Criminal Appeal No. 4 of 1915.
1. These are two Government appeals arising out of an alleged series of ~ conspiracies to defraud the. East Indian and connected Railways by endorsing a false weight on the back of the consignment notes, whereby the railway receipts were made out for sums much less than what was really due to the Railway Companies and the consignees benefited by the fraud to the extent of the freight wrongly calculated, so that in one year the Railway Companies concerned have lost Rs. 12,500.
2. The procedure was very simple it sufficiently ingenious. The clerk, whose duty it was on any given day to convert the true weights in ton's into the Indian weights, in maunds from the weighment slip sent from Howrah after the wagons had been weighed, entered a weight several tons less than that on the slip and made the corresponding shortage in the calculation of the weight in maunds. The clerk whose duty it was to calculate the freight to be charged, it is said, was thereby deceived, though it is quite possible he may have been an accomplice, and charged a large sum less than the railway was entitled to for carrying the goods. The consignees who took delivery profited by the fraud and in the cases now before us are said to have paid the accused Mon Mohan Roy, a loader of the East Indian Railway Company, various sums as an illegal gratification for helping to carry out the fraud by making false endorsements on the consignment notes. The trial of the cases was held before Babu R.N. Chatterjee, an experienced Deputy Magistrate, at Howrah and in both the cases he dealt with the evidence as a whole in exhaustive and careful judgments and eventually convicted in case No. 4 Mon Mohan Roy, the loader, East Indian Railway, Dinonath Pal, the head of the firm of Molasses Merchants at Kooshtea, and Janaki Nath Pal his son, also a member of the firm, under Section 120B, Indian Penal Code of conspiracy to defraud, and sentenced Mon Mohan Roy to one year's rigorous imprisonment, Janaki Nath to 9 months and Dinonath to 4 months' under three counts, the sentences to run concurrently. He also gave various terms under Sections 420, and 420 read with 109, 161 and 161 read with 109, apparently all to run concurrently. So that the sentences under 120B were really the substantive sentences in the case. In appeal the learned Sessions Judge has dealt with the cases in a somewhat per-functory manner and has made cross-references to the evidence and judgments in the two cases, which is irregular and confusing. He has rightly found that the convictions under Section 120B cannot stand by reason of the fact that the offences were committed before that Section came into force, but he has entirely omitted to notice that this is immaterial as the law of abetment includes abetment by conspiracy, which was distinctly charged before the Magistrate under Section 420/109. This has led him to consider nothing but the direct evidence against Mon Mohan of making the endorsement of false weights on the consignment notes, and finding this evidence to be insufficient on grounds which we shall presently have to deal with, he has thrown out the whole case holding that unless and until the alleged act of cheating is proved against Mon Mohan no question of taking an illegal gratification or of abetment can arise.
3. It is hardly necessary to point out that there is such a thing as, circumstantial evidence and as was remarked by Sir Lawrence Peel, C.J., in the case of R. v. Hadger Starkie on Evidence p. 132 (1852):
It is perfectly true that the dark covertness of crime cannot often be laid open, that conspiracies like other crimes must be generally supported by circumstantial proof.
4. Here the circumstantial proof of a conspiracy to defraud the East Indian Railway is overwhelming, though at the outset we can only say that certain firms conspired with certain officers of the railway to that end. In this particular case we have the specific firm of Dinonath Pal in negotiation with the accused Mon Mohan about something and as this firm has through its dealings with one of the loading officers of the Howrah Goods Station been able to defraud the companies of considerable sums and as Mon Mohan's own name signed by himself appears in one of the note books of the firm and there is positive evidence which, if believed, proves that it was Mon Mohan's duty to make out the weights on the consignment notes, we think that there can be no doubt that under Section 10 of the Evidence Act the note books and jama kharach of the firm of Dinonath can be used, as they were used by the learned Deputy Magistrate, as evidence of abetment of conspiracy against Mon Mohan Roy. As regards the Judge's finding that the evidence as to the figures being in Mon Mohan's hand has broken down by reason of the inability of the witnesses to stand the test of a partially concealed attendance register, we can only say that the teat imposed was not a fair test and the greatest expert in handwriting in the world could not have succeeded in it. But we may point out that the witness Madhub, Superintendent of the Goods Office, who has 23 years of unblemished service in the Railway came so extraordinarily near to complying with the test that we are convinced that he is intimately acquainted with Mon Mohan's handwriting and can recognise it. He was tested with the first page of the attendance register where the names of Upendra Nath Das and Mon Mohan Roy immediately follow one another and he picked out the figures against the name of Upendra Nath Das as being in Mon Mohan's handwriting. Now an examination of the book clearly discloses that the entries of the names and the figures of these two loaders are in the same hand, as frequently happens, throughout the book and would naturally be the case when two men arrive together and one sits down to write their names and the hour of their arrival. From admitted writing of Mon Mohan's we can have no doubt that the names are written by Mon Mohan and not by Upendra and, therefore, presumably the figures which are bold and characteristic are also Mon Mohan's. The same bold and characteristic figures appear on the back of the consignment notes, Exhibits 8, 9 and 12, which are the subject of the charges, and we can see no reason to doubt the genuineness of Madhab's identification of his figures.
