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Charu Chandra Ghose and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in81Ind.Cas.810
AppellantCharu Chandra Ghose and ors.
RespondentEmperor
Excerpt:
penal code (act xlv of 1860), sections 30, 415, 420 - cheating, ingredients of--decree and order in execution, whether 'valuable securities'--court passing decree, whether delivers property--decree obtained, on false claim--offence. - .....others, were, tried under section 120b read with section 420, read with section 109 of the indian penal code, before the additional sessions judge of burdwan and a jury. the jury convicted the said seven persons and the learned judge agreeing with the verdict of the jury, sentenced the said seven persons to variou terms of imprisonment as under, vis., the accused, charu chandra ghose to three years rigorous imprisonment; the accused, akhoy kumar rooj and jiban chandra roy, to two years rigorous imprisonment; the accused, akhoy kumar pal, to one year's rigorous imprisonment; and each of the accused, ganpat pandey, rajanikanta samui and charitar muchi, to one year's rigorous imprisonment.2. the facts connected with these two appeals, shortly stated, are as follows: on the 17th july 1919,.....
Judgment:

1. The appellants in Appeal No. 408 were four persons named Charu Chandra Ghose, Akhoy Kumar Rooj, Akhoy Kumar Pal and Jiban Chandra Roy, alias Jiban Krishna Roy; the latter died after the appeal had been filed and at the present moment the appellants are the three first named persons. In appeal No. 409, the appellants are three in number, namely, Ganpat Pandey, Rajanikanta Samui and Charitar Muchi, alias Ram Charitar Muchi. The above-named seven persons along with six others, were, tried under Section 120B read with Section 420, read with Section 109 of the Indian Penal Code, before the Additional Sessions Judge of Burdwan and a Jury. The Jury convicted the said seven persons and the learned Judge agreeing with the verdict of the Jury, sentenced the said seven persons to variou terms of imprisonment as under, vis., the accused, Charu Chandra Ghose to three years rigorous imprisonment; the accused, Akhoy Kumar Rooj and Jiban Chandra Roy, to two years rigorous imprisonment; the accused, Akhoy Kumar Pal, to one year's rigorous imprisonment; and each of the accused, Ganpat Pandey, Rajanikanta Samui and Charitar Muchi, to one year's rigorous imprisonment.

2. The facts connected with these two appeals, shortly stated, are as follows: On the 17th July 1919, one Jiten Das (P.W. No. 67) made an application before the District Magistrate of Burdwan, asking the latter to Jake action against a number of persons who were in the habit of instituting false cases in the Civil Courts against innocent persons. Ten persons were named in Jiten Das petition, which has been tendered as an exhibit in this case and which is Exhibit 190. The District Magistrate forwarded the petition to the Superintendent of Police in Burdwan for necessary action. The latter, on receipt of the petition, passed an order on the 16th of August 1919 for arresting the ten persons mentioned in Jiten Das petition and for starting a case against them under Section 110, Criminal Procedure Code. A Police enquiry followed, but although the case under Section 110, Criminal Procedure Code, was started on the 18th of August 1919, the Police did not submit a final report even up to March 1920. On the 3rd March 1920, the Magistrate before whom the proceedings under Section 110, Criminal Procedure Code, were pending, being of opinion that inasmuch as the Police report had not been submitted for a period of nearly eight months, directed the discharge of the said ten persons. On the 17th of March 1920, a first information was lodged against the said persons, charging them with having committed offences punishable under Section 420 read with Section 120B of the Indian Penal Code. On the 21st June 1920, the District Magistrate of Burdwan applied before the Munsif, First Court, at Burdwan, for sanction to prosecute live persons named, Prabhu Ram Pandey, Charu Chandra Ghose, Akhoy Kumar Pal, Amrita Lal Samui and Upendra Nath Naik, for offences under Sections 193, 209 467, 114 and 471 and also under some of these sections read with Section 109 and also under some of these sections read with Section 114 of the Indian Penal Code. In his petition the District Magistrate stated that Prabhu Ram Pandey was a veteran litigant and a proclaimed 'tout' in the District of Burdwan, and the said other four persons were his creatures and associates, and that all of them with other person or persons unknown, were members of a criminal conspiracy for the purpose of, amongst others, fraudulently obtaining moneys or properties from innocent persons or depriving them of their lawful rights by instituting false and fraudulent suits against such persons on the basis of forged documents and by comitting other offences punishable in law or by doing illegal acts with illegal means in connection with those false claims. Particulars were given by the District Magistrate in his said petition of the false and fraudulent suits alleged, to have been brought by the persons, against whom sanction was applied for. On the 25th September 1920, the Munsif granted the necessary sanction. There was an application for revision of the order made by the Munsif before the District Judge of Burdwan and the latter, by his order, dated the 31st of April 1921, revoked the sanction granted by the Munsif. While these proceedings were pending, the Police submitted a charge sheet against certain persons on the 18th of May 1920. It was alleged that the persent accused, along with others, had conspired to cheat people by bringing fraudulent civil suits in Burdwan and in Shahabad and that they were professional swindlers and habitual conspirators.

