every Journal individually nor was it possible for me to do so.'
23. This witness further stated:
'The personnel were divided into several parties--into two or more according to the exigency from day to day--before they went out on duty. Duty slips of the personnel were sent by the Ilavildar Major to the office of the Lines Inspector, as and when the force was required. Everyday one officer--whether Sub-Inspector or an Assistant Sub-Inspector--was posted in the office of the Lines Inspector for duty for 24 hours, He was generally responsible to see the force moving. Under him a Munsi was posted to write out the Command Certificates daily. The Command Certificate book was maintained in duplicate by carbon process. The head of each party moving out, had to approach the Munsi for their Command Certificates. All particulars regarding the date, time and distribution and the names and the members of the force, including their numbers, and also the particulars of duties to be performed by them, the time of their departure and arrival etc. had to be noted in those Command Certificates. The head of each party had to put his signature on the Command Certificates. The Munsi had to write out the Command Certificates under order from the A. C.'s office (Crime Inspector) over the phone. The duties of the Inspectors or Sub-Inspectors were detailed by me or from my office whenever required. The party, which went out on escort duty had to obtain the signature of the Guard of the train, by which it carried the journey. When the parties were at the outposts, their duties were checked by the Asst. Commandant, Inspector or any officer detailed for the purpose. For other duties of the parties they were also checked by the officers detailed for the purpose. In case of the escort duties of the parties, the guard of the train concerned had to put in his initial on the Command Certificate in order to show that the parties had performed their journeys. In case of Cash Guard duties of the parties, there was a form of General Diary, maintained, and the Havildar in charge of the Camp or of Guard, had to write out the details In the said General Diary. In case cash money had got to be sent to a destination by a Motor Van, the Guard accompanied the Pay-clerk, and the Pay-clerk, after the disbursement of the money at the destination signed the Command Certificate. In respect of other duties of the personnel, the diaries were maintained by the Havidar, who was the camp-in-charge, and the Crime Inspector used to check them and when anything unusual happened that was noted in the Diary, and then it was put up before me. After the completion of the duty, the head of the party had to surrender his Command Certificate to the office of the Duty Officer, wherefrom it originated All particulars, regarding the performance of duties of the parties, were noted in these Command Certificates. There are different columns in the Certificates to be filled up. When the Command Certificates were surrendered, the time of their surrender was noted on each of them by the Line Munsi. But if the Command Certificates were surrendered at a later hour or if there was any report written on those Command Certificates, they were put up before me at my office for passing orders. The Command Certificates, so surrendered, were at first kept in bundles and after preparation of the T. A. Journals from them, they were pasted on the original places they occupied in the Command Certificate Book. I do not know the form in which the Duty Roster was kept, but the Havildar Major used to maintain such a duty-Roster.
Each platoon was under the charge of a Subedar -- a Sub-Inspector -- and each Company was in charge of an Inspector and each section was in charge of a Havildar or Nayek.'
24. Dasarath Singh who succeeded Mr. Goodal in May 1953 deposed as follows:
'While I was stationed at Sealdah, I knew how the T. A. Journals and the T. A. Bills were prepared and how the moneys of the T. A. Bills were disbursed. The T. A. Journals were prepared on the basis of the Command Certificates, in the 'Company' offices at Narikeldanga. These Command Certificates were prepared in the office of the Line Inspectors and they were issued over the signatures of the Duty Officers who were always in the rank of Sub-Inspectors. According to the Railways Rules, each individual, whose T. A. was concerned was responsible for the preparation of the T. A. Journal in his favour. But as most of the Constables were illiterate their T. A. Journals were prepared by the literate Constables of each Company. I do not remember who of the literate Constables used to prepare such T. A. Journals in the year 1953. But in 1954 it came within my personal knowledge that accused Nos. 4 and 5, N. P, Singh and A. K. Sinha and other literate Constables used to prepare the T. A. Journals on behalf of the illiterate Constables as well as on behalf of others.
