1. This is an appeal by Sachindra Mohan Sen Roy who has been convicted by the first Special Tribunal at Alipore on a charge under Section 120-B read with Sections 420, 468 and 471 of the Indian Penal Code, under which he was sentenced to seven years' rigorous imprisonment, also on two charges under Section 468 of the Code under which he was sentenced to five years' rigorous imprisonment, and nine charges under Section 420 of the Code under which he was also sentenced to five years' rigorous imprisonment-all the sentences to run concurrently. He was also sentenced to pay a fine of Rs 100000/-and in addition to pay a fine of Rs. 217500/-under Section 10 of ordinance No. XXIX of 1943 as amended subsequently, in default to suffer rigorous imprisonment for 18 months.
2. There were three accused before the Tribunal, one D. Saha alias Nani Sen Gupta, Jatindra Chandra Sen and the present appellant. D. Saha was acquitted by the Tribunal. Jatindra Chandra Sen pleaded guilty and his case was disposed of separately. Originally one S.N. Das alias Jatish Chandra Das Gupta had been sent up in connection with the offence. The case against him was withdrawn and he became substantially an approver and gave evidence as the first prosecution witness.
3. The facts may be stated very briefly so long as the less important details are left out. The prosecution case was that the accused Jatindra Chandra Sen was an audit clerk in the office of the Controller of Supply Accounts. S.N. Das alias Jatish Chandra Das Gupta, P.W. 1, and D. Saha ran a bogus firm. United Engineering Corporation at 130B Russa Road. According to Jatish Chandra Das Gupta, the real brain behind the conspiracy was the present appellant Sachindra Mohan Sen Roy, but he avoided taking any explicit part in any of the dealings with the public or in any matters where signatures were required. The parties are related-Jatish Chandra Das Gupta is a brother of Dr. Benoy Chandra Das Gupta, P.W. 16, whose wife is a sister of the accused Sachindra Mohan. Again, Jatindra Chandra Sen is a cousin of the wife of Sachindra Mohan (in the evidence he is stated to be a brother-Sachindra Mohan's own statement is that he is a cousin). Nani Sen Gupta is also related by marriage to Dr. Benoy Chandra Das Gupta, the brother of P.W 1. It is the prosecution case that the whole scheme was worked out at the residence of Dr. Benoy Chandra Das Gupta, P.W. 16, at Kalighat, where P.W. 1 used to live with his brother and where the accused Sachindra Mohan had come to stay sometime aboat December 1943.
4. The scheme in its essence was a very simple one Taking advantage of the position of Jatindra Chandra Sen, documents were brought into existence in the office of the Controller of Supply Accounts, namely, acceptance of tender, Ex. 3, and related to inspection reports on the basis of which bills prepared by the bogus firm, United Engineering Corporation, and submitted to that office came to Jatindra Chandra Sen himself for passing in audit, were duly passed, and cheques amounting in all to Rs. 2.75.000/-were sent to the United Engineering Corporation. It is unnecessary to expound the matter in detail as to exactly how the system permitted of this. We may mention briefly that it was facilitated by the fact that there was a division between the Purchase Office known as D.G.M.P. in Esplanade (Calcutta) and the Controller of Supply Accounts, the paying office at Mission Row. There were no documents, of course, in the Purchase Department to support the payments, and subsequently after payments had been made when questions were raised and investigation made it was found that the whole thing was bogus, that there had been no tender to correspond to the acceptance of tender, Ex. 3, and no goods had been supplied. In fact, the goods mentioned were of a type unknown and the inspection notes were totally bogus. It is sufficient to say that the system was that payment could be made on an acceptance of tender plus satisfactory inspection notes which were really certificates that the goods had been supplied on the tender referred to and accepted by the acceptance of tender. The approver describes how the documents were concocted in his brother's house on the terrace. Jatindra bringing the various necessary tools, typewriter, stencils and so forth and forms and specimen signatures of one A.C. Roy and Lt. Dawson so that the necessary forgeries might be made.
