Chandra Shekhar Prasad vs Emperor

Varma, J.—This is a petition on behalf of one Chandra Shekhar Prasad who along with one Kanti Lal and two others was convicted under various sections of the Indian Penal Code by a First Class Magistrate of Purnca. So far as he himself is concerned, he was convicted under Ss. 420/120B, 420/109 and 468 and has been sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 100 or in default to undergo rigorous imprisonment for six months more under S. 420/12013. He has further been sentenced to undergo rigorous imprisonment for two years under S. 420/109 and for 18 months under S. 468. The sentences have been made to run concurrently.

The facts out of which this case arises are as follows: The Purnia Local Board manages various kinds of schools under it. Chandra Shekhar is a clerk of the sadr Local Board dealing with the schools which are known as the stipendiary or aided schools. He was also in charge of Board-managed Lower Primary schools. Kanti Lal was another clerk in the sadr Local Board and was in charge of the Board-mar aged Upper Primary schools and secondary schools. When the officers of the Education Department make a requisition the education-clerks have to send out money orders to the various gurus on whose behalf the requisition is made. Now, the clerk in charge of the stipendiary school writes the money-order forms by which the money is sent to the gurus of those schools and the clerk of the Board-managed schools follows the same procedure with regard to the schools in his charge. In the present case we are concerned with six money orders issued in the name of six of the gurus of the stipendiary schools. It appears that when the money order forms are ready the forms are sent along with a statement and a cheque covering the various money-orders to the post office. On receipt of these the post-master deals with them in the ordinary course. The six money orders with which we are concerned, the money under which did not reach the real addressees as contemplated by the Local Board, are the following:

A money-order for Rs. 48 issued in favour of one Maulvi Yakub Hossain a guru of Nauranga L.P. school issued on 11th May 1932, despatched from Purnca on 12th May 1932 and received on the other side on 16th May 1932 (Ex. 37). The next money-order, Ex. 37-a, was for a sum of Rs. 15 issued in the name of Samiruddin was actually addressed to one Bhupati Charan of village Bclua, and the money is alleged to have been received by Dhirnath Jha on 3rd March 1932. The third money-order, Ex. 37-b, meant for Raghubansi Lal for Rs. 12 seems to have been addressed to Dhirnath Jha and the money actually received by him on 18th July 1932. The fourth money-order, Ex. 37-c, meant for Abdus Samad for a sum of Rs. 12 was similarly addressed to Dhirnath Jha and the money was actually received by him on 18th July 1932. The fifth money-order was for a sum of Rs. 13-7, Ex. 37-d, meant for Tamizuddin, which was similarly addressed to Dhirnath Jha and the money was received by him on 2nd February 1932. The sixth money-order, Ex. 37-c, meant for Walayet Ali for a sum of Rs. 15 was addressed to one Maharaj Jha but the money was received by Dhirnath Jha on 2nd February 1932.

Curiously enough, all these money-orders despatched from Purnea have found to be in the handwriting or Dhirnath Jha. The fraud in respect of these money orders came to light when Walyat Ali, for whom the money-order, Ex. 37-c, and Yakub for whom the money-order, Ex. 37, were meant, complained about the non-receipt of the money. This led to an enquiry by the Local Board and the post-office as a result of which the inquiry was made over to the police who after investigation submitted charge-sheet against Dhirnath Jha only. Dhirnath Jha was tried by the Assistant Sessions Judge of Purnea and convicted under Ss. 467, 468, 420/120B and 417/ 120B, Penal Code. In the course of that trial Chandra Shekhar was examined as a prosecution witness and as a result of certain comments made by the Assistant Sessions Judge the police submitted a charge-sheet against five persons including Chandra Shekhar with the result indicated above. Mr. B.C. De appearing on behalf of the petitioner raises various points of law against the conviction of the petitioner. First of all, he suggests that sanction under S. 196-A, Criminal P.C. was necessary, for the offence under S. 468 is a non-cognizable offence. He further says that the case of Chandra Shekhar does not stand alone. Dhirnath has been convicted under Ss. 467 and 463 and also under S. 420/120B. and the charge against Dhirnath was first under S. 467, secondly, under S. 468 and thirdly under S. 417 and S. 420/120B. The last charge runs as follows:

That you, between January and May 1932, at Purnea and Belua, conspired with others for committing the aforesaid forgeries and cheating by falsely identifyins some men in collusion with you as Govind, Bhupati and Maharaj and thereby dishonestly inducing the postal peons to deliver the money to those persons and thereby committed an offence punishable under S. 417, 420, I.P.C., and within the cognizance 120-B of the Sessions Judged.