In the normal course, no T. A. was allowed to any personnel of the R. P. P. undergoing training at Sealdah. But in special cases, when there was shortage of staff, particular duties outside the Narikeldanga Camp were allowed to be performed by the trainees along with the other Constables, and in those cases the trainees were allowed T. As,
Each company, during my time at Sealdah, had three Platoon Commanders of the rank of the S. I, of Police. They used to check up the T. A. Journals with the connected papers in order to ascertain whether the journies, referred to in the T. A. Journals, were actually performed or not. Thereafter they used to be checked by the Company Commandants of the rank of Inspector of Police, Thereafter those T. A. Journals used to come in the office of the Asst. Commandant for preparation of the T. A. Bills. On the basis of the said T. A. Journals, the Bill Clerk used to prepare the T. A. Bills and then the Bill Clerk used to put up before me both the T. A. Bills and the corresponding T. A, Journals to ascertain whether all the T. A. Journals were billed. I also checked certain percentage of the T. A. Journals to see whether they were according to the rules. The rules provide that in order to obtain the T. As. the personnel must have to go beyond five miles from Sealdah and to continue to remain over eight hours on a calendar date. I countersigned the T. A. Journals and forwarded the T. A. Bills to the Commandant's office for payment to the respective parties, over my signatures. After the Commandant signed those T. A. Bills, they were sent to the Divisional Accounts Office at Sealdah, from which the payments were made.'
25. The evidence of the last named two witnesses specially of Mr. Goodall quoted above gives an idea as to how the T. A, Journals and Bills used to be prepared and to what checkings they used to be subjected Originally the T. A. Journals used to be prepared from Duty Rosters but as that practice afforded some scope for false claims being made the system of issuing Command Certificates was introduced and it was from the entries made In the Command Certificates that the journals used to be prepared.
26. The prosecution did not produce the Command Certificates. Before the Trial Court the defence contended that to the absence of the Command Certificates it could not be said with certainly that the claims made in the journals were false. The learned Trial Judge, however, rejected this contention observing that some of the persons in whose names T. A. Journals and Bills had been prepared were Sweepers and Cooks, e.g., P. Ws. 10 to 14 and 46, that they had not to do any 'Line duty' and that hence were not entitled to any travelling allowance; and he held that the falsity of the claims so far at least these persons were concerned was clearly established even though the Command Certificates were not produced.
27. The learned Judge further held that whatever other short-comings there might be in the prosecution evidence the fact that the acquittances in the T. A. Bills were forged was clearly proved, by the expert opinion. The false thumb-impressions were put by either Atlanta or Nagendra Prosad and Ram Rai and Mangal Singh attested them as genuine. From this the learned Judge concluded that both sets of accused were actuated by the common intention to forge, and necessarily also to cheat, as forgery was merely a means to achieve the object of cheating. He found Ananta and Ram Raj guilty on all the counts. Apart from the common charge of conspiracy they were charged with the offences of cheating, forgery and using of forged documents as genuine in respect of the T. A. Bills of Sitaram Routh, Asim Kumar Bhaduri and J. N. Das. Of these three, the last named person was not examined by the prosecution. Hence the trial Judge held that the charges of cheating, forgery and using of forged documents as genuine in so far as the T. A. Bill of J. N. Das was concerned were not proved. This was the reason why the conviction of these two accused were on a lesser number of counts as compared with the other two.
28. The common ground In all the three appeals was that no case of cheating or forgery was established by the facts proved and that there was no evidence of conspiracy. Apart from this common ground on merits some specific points more or less of a technical nature were also raised by the lawyers representing the different sets of appellants.
29. Mr. Chintaharan Roy appearing for Ram Rai Singh in Appeal 234 of 1962 contended in the first place that the trial was bad inasmuch as the order recording the taking of cognizance by the Special Court was vague. He pointed out that the Judge had in his order No. 1 referred to the petition of complaint filed by the Investigating Officer and also other papers as the materials upon which cognizance was taken by him. Mr. Ray contended that the Judge should have stated specifically what those other papers were. Now, this was a case where cognizance bad been taken prior to the amendment of Section 5 (1) of the West Bengal Criminal Law Amendment (Special Courts) Act 1949. The Full Bench in Ajit Kumar Palit's case, : AIR1961Cal560 (FB) held that prior to the amendment the order of allotment, or if it did not contain sufficient details of the case, any material on the record, was sufficient for taking cognizance by the Special Court, This view was upheld by the Supreme Court in its decision reported in : AIR1963SC765 . So the complaint filed by the Investigating Officer Would, by itself, have been quite sufficient for the Judge for taking cognizance and that being the position it mattered little whether or not he had taken into consideration any additional material or if taken into consideration what the material was. There is, therefore, no substance in this contention of Mr. Ray,
30. His next contention was that the sanction to prosecute was defective Inasmuch as it was given by the officer during whose time the prosecution was launched and not by the officers during whose time the alleged offences were committed. The accused persons being removable from service by the Commandant of the R. P. P. no sanction under Section 197 of the Criminal Procedure Code was at all necessary in this case. No sanction under Section 196-A of the Code was also necessary as the object of the alleged conspiracy was to commit an offence under Section 420, I. P. C. which is a cognizable offence punishable with imprisonment for a term exceeding two years. The contention regarding sanction was therefore, entirely misconceived and must be rejected.