5. Accounts were opened at the end of December in the Indian Standard Bank and a day or two later another account in the Sree Bank by the accused Jatish Chandra Das Gupta under the name S.N. Das. All the cheques paid to the conspirators were paid into one or other of these accounts. The nine cheques were paid out between the 20th January and the 21st February 1944. The banking accounts were cleared shortly afterwards. The office at 130 B, Russa Road was deserted and nothing was left to be found of the United Engineering Corporation.
6. The police began to enquire into the matter in May 1944. Jatindra Sen was arrested early in June 1944. Jatish Chandra himself, the approver, was arrested in the Court of the Chief Presidency Magistrate on 24th January 1945, in somewhat dramatic dircumstances. One Pyne of the Indian Standard Bank who had helped Jatish Chandra to open his account there had been arrested on charge of embezzlement of some money of that Bank. He was appearing in the Chief Presidency Magistrate's Court while Jatish Chandra himself was there on a day fixed for judgment in a case under Section 411, Penal Code against him. Pyne pointed Jatish Chandra out as the man wanted in connection with the present case and Mr. Brindaban Dutta, P.W. 9, to whom investigation of the case had been transferred came to the Court and arrested Jatish Chandra who immediately made a statement to him and made a judicial confession to a Magistrate either on the 25th or 26th January. Nani Sen Gupta was arrested in November 1944.
7. A part of the method adopted in the office of the United Engineering Corporation was to write letters to itself from various outside firms to give an appearance that the office was a going concern presumably. Amongst these are six which according to Jatish Chandra were either written or signed by the accused Sachindra Mohan.
8. According to the approver he was given certain shares in some Companies, in particular Gour Netai Tea Co. Rungpur Tea Association, which were purchased for him by the accused Sachindra Mohan amounting in all to some Rs. 12,000. He also says that out of the proceeds he was told by Sachindra Mohan that Rs. 1,40,000 had gone to accused Jatindra, Rs. 15,000 had been paid to Nani, another man Dilip who came into the affair towards the end had been paid Rs. 30,000 and the balance some Rs. 78,000 presumably was left with Sachindra Mohan.
9. That the approver's story is substantially true is undisputed and undisputable, and that a swindle of the nature described by him was, operated is beyond all doubt. The total sum of Rs. 2,75,000 was obtained from Government through this bogus firm by means of a bogus acceptance of a tender which never was made or called for.
10. In the present appeal the only question we are concerned with is whether the appellant Sachindra Mohan Sen Roy has been proved to have taken the part in the proceedings allotted to him in the evidence of the approver.
11. The prosecution sought to corroborate the approver by the following five items of evidence:
(1) The evidence of the landlord, Burjor Borabji Randelia, P.W. 12, who says that when the office room at 130 B, Russa Road was taken the accused Sachindra Mohan along with Jatisb Chandra and Nani came and made arrangements:
(2) The evidence of Jatindra Nath Sen, P.W. 17, who says that on a certain day which he puts somewhere in October or November he came to the house of Dr. Gupta and wanted to speak to Sachindra Mohan. He saw something of what was going on on the terrace and Sachindra Mohan persuaded him to leave, acting in a somewhat suspicious manner:
(3) The evidence of Shambhu Nath Banerji P.W. 40, who has a business at Narayanganj and says that he knew the accused Jatindra and also the appellant Sachindra Mohan and that they came to him in March 1944 and asked him to keep Rs. 40,000 on behalf of the accused Jatindra. He eventually accepted this sum and it was deposited in the books of his firm in the Kharagpur Branch. The cash book was produced and there was an entry showing a deposit of the amount on 2lst March 1944, Ex. 128, showing it as a loan received from Jatindra Chandra Sen per Mr. S.N. Banerji of Rs. 40,000:
(4) The prosecution relied on the proof as to the writing in three letters Exs. 65, 66 and 67 and signatures in Exs. 68, 69 and 70. The expert gave an opinion that the first three were written.by the appellant Sachindra Mohan on comparison with some admitted writings of his. He expressed no opinion about the last three documents which were typed and merely signed in bogus names:
(5) In addition to the above proof was given of dealing in shares in companies named by the approver in February or later months by him and Sachindra Mohan and other purchases of shares by Jatindra and by Sachindra, 250 shares each in the Lachmi Spinning and Weaving Mills Ltd., Narayanganj, 250 purchased by Sachindra in March and 250 by Jatindra in May 1944.