He emphasizes that in that case Dhirnath was alleged to have conspired with others for committing the aforesaid forgeries by falsely identifying some men in collusion with him as Govind, Bhupari and Maharaj and thereby dishonestly inducing the postal peons to deliver the money to those persons- In order to see the importance of the charge we have to compare the charge that was framed against Chandra Shekhar which was:

That you between 1st January 1932 and 31st July 1932, at Purnea, town and at other places in the District of Purnea did agree with one another and with Dirnath Jha and others unknown to do and cause to be done an illegal act, to with the commission of the offence of cheating the Purnea Sadar Local Board and the Postal authorities at Purnea and Katihar by means of forged money order forms and thereby fraudulently and dishonestly inducing them to deliver to the said Dhirnath Jha moneys covered by forged money order forms and that you were then parties to a criminal conspiracy and that in pursuance of the said conspiracy the Purnea Sadar Local Board and the Postal authorities at Pnrnca and Katihar were deceived by six Exhibits (Ex. 37, 37a, 37b, 37c, 37d and 37e) in the case and were thereby fraudulently and dishonestly induced to deliver to the said Dhirnath Jha the sum of Rs. 48, Rs. 15, Rs. 12, Rs. 12, Rs. 13-7-0, and Rs. 15, and you thereby committed an offence punishable under S. 120-B. I.P.C., read with S, 420, I.P.C., and within my cognizance.

One thing is clear, that the charges framed were under S. 1201B/420, Penal Code. The offence under S. 420 is a cognizable offence punishable with imprisonment for more than two years. Therefore no sanction is necessary for a charge of this nature. One cannot compel the prosecution to get charges framed which require sanction, and as an authority for this proposition I would refer to the case of Abdul Salim v. Emperor, 1922 Cal 107 = 69 I C 145 = 49 Cal 573.

The next point urged by Mr. De is that the case against Dhirnath was taken cognizance of by Mr. K.N. Singh and as the present case is only a continuation of the first, Mr. Singh was the person who should have tried this case against the petitioner and his co-accused. Loosely speaking it may be so, but from the charges quoted it is clear that the charge against Dhirnath Jha was in connection, with a conspiracy between January and May 1932, whereas, the charge against the present petitioner was in connection with a conspiracy within 1st January and 31st July 1932. The cases on which he has relied are those which lay down the well known proposition of law that cognizance is taken of an offence and not of the offenders who are tried under the section. Special stress has been laid on Deonarain Singh v. Emperor, 1933 Pat 244 = 1933 CrC 716 = 147 IC 913 = 35 CrLJ 533 = 12 Pat 341, where this proposition of law has been emphasised by a Division. Bench of this Court. In that case the police sent up a charge-sheet in which they mentioned 22 persons, 9 persons were sent up on bail and the other 13 were not sent up for trial, 6 were shown as absconders. When the charge-sheet was placed before the Sub-Divisional Magistrate he passed the order:

Charge sheet received against 9 accused. To Moulavi S.A. Ashraf, Deputy Magistrate, for disposal.

Then, before the latter Magistrate, 5 out of the 6 absconders appeared and they were tried along with the 9 persons from before. The question arose with regard to the Remaining 8 accused. Mr. Ashraf thought that he was not in seizing of the case of these persons. The Sub-Divisional Magistrate called for a charge-sheet against the remaining accused and then transferred the case to the Magistrate for favour of disposal, and in that case it was held that the Magistrate who was trying the 14 accused persons was in seisin of the whole case and the Sub-Divisional Magistrate was not justified in asking for a charge-sheet against the remaining accused. The facts of that case are clearly distinguishable from the case in hand. In that case the accused were known. Here, at the time of Dhirnath''s trial the name of the present accused did not occur as one of the accused in that case. As a matter of fact, he was examined as a prosecution witness on behalf of the Crown, and from a comparison of the charges framed, which I have quoted above, it is clear that the trial of Dhirnath took place with regard to a conspiracy of which the present accused was not a member which existed at Purnea and Belua where the money-orders were actually received. The other conspiracy that existed at Purnea was not known to the police till subsequent investigations were made. On the facts it appears that the inquiry into one conspiracy disclosed another conspiracy some individual or individuals being common to both. Therefore the contention that the present Magistrate could not take cognizance of or try the offence against Chandra Shekhar fails.