31. Yet another contention raised by Mr. Ray was that the Judge who delivered the judgment did not himself record the evidence and that this has caused prejudice to the accused persons. Sub-section (2) of Section 9 of the West Bengal Criminal Law Amendment (Special Courts) Act. 1949, however, permits the successor Judge to do so. It is entirely in his discretion to recall and re-examine any of the witnesses if he thinks that to be necessary in the interests of justice. The learned Advocate submitted that in the exercise of this discretion the Judge should at least have re-examined some of the more important witnesses such as P. Ws. 4, 34, 35 and 47. It appears that the evidence was recorded quite at length and the nature of the case was such that demeanour of witnesses was not likely to help much in the appreciation of evidence. So it cannot be said that the Judge has acted improperly by not exercising his discretion to call the witnesses again and that the accused persons were, prejudiced in any way by the omission. Hence this contention of Mr. Ray also fails.
32. Mr. Nalin Chandra Banerjee appearing for the other appellants contended that the multiplicity of charges bewildered the accused persons in their defence and that hence the trial was bad. It was not, however, disputed that any number of charges against any number of persons could be tried jointly at one trial it they were all connected by a conspiracy. What was urged was that the charge of a single conspiracy embracing all the accused persons was a mala fide one inasmuch as it was resorted to solely for the purpose of evading the provisions of law relating to misjoinder of charges and persons.
33 It was pointed out that in each of the specific charges Section 34, I. P. C. has been added. These offences are said to have been committed in furtherance of the common intentions of two persons. But the conspiracy was hatched by four persons. Mr. Banerjee argued that since four persons were in the conspiracy whatever overt acts were done in pursuance of the conspiracy must have been done in furtherance of the common intention of fill the four. He submitted that the charges of specific offences in so far as they impute common intention to two persons only were inconsistent with the general charge of conspiracy by four. And he further argued that if these specific offences were really committed in furtherance of the common intention of two persons, then there was not one general conspiracy by four persons but a large number of smaller conspiracies each involving two persons.
34. The above contention is obviously wrong because Section 34, I. P. C., requires not only common intention but also participation in the crime. When a specific offence is committed by sonic of the conspirators in pursuance of the conspiracy, the common intention of all would not be enough to fasten the guilt on all of them. It is only those who had actually participated in the crime that would be held responsible for its commission. The number of persons figuring in the specific charges would not, therefore, necessarily be the same as in the conspiracy charge and the difference in number would not amount to any inconsistency in the charges. Section 34 of the I. P. C., is applicable when some criminal act is done jointly in furtherance of the common intention of all while a conspiracy is merely an agreement to commit a crime. Addition of Section 34 to a charge does not convert it to a conspiracy charge. There was, therefore, no defect, in the charges.
35. The specific charges being linked by the common charge of conspiracy their joinder at one trial was not illegal. Mr. Banerjee's contention in this respect has no substance.
36. As regards merits the common case of all the appellants is that the evidence adduced was not sufficient to prove either forgery or cheating.
37. The prosecution case was that the accused persons cheated the Government by dishonestly inducing the pay clerks to make payment against false thumb-impressions in the acquittances. Three of the pay clerks, Shyamapada Banerjee, Bishnupada Bhattacharyya and Manindra Nath Ghosh were examined by the prosecution. But their evidence that they used to come to Narikeldanga Camp and made payments was directly contradicted by the Assistant Commandant, Dasarath Singh. He said that no pay clerk used to come to Narikeldanga Camp during the relevant period for disbursing the salaries and travelling allowances and that it was the Line Inspector or in his absence the Sub-inspectors who used to bring the money from the pay price along with the pay bills and make payment to the Constables. The Line Inspector, Mr. Dampen, did not, of course, admit that he himself ever disbursed the travelling allowances, but neither did he support the prosecution case that payments used to be made through pay clerks. According to him payments used to be made through the Subedars or Sub-Inspectors. This is a very glaring discrepancy in the evidence.