3. In order to understand the case against the accused persons, it is necessary to mention some of the details of the conspiracies in which they were according to the Police, engaged. It appears that Prabhu Ram Pandey whose name has already been mentioned, claimed to be the reversionary heir of one Sheo Balak, who died some time in 1903, leaving a widow called Jhalo Koer. After Shew Balak's death, it is alleged that Prabhu Ram determined to get hold of Sheo Balak's properties and with that view instituted various suits. One Amar Dayal claimed to be the adopted son of Sheo Balak, having been adopted by Jhalo Koer, and it is said that he used to look after Jhalo Koer's properties. Prabhu Ram Pandey instituted certain suits against Amar Dayal in 1910 and 1911. It was alleged that these suits were false and fraudulent. It appears further that Jhalo Koer became involved in debt and mortgaged her lands on the 14th of Agrahayan 1318 F.S. corresponding with the 30th of November 1910, and executed and registereda deed in favour of Progar Ram, Raghubir Shaha and Badhu for a consideration of Rs. 500. Ram Dhyan Pandey was a witness who identified Jhalo at the time of the registration of this deed. 'A few days after, this, viz., on the, 8th of December 1910, the accused Jivan Krishna brought a criminal case at Burdwan against Ram Dhyan Summons was never served on Ram Dhyan in this case audit is alleged that Ram Dhyan became aware of this for the first time when he was arrested in execution of a warrant at Sasaraim He came to Burdwan and met Prabhu Ram Pandey and invoked his assistance. Prabhu Ram demanded Rs. 10, Ram; Dhyan paid Re. 1 and promised to pay the balance on return home, which he did. Later on, it is said that Prabhu Ram took Ram Dhyan to a temple and madehim promise that be would not go against Prabhu Ram and in that case he would not be put to any trouble. Prabhu Ram, it is further alleged, said that it was at his instance that the case had been instituted. On the 27th of January 1911, the accused, Charu Chandra Ghose, instituted a Small Cause Court Suit, No. 45 of 1911 in the Court of the Subordinate Judge of Burdwan against, Ram Dhyan on an alleged note of hand dated the 28th October 1908. The suit was decreed and compromised for Rs. 214 on, the 20th of February 1911. It is alleged, that Ram Dhyan never came and compromised this suit, nor had he borrowed any money from Charu Chandra Ghose and that Ram Dhyan came to know, of this matter for the first time when his lands, were sold some three, years later in execution of the decree. Raghubir's name has already been mentioned. He was one of the mortgagees of Jhalo Koer and it is alleged that between 1912 to 1917 certain proceedings were taken by some of the accused against Raghubir, In other words, suits were instituted against Jhalo, Amar Dayal, Ram Dhyan, and Raghubir. The above suits, may be classed under one group, being, false suits brought by the conspirators in respect of matters in connection with Jhalo Kper's properties.

