Chaudhury Chandra Narain Jha vs Emperor

Varma, J.—The petitioner Chaudhury Chandra Narain Jha was convicted on three counts by a Magistrate of Darbhanga and sentenced under each of those counts as follows : In Case No. 397 of 1939, for having attempted to cheat Sonelal Gupta, he has been awarded a sentence of one year''s rigorous imprisonment with a fine of Rs. 150, in default three months'' rigorous imprisonment; in Case No. 428 of 1939, which is in connexion with the cheating of Ramdhani Mahto Pasi, he has been sentenced to six months'' rigorous imprisonment with a fine of Rs. 150, in. default three months'' rigorous imprisonment; and in Case No. 429 of 1939 which is connected with Misri Sahni, he has been given the same sentence as in Case No. 428 of 1939.

The sentences of imprisonment are to run concurrently with the result that he has got a sentence of one year''s rigorous imprisonment with a fine of Rs. 450 in all. The original sentences of fine were more, but it is the modified sentences on appeal, that I have mentioned just now.

The case for the prosecution is that on 25th May 1939 Inspector Rajbali Thakur, on receipt of some information from a spy that gold mohurs were being faked with the object of cheating the public, arranged to have a test purchase. He gave the spy Rs. 20 and received a faked gold mohur which is an exhibit in this case.

On receiving some further information on 5th June 1939 he deputed the senior Town Sub-Inspector to search the house of one Rambilas Mahto who is an electroplater. Sonelal Gupta who was the victim in Case No. 397 of 1939 was deputed to act as a decoy. Sonelal Gupta went with the spy with a marked ten-rupee note. He came and gave certain information to the police office. The police went to a sweetmeat shop known as the Prabhas Cabin and surrounded the shop.

The petitioner who was there was searched and the marked note, four faked gold mohurs and one silver coin which if electroplated with gold would have looked like a gold mohur were recovered from him. On his own statement the Inspector drew up a first information report. The house of Rambilas was then searched and certain articles connected with electroplating were recovered. Now, these searches had the effect of rousing the curiosity of at least two other persons who had dealt with the petitioner. One was Ramdhani Pasi whd had purchased a gold mohur from the petitioner and the other was Misri Sahni.

Ramdhani Pasi, on hearing of these searches, gob the gold mohur which he had purchased from the petitioner, tested by one goldsmith Sitarama Sonar and found that the gold mohur was faked. He went and lodged an information before the police and in his own information he mentioned the name of Misri Sahni, and the latter also made a statement and produced the gold mohur which was found to be faked.

Later on, in the course of the investigation, a test identification was held and on 21st June 1939, in that test identification Ramdhani and Misri both picked out the present petitioner. After conviction the petitioner went in appeal. The lower Appellate Court modified the conviction connected with the case of Sonelal Gupta from u/s 420 to one under Sections 420/511, I.P.C., and as I have just now said he reduced the sentence of fine. The petitioner has now come in revision before us.

Mr. Yunus, appearing on behalf of the petitioner, has urged that the charge framed in this case is improper and it offends against the provisions of Section 233, Criminal P.C. This point was urged before the lower Appellate Court. In order to appreciate this point I would quote the charge which runs as follows:

I, Muhammad Usman, Magistrate, First Class, hereby charge you Choudhury Chandra Narain J ha alias Kandhaiyaji as follows:

That you on or about 9th May and 5th June 1939 at Mahalla Mm laganj and Laheria Sarai cheated Ramdhani Mahton Pasi, Misri Sahni and Sonelal Gupta (P.Ws.) by dishonestly inducing them to deliver cash Rs. 50 to you on account of the price of two faked gold mohurs passed as genuine and also on account of advance for four similar gold mohurs. The said Rs. 50 was the property of the said three witnesses and thereby committed an offence punishable u/s 420, I.P.C., and within my cognizance.

Looking at this charge it is clear that the three cases of cheating have been lumped together in one charge. Even the sum of money advanced by the victims of the offences of cheating have been lumped together, although it was Rs. 20 in the case ''of Ramdhani, Rs. 20 in the case of Misri and Rs. 10 in the case of Sonelal.

The question is whether the irregularity in the charge has prejudiced the petitioner before us. The law on this point has been clearly laid down by their Lordships of the Judicial Committee in AIR 1938 130 (Privy Council) . There were two appellants in that case and they were charged with offences under the Electricity Act. Appellant 1, Babulal Choukhani, was convicted of theft of electricity. His conviction by the Magistrate for conspiracy was quashed on appeal by the High Court. Appellant 2 was convicted of aiding and abetting appellant 1, the conviction given against him for conspiracy being likewise quashed. The charges framed against both the appellants, jointly with the other accused were as follows:

That you between January 1934 and 20th January 1935, at 2 and 2-1 Chittaranjan Avenue (Bharat Lakshmi Picture House), Jupiter Cinema, 66-2 Beadon Street, Sealdah Hotel, 225 Harrison Road and other places in Calcutta, Howrah and 24-Par-ganas, along with Krishna Chandra Shome, Bhola Nath Ohatterji, Hardwar Singh, Aswini Kumar Panja, Nanilal Ghose alias Noni Mistri, Putu, Mohammad Abdul Azim and Bhudeb Chandra Seth, and others were parties to a criminal conspiracy to commit theft (dishonest consumption or user) of electric energy belonging to the Calcutta Electric Supply Corporation Limited by tampering with meters at the premises of the consumers and that in pursuance of the said conspiracy, theft of electric energy was in fact committed at Bharat Laxmi Picture House, Jupiter Cinema, and other places and thereby committed an offence punishable u/s 120-B, I.P.C., read with Section 39, Electricity Act and Section 379, I.P.C., and within the cognizance of this Court.