38. It further appears that the prosecution could not also prove satisfactorily that the travelling allowances claimed in the T. A. Bills were not actually due to the persons in whose names the Bills were made. The prosecution produced the T. A. Journals and T. A. Bills but not the Command Certificates. Mr. Goodall's evidence was that previously T. A. Journals and Bills used to be prepared on the basis of Duty Rosters but that as that provided some scope for false claims being made the system of Command Certificates was introduced. These certificates would show the details of movement of a Railway Protection Police while on line duty. Mr. Goodall and other witnesses said that during the relevant time the T. A. Journals used to be prepared from the details given in the Command Certificates and the T. A. Bills used to be prepared on the basis of the T. A. Journals. So it was not possible to say with certainty without a reference to the Command Certificates whether the claims for travelling allowances were false or genuine. On the prosecution's own showing the Command Certificates were very material documents and no explanation whatever was given for their non-production. So there was no reason why the usual presumption that if produced they would not have supported the prosecution case should not be made.
39. The Trial Court brushed aside this deficiency in the evidence by referring to the oral evidence of the witnesses in whose names the T. A. Bills were drawn. Some of the witnesses said that they did not make the journeys in question. The bills related to the years 1953 and 1954 while the witnesses deposed in the year 1961. They had to do 'Line Duly' and perform journeys in connection with such duties on numerous occasions every year. It was certainly not possible for them to remember alter the lapse of 7 or 8 years whether any particular journeys shown in their names in the T. A. Journals and Bills were actually performed by them or not. If anybody said he did he should at once be disbelieved.
40. There are, however, 4 witnesses who gave some reasons why they could not have drawn any travelling allowance. The specific charges of forgery and cheating related to the T. A. Journals and Bills which stood in their names. Of these 4 witnesses P. W. 9, Ninnal Ratan Sarkar and P. W. 13, Ashim Kumar Bhaduri said that they were mere probationers at the relevant time and that they were not required to do any 'Line duty' during this period. P. W. 14 Sitaram Routh and P. W. 15, Ham Kishan Routh said that they were sweepers and that their duties were in the Camp at Narikeldanga and that they never accompanied any R. P. P. Party going on 'Line duty.'
41. But their evidence was belied by that of their superior officers. P. W. 4, J. W. Goodall said that sweepers also used to be sent to outstations for doing sweeping duty. And P. W. 34 Dasarath Singh said that, although normally the trainees were not seat out on 'Line duty', in special cases when there was shortage of staff, they also used to be sent out on such duty.
42. In view of this discrepancy in oral evidence the Command Certificates which would have been decisive on the question whether these persons actually earned any travelling allowance or not should have been produced. The prosecution, failed to produce them. They, therefore, failed to prove that no travelling allowances were actually due to the persons in whose names the bills were made.
43. The next question is were the moneys received by the accused persons appropriated by them or paid to the persons in whose names the bills were drawn. It was the prosecution case that the Sub-Inspectors used to take the payments and then make over the moneys to the Railway Protection Police personnel. That was the general practice. As regards the particular items proved in this case some of the persons in whose names the bills were drawn said that they did not get any such amounts while others said they used to receive payments through the Sub-Inspectors but that it was not possible for them to remember whether any particular amount was actually paid to them or not. The witnesses were being examined 7 or 8 years after the travelling allowances were drawn. It would certainly be unusual for anybody to remember whether any particular amount was received by him as travelling allowance so many years back. Furthermore most of the witnesses in whose names the T. A. Bills appeared to have been drawn admitted that deductions were made from their salaries for drawing travelling allowances not actually earned by them. The two trainees Nirmal Ratan Sarkar and Ashim Kumar Bhaduri admitted that proceedings were drawn up against them for drawing excess travelling allowance of false T. A. Bills. Such being the standard of honesty of these people no credence could be placed on their evidence when they pretended to remember that they did not get the payments. The position, therefore, was that there was no credible evidence that the moneys did not reach the persons in whose names they were drawn.
44. Now, if it is assumed that the thumb-impressions appearing in the acquittance columns of the T. A. Bills were false the accused persons can certainly be said to have practised deception when they obtained payments against such false thumb impressions. It was the prosecution case that the persons deceived were the pay clerks. But, as already stated, evidence was highly discrepant as to whether pay clerks used to come to the Camp with money or the Sub-Inspectors used to fetch them from the pay office. Whatever might have been the practice the Sub Inspectors must have received the money from some government official whose duty it was to see that the moneys were disbursed on proper receipts being taken. It was this official whether he was a pay clerk or not was deceived. He would certainly have not parted with the government money if he had any reason to believe that the Sub-Inspectors would pass off false thumb impressions in the acquittances as genuine.