4. Evidence as regards two other, was conspiracies was also adduced. It appeals that there was a man called Jaherilal Sadhukhan, who happened to be a friend of Prabhu Ram Pandey. He died leaving a son named Kali Pado Sadhukhan and a widow named Manoda Sundari. One Nabiran Chandra Roy was a tenant of Jaherilal and there was a person named Gosto Behari Bose, who used to look after the properties and conduct litigation on behalf of Manoda Sundari. One Nityanand Shaha had a joint karbar with Manoda Sundari and Kalipada. It appears that after Jaherilal's death, Manoda Sundari and Kalipadi were helped in the joint karbar and in looking after the properties, of Jaherilal by these three persons, named Nabiran, Chandra Roy, Gosto Behari Bose and Nityanaad Shaha. It is alleged that on Jaherila's death, Prabhu Ram Pandey wanted to get hold of Jaherilal's properties and of the karbar and with that object a conspiracy was formed some time in 1910 and various suits and proceedings were brought between 1910 to 1916 and the victims of the conspiracy were Manoda Sundari, Kalipada, Nibaran Chandra Roy, Gosto Behari Bose and Nityanand Shaha. Nityanand, it may be mentioned in passing, was a witness to kobala alleged to have been executed by Jhalo Koer in favour of Prabhu Ram Pandey.

5. The third conspiracy, in espect of which evidence was given, arose in this way. There was a man called, Narain Shaha, who died leaving a widow called Jotika Moyee Narain had a sister named Probhat Kumari, whose husband was one Rajani Kanta Samui. On Narain's death, Rajani Kanta Samui, it is alleged, wanted to get the house which Narain had left. It is alleged, however, that Narain had left a daughter and, therefore, Rajani Kant Samui could on no account get the house of Narain. Rajani Kant Samui's case, however, was that Narain had died childless and that the house was the srridhan property of Narain's mother, and, therefore, in the usual course of things, Narain's sister, Prabhat Kumari, would be entitled to get the house. Litigation ensued in respect of this between 1918 to 1920 and it is alleged that the accused were members of a conspiracy formed to get hold of the property of Narain.