Appellant 1, Babulal Choukhani, alone was further charged as follows:

That you between April 1934 and 16th January 1935, at Bharat Laxmi Picture House, situate at 2 and 2-1 Chittaranjan Avenue, Police Station Jorasbanko, Calcutta, committed theft (by dishonest consumption or user) of electric energy belonging to the Calcutta Electric Supply Corporation Limited and thereby committed an offence punishable u/s 89, Electricity Act (9 of 1910) read with Section 379, I.P.C., and within the cognizance: of this Court.

Appellant 2 alone was further charged as follows:

That you between April 1934 and 16th January 1935, at Bharat Lakshmi Picture House, abetted Babulal Choukhani in the commission of the offence of theft (by dishonest consumption or user) of electric energy belonging to the Calcutta Electric Supply Corporation Ltd., which offence was committed in consequence of your abetment and you have thereby committed an offence punishable u/s 109, I.P.C., read with Section 39, Electricity Act (9 of 1910) and Section 379,I.P.C., and within the cognizance of this Court.

The first point raised before their Lordships was in connexion with Section 239(d). Criminal P.C., but we are not concerned in this case with that provision of law. It was contended in that case that the charge of theft was not properly framed, because the charge as framed alleged a multiplicity of offences between April 1934 and January 1935 whereas the offence did not constitute a single continuing offence; they were separate offences committed on particular date and should have been separately charged. The Judicial Committee observed as follows:

Their Lordships feel that the form of the charge was most irregular and regrettable and one which should be avoided. But they cannot regard this objection as one which in the circumstances of this case should receive effect, especially because they agree with the High Court that no injustice was inflicted on the appellants. The specific offences of which they were accused were satisfactorily proved by competent evidence, corroborated in all necessary respects. There was no miscarriage of justice. In addition the irregularity was such as could be, and was cured u/s 225 and 537 by the finding that the accused had not been prejudiced.

In the case before us the lower Appellate Court has come to the conclusion that the case continued for a length of time and the witnesses were cross-examined elaborately on behalf of the accused, and, although the form of the charge was such as should be avoided, no prejudice was caused to the petitioner. I agree with the finding of the learned Judge that the petitioner has not been prejudiced by the defect in the charge. The second point urged by Mr. Yunus is that attempting to cheat Sonelal has not been made out, because there was no case of representation on the part of the petitioner which would bring the offence u/s 420. The learned Judge in the Court below has himself noticed that the first information in respect of that occurrence does not specify that the petitioner made any false representation to Sonelal to induce him to believe that the gold mohurs were genuine.

No doubt, towards the end of his examination-in-chief, Sonelal said that the accused made him believe that the gold mohurs (Exs. III to VI) were genuine and nothing was wrong with them; but his evidence on this point falls short of the mark. If misrepresentation had. to be proved, it would have been better to get the exact words used by the petitioner, and it must also be remembered that Sonelal himself was being used as a decoy by the police. The benefit of the discrepancies in the evidence of Sonelal must be given to the accused. I would therefore give the petitioner benefit of the doubt with regard to this charge and sot aside his conviction and the sentence passed on him u/s 420/511, I.P.C.

So far as the conviction u/s 420, I.P.C., connected with the other two prosecution witnesses, Ramdhani Pasi and Misri Sahni, is concerned, they are poor people and they came to inform the police on hearing of the searches carried on in the shop and of the person of the present petitioner. Their evidence has been accepted by both the Courts below. There is no reason to discard their evidence now. I would therefore uphold the conviction of the petitioner for cheating these two witnesses as well as his sentences passed in cases Nos. 428 and 429 of 1939. There is one other point which was raised by Mr. Yunus and that was that evidence, which was clearly inadmissible, has been brought upon the record.

Firstly, that the statements made by the spy, who was not examined, have been brought on the record through the Inspector; and secondly, certain statements by P.W. 16 were made in his cross-examination with regard to the statements made by him before the Sub-Inspector. The learned Judge has held that these statements were inadmissible, and he has based his conclusions on evidence other than these statements.

A special plea was raised on the question of sentence by Mr. Yunus on the ground that the petitioner comes of a respectable family and he is a young man of 18 years. Looking at the nature of the offence, it is only a person of some substance who can pass a fake mohur for a genuine one. No one would easily purchase even a genuine mohur from a poor man.

The offence is a serious one and I see no reason to interfere with the sentences connected with the cheating of Ramdhani Pasi and Misri Sahni. In the result the sentence of one year''s rigorous imprisonment with a fine of Rs. 150 for having attempted to cheat Sonelal Gupta will be set aside; but the sentence of six months'' rigorous imprisonment, with a fine of Rs. 150, in default three months'' rigorous imprisonment in each of the two cases, Nos. 428 and 429 of 1939, relating to the offences of cheating Ramdhani Pasi and Misri Sahni, will stand, the sentences to run concurrently.

Harries, C.J.

I agree.