45. But all deceptions do not amount to cheating. In order to constitute cheating the deception must be with a dishonest or fraudulent intent. Here, as already pointed out, the prosecution failed to prove that any pecuniary loss was caused to the Government. There was no satisfactory evidence that the travelling allowances claimed were not actually due or that the moneys drawn were not duly paid to the rightful persons. So dishonesty was not proved. But can the accused persons be said to have committed any fraud? Fraud is a very wide term. When as a result of deception the person deceived is injured in any way or is exposed to the risk, of any injury or loss fraud may be said to have been committed. In the instant case the thumb-impressions of the recipients in the acquittance are said to be not genuine. So they could deny the acquittances and claim the travelling expenses from the Government over again. This is the risk of injury or loss to which the Government was exposed by the alleged deception. Viewed in this light the deception might be regarded as fraudulent. There was, however, no such claim against the Government during the 7 or 8 years that elapsed between the payments and the starting of the criminal proceedings. The alleged deception would certainly amount to cheating, but in the circumstances the offence would be merely a technical one.
46. The above discussions have been made on the assumption that the thumb-impressions in the acquittances were forged or as, it should be better called false. The only evidence of forgery was the opinion of the finger print expert. The expert said that the thumb-impressions were either of Ananta or of Nagendra Prasad. The question is whether upon this evidence alone, the thumb-impressions can be held to be false. Greater reliance is generally placed on the evidence of a finger print expert than on that of handwriting expert. But nevertheless expert evidence is nothing but a mere opinion and it has always been regarded as unsafe to rely upon opinion evidence without some corroboration. Of course the persons whose thumb-impressions they purported to be. have said that they were not their thumb-impressions. But such denials are utterly valueless, for it is not possible for a layman to say by merely having look at a thumb-impression whether it was his own or not. The thumb-impressions of these persons were taken for the purpose of comparison but for reasons Hot explained they were eventually not compared by the expert with the impugned thumb-impressions. Had such comparisons been made and had it been found on comparison that the two sets did not tally then of course we could have been more sure about falsity of the impugned thumb-impressions. It was a very unsatisfactory way of proving that the impugned thumb-impressions were not of the persons whose thumb-impression, they purported to be by showing that they resembled the thumb-impressions of some of the accused persons, the more direct method would have been to compare the impugned thumb-impressions with those of the persons whose thumb-impressions they purported to be. The prosecution should have first established that the thumb-impressions were false and then proceeded to show that the authors of these false thumb-impressions were some of the accused persons. If both the findings were there, viz. that the thumb-impressions in question did not resemble those of the persons whose thumb Impressions they purported to be and also that they resembled those of some of the accused persons, one finding strengthening the other, the expert opinion could have been relied upon. But as it is the opinion stands wholly uncorroborated and as such it is insufficient to prove that the thumb-impressions in question were false.
47. In the premises the alleged forgery was not proved beyond reasonable doubt, and if there be no forgery there would not be any cheating or using of forged document as genuine. As regards the charge of conspiracy that too would fail as the only overt acts alleged were the specific offences of cheating which the prosecution failed to establish. The convictions of the appellants on none of the charges can, therefore, be sustained.
48. In the result all the three appeals are allowed. The convictions of the appellants and the sentences passed against them on all the counts are ret aside and they are all acquitted of all the charges. The appellants be discharged from their respective bail bonds.
Sarma Sarkar, J.