6. The charge framed against the accused, who are now before us, ran in these terms: 'That you between the 27th day of March 1913, and April 1920, at Natunganj and Khajnerber in the town of Burdwan, District Burdwan, and at Kbnpa, Arrah and Sasaram in the District of Shahabad and at other places in British India, were along with others members of a Criminal conspiracy to cheat, (which conspiracy had continued to exist since about 1903) and as members thereof did conspire with one another and Prabhu Ram Pandey, since deceased, Nader Ali Khan, since deceased, and other person or persons unknown, to commit, offences punishable nder Section 420, Indian Penal Code, (each of which is a part of the same scheme and transaction), to wit, to deceive unsuspecting, Judges of Civil Courts who had tried the suits meentioned in schedide A, attached hereto, and also Judges of Civil Courts who hadordered execution of such decrees in execution cases mentioned in schedule B, attached hereto, by a process of your own, namely, firstly, you deceived the first above-mentioned Trial Judges to entertain, unsuspectingly false claims (on the false allegations that the predecessor-in-title of the defendant or the defendants respecttively concerned in the said civil suits, had borrowed money or purchased goods on credit or assigned right to receive money from the plaintiffs who were either one or more of one party or a relation or connection of one of your party therein respectively, at places within the local limits of jurisdiction of such above named Trial Judges, but which places were at great distance from the places of residence of the defendants concerned, and that the debts so alleged to be due to the said respective plaintiffs remained unpaid wholly or in part) and then by causing false evidence to be given before the first above-mentioned Trial Judges, by one or more of your party, to prove due service of summonses (where summonses and copies of plaints were not served according to law), and by claims (Which were known by you to be false) deceived the first above-mehtinoned Trial Judges respectively to believe that the claims in the suit aforesaid, were true and proved as against the defendants concerned therein, and thereby dishoneslty induced or attempted to induce the first above mentioned Trial Judges, so deceived, to make valuable securities (to wit, decrees in small Caus Court suits declaring that the plaintiffs therein were entitled to get properties or moneys from the victims of the said conspiracy, viz., the defendants concerned in such suits or that the legal rights of some defendants were extinguished) and you thereby obtained or attempted to obtain properties by deceitful means, and nextly, you deceived the said first above-mentioned Trial Judges to transmit the decrees, which were passed in the suits aforesaid, for execution to last above-mentioned executing Judges (who had ordered execution of such decrees in the execution cases aforesaid and Within the local limits of whose jurisdiction the defendants respectively concerned in the said suits resided or had properties,) and then deceived such Executing Judges to order execution of the decrees, so transmitted, (on the representation of one or more of your party that the decree-holders were entitled to enforce their decrees with the assistance of the Court) in the execution cases aforesaid, to attach or seize or cause to be attached or seized the bodies or properties of the victims of the said conspiracy, viz., the judgment-debtors concerned in the said execution cases respectively or to seller cause to be sold, properties so attached or seized by Court sale to one or more of your party, and thereby dishonestly induced them respectively to deliver or to cause to be delivered, possession of the properties so sold to one or more of your party as auction purchasers at such sales or to deliver or cause to be delivered moneys realised in such execution cases, to one or more of your party as decree-holders, or to consent to the retention of properties so sold or moneys so delivered by one or more of your party as decree-holders; and you also deceived the Judges of Civil Courts who had decided the suits mentioned in in Schedule C attached hereto and thereby dishonestly induced them or attempted to inducc them respectively to give effect to the false defence set up knowingly by cue of your party, and to make valuable securities (to wit, decrees in such suits declaring that the plaintiffs in such suits were not entitled to their respective lawful claims or parts thereof) and thereby committed an offence punishable under Section 120B/420, of the Indian Penal Code, and within the cognizance of the Court of Sessions. And I hereby direct that you be tried by the said Court on the said charge.'

7. There are three schedules to the said charge, Schedule A containing a list of the false and fraudulent suits alleged to have been brought by the members of the conspiracy, Schedule B being a list of the execution cases which followed the decrees in the suits mentioned in Schedule A and Schedule C being the list of suits in which false and fraudulent defences were set up by the members of the said conspiracies.

8. The matters referred to in the said charge clearly came within the purview of Sections 209 and 210 of the Indian Penal Code and might properly have been made the subject-matters of proceedings against the accused under the provisions of the said two sections. The difficulty, however, in the way of the prosecution lay in the fact that under the provisions of Section 195 of the Code of Criminal Procedure cognisance of any offence Punishable under Sections 209 and 210, among others, could not be taken except with the previous sanction of or on the complaint of, a Court in which such an offence has been committed, or of some other Court to which such Court was subordinate, and in this case, the sanction which had been granted by the Munsif had been revoked by the District Judge, Mr. Cammiade in April 1921. The prosecution, therefore, attempted to bring their case against the accused within the four corners of Section 420 of the Indian Penal Code. Section 420 of the Indian Penal Code runs as follows: 'Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter, or destroy the whole or any part of a valuable security, or any thing which is signed or sealed, and which is capable of being converted intoa valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to a fine.' Now, in order to bring a case within the, four corners of Section 420, Indian Penal Code, it would have to be seen in the first instance whether the ingredients required by Section 415, Indian Penal Code, are present in the facts alleged against the accused. We must, therefore, turn to Section 415, Indian Penal Code, in the, first instance and see what the ingredients required by that section are. Section 415 runs as follows: 'Whoever, by deceiving; any person, fraudulently or dishonestly;. induces the person, so deceived, to deliver any prperty to any person, or to consent that any person shall retain any property or intentionally induces, the person; so; deceived, to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes, or is likely to cause, damage or harm to that person in body; mind, reputation or property, is said to cheat.' The ingredients required by this section, therefore, are:

9. 1. Deception on any person.