The next contention put forward by Mr. De is that once the accused was examined as a witness for the prosecution it should be held that there was an implied pardon in Ms favour by the Court, and he has relied on Emperor v. Nanda Gopal Roy, 1917 Cal 261 = 35 IC 988 = 17 CrLJ 428. In that case a man was mentioned as an accused and he was discharged under S. 253,, Criminal P.C. but at the hearing of the appeal of the other accused persons the High Court directed that he should be examined as a witness and after his examination as a witness attempts were made to prosecute him, and their Lordships held that it would be contrary to the traditions of justice in criminal cases to prosecute him after he had given his evidence. In the present case the petitioner was never an accused in the previous case and when he gave his evidence there could not have been any misapprehension in his mind that he was giving evidence in a case in which he was made an accused and subsequently discharged. Therefore the facts of that case arc distinguishable from the facts of the present case. The case of A.K. Mookerji v. Emperor, 1919 Cal 1021 = 45 IC 999 = 19 CrLJ 663 = 45 Cal 720 is an authority for the proposition that when accused persons are tried separately, each one, though implicated in some offence is a competent witness at the trial of the other.

The next point that has been urged by Mr. De is on the merits of the case and he admits that the evidence against the petitioner is not such as to warrant his conviction. Dealing with this point I would first refer to the conviction under S. 468. The lower appellate Court has held that there is no evidence to establish that the money-orders were written by Chandra Shekhar and also that there is no direct evidence to show that Chandra Shekhar actually affixed the facsimile of the signature of the Chairman on the money-order forms in question; but he holds on the strength of Chandra Shekhar''s own evidence in the previous case and the circumstances of the present case, that there was no room for doubt that he had also put the facsimile signature of the Chairman on the money-order forms mentioned in the charge. This by itself would not make him guilty under S. 468. If he actually wrote on the money-orders himself the name of the person to whom money was to be really sent and he put the facsimile signatures on them, he has not committed forgery for the purpose of cheating. The money-orders which form the subject-matter of the charge have been found to have been written by Dhirnath Jha himself and there is "no evidence that the facsimile signatures on those money-orders were put by the present petitioner. I would therefore set aside his conviction under S. 468, The learned Assistant Government Advocate also does not feel justified in supporting his conviction on the materials pointed out by the learned Sessions Judge.

Then as regards the charges under Ss. 420/12013 and 420/109, Penal Code, the lower appellate Court has based his conviction upon the following facts: that the facsimile signature of the Chairman of the Local Board used to be affixed to the money-order forms by the petitioner. At the same time the evidence is that the facsimile signature of the Chairman was accessible to every one working the Local Board Office. Then comes the statement of Dhirnath Jha who was examined as a witness while undergoing a sentence of imprisonment under Ss. 467. 468 and 420/120B. Mis evidence implicating Chaudry Shekhar must be received with a good deal of caution and needs material corroboration before any conviction can be based thereon. The lower appellate Court has said that Dhirnath was in a better position than an ordinary accomplice who deposes in a case in the hope of getting pardon or with some other motive, as there is nothing to gain by making a false statement because he was undergoing a long term of imprisonment. But apparently the lower appellate Court has failed to take into consideration the fact that Dhirnath must have had an animus against the petitioner because the petitioner deposed as a prosecution witness when Dhirnath was being tried for the offence which I have already mentioned. (After examining the evidence, his Lordship proceeded). In my opinion, therefore in the circumstances of the case the evidence falls short of the standard which would bring the guilt home to the accused. I would therefore give the accused benefit of the doubt, set aside his conviction and sentences under S. 420/120B as well as S. 420/109 Penal Code. The fine, if paid, will be refunded.

Agarwala, J.

I agree to the order.