49. Prosecution failed or neglected to produce either the duty roster or the command certificate, as the case may be, to show that several travelling allowance bills which are the subject matter of the charges either under Section 420/34 of the Indian Penal Code or under Section 467/34 of the Indian Penal Code were not due to the persons in whose names the bills were drawn up. Mere verbal denial 7/8 years after the bills were drawn up by the persons in whose names the bills were drawn up is at least inconclusive particularly when some of them admitted that proceedings were drawn up against them and they were made to repay for the excess amount of the travelling allowance drawn by them,
50. Prosecution in the present case, however, produced some cogent evidence to show that the acquittance in the travelling allowance bills in respect of which the appellants were convicted under Section 420 or 467 read with Section 34 of the Indian Penal Code was not given by the persons in whose names the bills were drawn or acquittance was given, but that these thumb-impressions both in drawing up the bills and in giving the acquittance were given either by the appellants Negendra Prosad Singh or Ananta Kumar Sinha, literate constables and their thumb marks were attested by the other two appellants either Ramraj Singh or Mangal Singh Limboo, sub-inspectors or Subedars. There is no direct evidence of any witness that either of the appellants Ananta Kumar Sinha or Negendra Prosad Singh gave the thumb Impressions in the Acquittance Roll. But the Finger Print Expert found that their thumb impressions agreed with the thumb Impressions in the acquittance. The Finger Print Expert also took the thumb-impressions of the persons in whose names the acquittance was given. But for reasons best known to the prosecution the Finger Print Expert did not Rive any opinion whether their thumb impressions tallied with the thumb impressions in the Acquittance Roll. It is true that they have denied the thumb-impressions in the acquittance Roll and denied also that they travelled. But this denial is at least ineffective even though it may be true that no two thumb impressions may be alike. But having regard to the standard of 'proof required from the prosecution, there is no justifiable explanation why positive proof available to the prosecution was not adduced in support of its case to prove that the bills and acquittance were false and forged.
51. Even assuming that thumb-Impressions in the bills and acquittance were false, there is no convincing, direct or circumstantial evidence on record to find that the appellants or any of them acted dishonestly or fraudulently which are the chief ingredients of the offences under Section 420 or 467 of the Indian Penal Code. In my view, it is immaterial whether the Government had to pay twice over for the same travelling bills or if there was any subsequent claim against the Government or not by the genuine holders of the travelling bills. It is also Immaterial whether the Pay Clerks P. Ws, 20, 21 and 24 made the payments from the Sealdah Office or at Narkeldanga camp in respect of the disputed payments In 1953-54. If the money had been paid to the wrong persons or if the appellants took It dishonestly or fraudulently with a view to causing either wrongful gain or wrongful loss to any person or to defraud the Government in making payments to wrong persons, the offence will be complete. But in the present case there is no satisfactory evidence on record to find this beyond reasonable doubt The appellants Ananta Kumar Sinha and Nagendra Prosad Singh are literate constables and it is clear from the prosecution evidence that the literate constables used to draw up T. A. Bills particularly when the drawer of the bill was illiterate. There is no evidence on record to find that any money was paid to them or through them. In fact, the prosecution is silent on the point as to who received the money. But this much has been brought out in evidence that at least some of the persons In whose names the false thumb impressions are said to have been made were made to disburse the excess payment In respect of some T. A. Bills. The prosecution did not clarify by introducing the records to show that the excess payment to them was not in respect of the bills which are the subject matter of the charges in the present trial.
52. As regards attestation, by the appellants Ramraj Singh S. I. and Mangal Singh Limboo S. I., there Is convincing evidence that they attested the thumb impressions in the acquittance which were, in all probability, false. But there is no evidence on the prosecution side that any payment was made through either of them. It is interesting to note that P. Ws. 20, 21 and 24 only proved the system, as to how payment was made but did not specifically say that the amounts covered by the subject matter of the charge were paid either to them or through them for payment to the drawers of the bills. It is interesting to note that P. Ws. 20, 21 and 24 admit that it was their duty to make direct payment to the payee on getting proper identification of the payee by attestation or otherwise. There is no explanation on record for Irresponsible payment by the Pay clerks in violation of the rules known to them. In this connection the defence proved Ex. C from the prosecution witness which lays down 'when an officer or subordinate named in a bill to witness payment thereof is for some cause or other unable to witness the payment, he should authorise the disbursing Pay clerk in writing to pay the bill in the presence of the persons (who must be Railway servants) he wishes to depute for the purpose. This authority will be attached by the pay clerk to the Bill concerned.' This also makes it clear that the responsibility of payment attaches to the pay clerks though he has to be satisfied on the attestation or identification of a particular Railway Officer. There is, thus, no prosecution evidence to find apart from the attestation by the appellants Ramraj and Mongal Prosad Limboo that any payment was made through them or even in their presence. On this state of evidence on record there may be some suspicious circumstances against the appellants. But it cannot be held that the prosecution has established beyond reasonable doubt that the appellants acted either dishonestly or fraudulently, though loss might have been caused to the Government.
53. For reasons stated above, I agree with my Lord that the appeal should be allowed and the conviction and sentence of the appellants passed under various charges should be set aside.