10. 2. (a) Fraudulently or dishonestly inducing that person.

11. (i) to deliver any property to any person or

12. (ii) to consent that any person shall retain any property; or

13. (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission-causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

14. Mr. Manmatha Nath Mukherjee, who has appeared on behalf of the appellants, in support of these two appeals, has assailed the learned Additional Sessions Judge's charge to the Jury on various grounds. It is unnecessary for us, in the view we have taken, to refer to all the grounds urged by Mr. Mukherjee, but we shall content ourselves with noticing the more important of Mr. Mukherjee's grounds. In the first place, it is argued that the charge was bad, inasmuch as there was not one conspiracy, which was referred to therein, but evidence was allowed to be given of three conspiracies in which the conspirators were different, the objects of the conspiracies were different and the conspiracies were held at different times. It is complained that in the charge to the Jury the above point was not mentioned and the attention of the Jury was not drawn to it. In the second place, it is argued that the learned Judge's charge to the Jury was defective inasmuch as the attention of the Jury had not been drawn to the following points arising on a charge under Section 420 or 415, Indian Penal Code. In other words, it is argued that it ought to have been put to the Jury that in order to make out the offence of cheating, not only should there have been delivery of property, but it had to be proved that it was property to which the accused was not entitled. Nextly, it is argued that it ought to have been put to the Jury that passing a decree is not tantamount to delivering property and there was no evidence whatsoever that anybody was deceived and that the person so deceived had delivered any property. It is also argued that there was no evidence as to the ingredients required in the second part of Section 415 of the Indian Penal Code. It is further argued that it should have been put to the Jury that there were specific sections in the Indian Penal Code covering the real offences alluded to in the charge and alleged to have been committed by the accused and that the prosecution were not entitled to institute the present case complaining of other offences alleged to have been committed by the accused when sanction, as a matter of fact, had been refused in respect of a prosecution for the real offences commit ted by the accused.

15. It has been represented to us on behalf of the appellants that the case put before the Sessions Judge was wholly different from the one indicated in the First Information. In the First Information it was alleged that the accused persons conspired to cheat numerous persons by bringing fraudulent civil suits in the Courts at Burdwan and Shahabad. In the Sessions Court the prosecution changed their case and it was alleged that the real offence had been committed against Courts of justice. No sanction for the prosecution of offences against Courts of justice was available after the 30th April 1921, when the District Judge revoked the sanction which had been previously granted by the Munsif and in consequence thereof the prosecution, it is alleged, had to fall back upon Section 420, Indian Penal Code, because it was realised that if the case could be brought under the provisions of Section 420, Indian Penal Code, it would not be necessary to rely on any sanction for the institution of the present proceedings.

16. The charge delivered by the learned Additional Sessions Judge of Burdwan to the Jury is a very lengthy document. This has been scrutinized on behalf of the appellants for the purpose of showing that the learned Judge mis-directed the Jury, in that he did not draw the attention of the Jury to the question as to whether the ingredients required by Section 415, Indian Penal Code, were present in the facts alleged by the prosecution. The appellants urge that there are various other mis-directions in the charge bearing on the other grounds taken on behalf of the appellants. In the view we take as regards the learned Additional Sessions Judge's charge on the question as to whether the ingredients required by Section 415, Indian Penal Code, are or are not present in the case on behalf of the prosecution, it will not be necessary for us to go into the other questions of mis-direction argued on behalf of the appellants. We, therefore, propose to confine ourselves to this ground, viz., whether the learned Additional Sessions Judge's charge to the Jury can or cannot be assailed, on the ground that he had not put before the Jury, whether on the evidence adduced by the prosecution, the ingredients required by Section 415, Indian Penal Code, were satisfied. On behalf of the prosecution it has been made clear to us that they did not seek to bring their case within the latter or the second part of Section 415, Indian Penal Code. The case for the prosecution is that unsuspecting Judges of Civil Courts were deceived by the appellants, that the persons so, deceived were induced by the appellants to pass decrees in certain civil suits and thereby induced to deliver properties, and it is alleged that by reason of these steps having been taken by the appellants, they committed the offence of cheating as defined in Section 415, Indian Penal Code.