5. We do not rely so much upon Kali Charan Sarkar's evidence, because he is said by the defence to be the person who must have entered the figures and it is quite possible that he may have been an accomplice. At any rate he like the other subordinate clerks in the Goods Office shows a tendency in cross-examination to give the facts a turn favourable to Mon Mohan. Dealing next with the considerations which have been urged by the defense to show that Mon Mohan could not have entered the figures and that it was not his duty to do so, we can only say that we believe the positive evidence of Superintendent Madhub that it was his duty and we do not accede to the contention that Mr. Pemmell, the Senior Inspector of Accounts, East Indian Railway, who derives his knowledge primarily from Madhub, is personally ignorant of what he deposes to. The delegation of authority may be in the hands of Madhub, but a superior who has had charge of the enquiry must be assumed to have satisfied himself that what he himself vouches for is a fact. It is also obvious from the details of the procedure that the officer who loads and seals the wagon and marks the consignor's statement would naturally be the proper person to enter the actual weight found by the weighing clerks at the coal yard.
6. The contentions against this are that Mon Mohan goes out to work in the yard at 3 P.M. and, it is assumed, does not return to the office, as the witnesses say that the office closes at 5 P.M., though any one who has work to finish can stay on as long as he chooses. It is pointed out that Mon Mohan loaded the wagon about which the first count of the charge in this case is concerned on the 1st November. The weighment slip was received on the 2nd November and it is in evidence that these slips come in at 4 P.M. and are received by Kali Charan Sarkar or some other clerk and as the Railway receipt was prepared after the weights in maunds had been calculated on that same day, the 2nd November, Mon Mohan cannot have had anything to do with it. This is assuming that Mon Mohan does not return to the office at 5 P.M. or after, of which there is no evidence. On the contrary the attendance register shows that he seldom if ever left office before 6 P.M. So that he had ample time to perform this simple duty in respect of all wagons loaded under his supervision the day before.
7. It is always easy where there are several men working in the office to try and shift the responsibility to some one else. Of course when a man is absent. from illness or any other cause some one else must do his work and the evidence to this effect is sought to be used to throw a doubt on Mon Mohan's complicity in the transactions evidenced by Exhibits 8 and 9. Those exhibits, however, themselves show that Mon Mohan was in office on those days and filled in the forms.
8. With regard to Exhibit 12 Mon Mohan% writing does not appear, as the wagon was loaded at Shalimar by one Pasupati Mandal who was acting for Upendra Nath Das. The evidence is, however, clear that even Upendra Nath had nothing to do with working out the weights in maunds and that this was always done by Mon Mohan and it is a remarkable circumstance that the figures by whomsoever made are exactly similar to those on Exhibits 8 and 9. Coming now to the note books and jama kharaeh of the firm of Dinonath Pal, we find it admitted that Janakinath in this particular case, just as we shall see the gomastha Narain did in case No. 5, came down to Calcutta to purchase molasses and his expenses are entered in the jama kharaeh books w.hich have been laid before us There is also mention of sums paid by him to Mon Mohan in the same book on the dates to which these consignment notes refer. A money order sent by Narain in connection with another case shows that it was this Mon Mohan Roy of the Ramkrisnapore Howrah Goods Office that was in communication with the firm of Dinonath and there is no other Mon Mohan Roy in the office according to the evidence. Moreover Mon Mohan Roy's signature, undoubtedly genuine, appears in one of the note books under a sentence the meaning of which has not been discovered. It runs Tumi loili pore ami ar jaibo na' which means 'after you have taken I will not go any more.'
9. It was sought to be urged that these note books and jama kharaeh had been obtained under a search warrant and that all the formalities had not been carried out. It appears that a search warrant was issued but it was not used as the books were voluntarily produced by the old man Dinonath, who appears to have had no knowledge of the fraud and to have given every assistance to the Police.