12. The Tribunal acquitted the accused Nani Sen Gupta taking, to say the least, a rather generous view of the possibilities that he might have been merely a clerk in the concern having some reason to doubt its character but not knowing precisely what nefarious scheme was being put through in its name. On the other hand, they had accepted evidence of the three witnesses P.Ws. 12, 17 and 40, as reliable to corroborate the approver. They explicitly say that they place no reliance on the evidence as to the handwriting in Exs. 65, 66 and 67. They remarked on the evidence of the approver and it is clear that apart from the question of corroboration they considered that there was good reason to place substantial reliance on his evidence. In particular, they referred to the absence of any reason on the part of the approver to drag in his relative Sachindra Mohan as a co-conspirator. The only suggestion in cross examination to him on this point. was that he had borrowed money from Sachindra Mohan for some aerodrome contract and it was suggested that he had falsely implicated Sachindra in order to escape his own liability. The accused Sachindra was himself examined as regards the share transaction. He denied any knowledge of any of the share transactions of Jatish Chandra and finally alleged that Jatish Chandra had come to stay in his house at Narayanganj in March or April 1944, that Sachindra had lent Jatish Chandra four or five hundred rupees some months previously and that when he asked for repayment Jatish Chandra replied he was in difficulties; he paid back about Rs. 100 in December 1913 or January 1944, but did not like being asked to repay; that during this visit at Narayanganj Sachindra discovered certain very nasty and dirty traits in his character which he feared might affect his family and domestic affairs, so he took Jatish Chandra to task and drove him out of the house. After returning to Calcutta, Jatish Chandra managed to inform him through friends and relations that he intended to teach him a lesson. The Tribunal deferred to this and commented on the fact that none of this story was put to Jatish Chandra in cross-examination, no witnesses were called to prove the threat and they evidently considered the weakness of the defence in this matter as considerably strengthening the view that Jatish Chandra had no reason whatever for implicating Sachindra Mohan in the conspiracy beyond the fact that he had really been taking a leading part in it. (After considering certain evidence his Lordship proceeded as follows.).
13. As regards the point that the appellant Sachindra made his statement almost at once to the police on his arrest on 24th January, this would be a circumstance not precisely of corroboration but it is certainly a circumstance which would suggest that there was some guarantee that the statements made by Jatish were not thought out or instigated by the police investigator in the case. In other words, they would suggest that his story was such that less corroboration than would otherwise be the case was required. Mr. Dutt has, however, pointed out from Jatish's own evidence that at the time of his arrest he himself had reached a frame of mind when he desired to have done with the matter and that he had been, in fact, meeting the accused Jatindra after the latter had been first arrested in June 1944. The possibility that they might have prepared some story in some way trying to mitigate their offence by dragging in somebody else has to be considered. Substantially, the position seems to be this: either you have to rely wholly on approver Jatish Chandra or you have to acquit the accused in this case. There appears very little substantial reason to doubt the story of the approver. Nevertheless, you have to take that bearing in mind fully the wise cautions indicated in illus. (b) of Section 114, Evidence Act, itself founded on a long history of decisions in England. An approver or an accomplice is a dangerous witness. You can rely on his evidence under Section 133, Evidence Act. It is very unwise to do so. The present is a case where one may be tempted to do so. The Tribunal has done so and in doing so, in our opinion, has supported their action by accepting some corroborative evidence which in our opinion in itself does not justify the name of substantial corroboration.
14. The result is that we think that the present conviction ought not to be upheld. The appeal is accordingly allowed. The conviction and sentences passed on the accused are set aside. The accused is directed to be released.
15. I agreee.