17. It is argued on behalf of the prosecution that when Judges of Civil Courts passed decrees in suits brought by the appellants or some of them, or when tney passed orders in execution proceedings instituted, by the appellants or some of them, they made valuable securities within the, meaning of the definition contained in Section. 30, Indian Penal Code, andr that they thereby delivered properties, and, further, they would not have delivered properties if they had not been fraudulently deceived by 'the appellants or some of them, and that if that is so, the case is brought within the four corners of Section 415, Indian Penal Code. For the moment we will leave aside orders made in execution proceedings and confine ourselves to decrees. Now, 'valuable security' as defined in Section 30, Indian Penal Code denotes a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under a legal liability or has, not a certain legal right. The word 'decree, has been defined in the Civil Procedure Code and it means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. Let us see, therefore, whether a decree satisfies the definition of a valuable security. In our opinion a 'decree' does not come within the definition of a 'valuable security;' a decree merely declares the existence of legal rights or the extinguishment, extension, transfer or restriction of legal rights, etc., the rights are there, etc and all that the decree does is that it formally expresses the adjudication by the Court on the rights of the patties. Therefore, a 'decree' is not a 'valuable security,' but even if a 'decree' did satisfy the definition of a 'valuable security,' there was nc delivery of property within the meaning of Section 415, Indian Penal Code. When the Court passes a decree, it does not deliver any property, because the original decree remains in Court and the term 'valuable security,' assuning that the term is wide enough to include a decree, can only apply to the original document and not to any copy of a decree which may be supplied on application to the parties. The same arguments would apply to orders in execution. In the next place, who are the persons deceived according to the prosecution. They must be unsuspecting Judges' of Civil Courts according to the prosecution. No evidence has been adduced by calling the 'unsuspecting Judges' of Civil Courts to speak to the fact that they were deceived, because the language of Section 415, Indian Penal Code, requires that the persons deceived must have delivered properties, etc., and in the circumstances of this case, the fact that these Judges were deceived could only have been spoken to, by the Judges themselves.

18. As has been stated above, the prosecution made it clear before us that they did not rely upon the second part of seption 415, Indian Penal Code; it is, therefore, not necessary for us to enquire as to whether on any conceivable view of the matter, this, case could ave been brought within the second part of Section 415, Indian Penal Code. If it were necessary to do so, we might point out that the charge as framed does not cover a case coming within the second part of Section 415, Indian Penal Code, and that the evidence adduced does not satisfy the ingredientsr of the second part of Section 415, Indian Penal Code.

19. The learned Additional Sessions Judge's charge to the Jury is defective in that it omitted to point out to the Jury the matters to which we have drawn attention there was, therefore, misdirection of a very grave character, and in the circumstances, we are constrained to set aside the verdict of the Jury. We are satisfied that on no conceivable view of the matter could the case of the prosecution be brought within the four corners of Section 415, Indian Penal Code, and, therefore, also of Section 420 of the Indian Penal Code. In the view, therefore, which we have taken it is not necessary for us to go into any details in respect of the other grounds taken by Mr. Mukherjee on behalf of the appellants. It is not to be understood, however, that the other grounds of Mr. Mukherjee are not substantial. The materials on the record, and especially the learned Additional Sessions Judge's charge to the Jury, leave no other alternative to us but to come to the conclusion to which we have come. The prosecution was conducted during a very lengthy period and at great public expense that it should have been conducted in that manner in which it has been done, is regrettable but these appeals must stand or fall on the question of mis-direction in the learned Additional Sessions Judge's charge to the Jury. As has been stated above, we are satisfied that there has been misdirection, and we are, therefore, bound to set aside the verdict of the Jury and to direct the acquittal of the appellants, which we do. The bail bonds will be cancelled.


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