10. The attack is, therefore, shifted from the alleged irregularities to the delay in producing them in Court and it is also pointed put that the passages which Sadananda Babu, the Auditor of the East Indian Railway, and the Sub-Inspector speak to as being admitted by Janaki were not marked at the time. The search was ordered by a Magistrate who had no seisin of the case, before the investigation was nearly completed and the books appear to have gone at once to the superior Police Officer at Howrah and to have been examined by the Government Pleader. They were produced in Court in their regular sequence when the Sub-Inspector Jaganath Mukherjee and Babu Sadananda Paulit P.W. Nos. 10 and 11 proved them. There is no internal trace of their having been tampered with and we can see no ground whatever for holding that any of the entries in the note books have been fabricated. The jama kharaeh kent in the ordinary course of business are clearly untouched. We think there can be no doubt that Janakinath paid Mon Mohan Roy Rs. 3 on the three occasions shown in the books and that the proved and completed fraud coupled with the evidence of Mon Mohan's duties and his handwriting fully establish Mon Mohan Roy's guilt under Section 420, Indian Penal Code, and Janakinath Pal's abetment of the same under Section 420/109. The learned Counsel for the Crown does not press the charge against Dinonath Pal.
11. He is a very old man and has ceased to take any active part in the affairs of the firm. He appears to have suspected of nothing of what his son and servants had been doing and gave the authorities every assistance in his power.
12. We are, therefore, disposed to dismiss the appeal of Government in his case arid confirm his acquittal. As regards Mon Mohan Roy and Janaki Nath Pal we think the sentences originally passed by the Magistrate under Section 120B were quite appropriate, especially as in Mon Mohan's case there is another case of a similar nature in which we are delivering judgment after this. We, therefore, set aside the order of acquittal passed by the learned Judge and convicting Mon Mohan Roy under sec-420, Indian Penal Code, sentence him to be rigorously imprisoned for one year.
13. We convict Janaki Nath Pal under Section 420/109 and sentence him to be rigorously imprisoned for 9 months.
14. As regards the charges under Sections 161 and 161/109 we do not think it necessary to come to any finding. The conduct of the two accused appears to be covered by the general charge of cheating and the illegal gratification was the consideration for the fraud. In any case no separate sentence would bra necessary.
Criminal Appeal No. 5 of 1915
15. In this appeal the facts are precisely similar to those in Appeal No. 4 except that the gomastha of Dinonath Pal, one Narayan Chandra Dutt, was the intermediary in this case and there was only one count charged instead of three.
16. The evidence as to Mon Mohan's duties, handwriting and the note books and jama kharach are of the same nature as in the other case and we find on that evidence that Mon Mohan did make the false endorsement upon Exhibit (5 dated 6th March 1913, that Narayan was in Calcutta purchasing molasses from Dinonath Pal on that date and that he entered in his note book and in the jama kharach Rs. 24 in all paid to Mon Mohan Roy on 3 challans, of molasses of which only one is in issue in this case.
17. The same objection was taken as to the admissibility of the note books, but whatever may be thought as to the impossibility of the witnesses remembering three months afterwards the unmarked passage said to have been admitted on May 3rd in their presence by the accused Narayan and Janaki Nath Pal, who has already been dealt with there can be no difficulty in finding on the evidence of Babu Sadananda Paulit, a highly respectable officer of the Railway on Rs. 360 a month, that Narayan took the book to Calcutta as he said he did and made entries in it there and the jama kharach book kept in the regular course of business clearly shows the date 6th March and onwards during which Narayan was purchasing molasses and paying Mon Mohan Roy for something.
18. Another curious contention is pressed by the defence in this appeal, that it was Kalicharan who was deceived by the false entry and so made to enter on reduced freight and that as he suffered no wrongful loss no charge of cheating can lie.
19. It is not at all clear, nor is it material that Kalicharan was deceived, but the intonation was by deceiving the Railway Authorities to induce them to deliver goods to Dinonath at Kooshtea for a very much smaller frieght than they were entitled to.
20. The Railway Authorities were so deceived and did what they would not have done if they had known the truth. The other arguments urged on either side are the same as we have already noticed and we do not think it necessary to comment any further on them.
21. Finding in this case that Mon Mohan Roy made a false entry of weights on Exhibit 6 with a view to deceive the Railway Company and to cause them wrongful loss and wrongful gain to the firm of Dinonath and that Narayan, the gomastah of that firm, abetted the act of cheating by joining a conspiracy to commit fraud in pursuance of which he paid money of his master's firm to Mon Mohan, we set aside the order of acquittal in their cases and convicting them respectively under Section 420 and 420/109, Indian Penal Code, sentence Mon Mohan to be rigorously imprisoned for 6 months under Section 420 and Narayan to be rigorously imprisoned for 6 months under Section 420/09.
22. We do not think it necessary to pass any orders under any other Section.
23. For the reasons given in Appeal No. 4 we uphold the acquittal of Dinonath Pal.
24. The District Magistrate will take steps for the arrest and committal of the accused Mon Mohan Roy, Janaki Nath Pal and Narayan Chandra Dutt to jail.