Durga Das Mundhra vs The State

H.R. Khanna, J.—This judgment would dispose of three revision-petitions Nos. 125-D, 13o-D and 174-D of 1962 filed respectively by Durga Dass Mundhra, Sardari Lal Sabharwal and Madan Mohan Kochar, hereinafter referred to as Mundhra, Sabharwal and Kochar against the order of learned Additional Sessions Judge, Delhi.

The three petitioners were challenged by Special Police Establishment for offences punishable u/s 120-B read with sections 467, 471 and 420, Indian Penal Code, and also under sections 467, 467/ 471 and 420, Indian Penal Code. Shri J. C. Aggarwal, Magistrate First Class, Delhi, in whose Court the commitment proceedings took place, discharged Mundhra and Sabharwal accused and ordered that a charge be framed u/s 467, Indian Penal Code, against Kochar accused and he be committed to stand his trial in the Court of Sessions. The State thereupon filed a revision petition in the Court of Sessions against the order of the Magistrate about the discharge of Mundhra and Sabharwal accused. Kochar filed a separate revision against the order committing him for trial to the Court of Sessions. The learned Additional Sessions Judge, Delhi, accepted the State revision and directed the Committing Magistrate to commit Mundhra and Sabharwal accused to the Court of Sessions for trial of offences which appeared to have committed by them according to the allegations of the prosecution. Revision-petition filed by Kochar was dismissed and it was directed that such other charges might also be added in addition to the charge u/s 467, Indian Penal Code, which appeared to have been committed by him in the light of observations made earlier.

The prosecution case is that Mundhra accused is the Finance Director of Messrs E. M. Allcock and Mohatta (Private) Limited of 19, British Indian Street, Calcutta. Sabharwal accused was the Import Assistant of that Company and used to deal with applications for import licenses. Kochar accused worked as an Assistant Controller of Imports and Exports in the office of the Chief Controller of Imports and Exports New Delhi, upto November 4, 1957 and thereafter he was posted to the Cash Branch of that office. This Branch had no concern with the issue of conversion of import licenses. An import license was granted to the above Company on its application for the import of certain tractors, tractor service tools, tractor attachments and spare parts of the total value of Rs. 6,88,515/, On an application dated September 10,1957, submitted under the signatures of E. M. Allcock, Managing Director of the above Company, to the Chief Controller of Imports and Exports for conversion of the import license, the Company was permitted to import component parts of wireless reception instruments and apparatus for rupees one lakh, gambler for Rs. 20,000/ and giant motor cycles for Rs. 25,000/- in place of some items of goods entered in the original license. An endorsement about this conversion of the import license was made on the license on October 15, 1957, under the signatures of Kochar accused who dealt with those cases on that date. It is alleged that after October, 1955, the three accused entered into a criminal conspiracy between themselves, and a forged and unauthorized endorsement was got signed from Kochar accused on the copies of the above import license permitting a second conversion of the license for the import of Hydrosulphite of Soda, Rangolite C. Formaldehyde or Formosul and Sodium Nitrate of a total value of Rs. 1,25,000/. The copies, on which the above endorsement about the second conversion was made, were those meant for customs purposes and exchange control purposes. The endorsement about the second conversion was dated December 25, 1957. According to the prosecution case, the above endorsement was unauthorized because no application had been received in the office of the Chief Controller of Imports and Exports for the second conversion and no order for that conversion had been made. Kochar accused could also not make that endorsement because he was in those days posted in the Cash Branch and had got no concern with the issue or conversion of import license. Date December 25, 1957, on the endorsement of the above conversion was also wrong because the office of Chief Controller of Imports and Exports was closed on that date on account of Christmas holiday. The endorsement could also not have been made on that day because the copy of the import license meant for customs purposes was lying in the office of the Calcutta Customs during the days between December 24, 1957 and December 26, 1957, and as such it was not possible to make endorsement dated December 25, 1957, in the office of the Chief Controller of Imports and Exports, New Delhi.

It is further alleged that near about May, 1953 before the arrival of the goods covered by the second conversion Sabharwal arranged with B. N. Mehta, Proprietor of Messrs. B. H. Mehta and Company, Bombay, for forward sale of goods to be imported against the second conversion of the import licence. Direct negotiations were then carried on between Mundhra and Mehta for that purpose and an arrangement was entered into between the parties for the sale of the goods covered by the second conversion. When the chemical goods arrived it was brought to the notice of the authorities concerned that the goods had been imported against forged endorsement. Some of the goods had been released by that time but the goods, which had not been delivered, were seized. On a report dated March 20, 1953, made by Shri D. R. Sundaram, Director (Administration; of the office of the Chief Controller of Imports and Exports, New Delhi, a case was registered and after investigation by the Special Police Establishment the three accused were challenged.

As an offence u/s 467, Indian Penal Code, was one of the offences for which the accused were challenged and as an offence u/s 467, Indian Penal Code, is exclusively tribal by the Court of Sessions, commitment proceedings took place in the Court of Sheri J. C. Aggarwal, Magistrate First Class, Delhi. Since the case rested on circumstantial, evidence no witnesses were produced and the question of commitment was decided by reference to documents mentioned in section 173 of the Code of Criminal Procedure. The learned Magistrate thereafter discharged Mundhra and Sabharwal accused and committed Kochar accused but in revision before the Court of Session the order of learned Magistrate in so far as it related to the discharge of Mundhra and Sabharwal was set aside and all the three accused were ordered to be committed to the Court of Session as stated earlier.

In revision in this Court it has been argued by Mr. Chari and Mr. Frank Anthony on behalf of Mundhra and Sabharwal accused respectively that the learned Additional Sessions Judge was not justified in setting aside the order of the Committing Magistrate about the discharge of those two accused. On behalf of Kochar accused it has been contended by Mr. Johar that he too should not have been committed to the Court of Session. The revision-petitions have been opposed by Messrs Khanna and Mehta on behalf of the State, and after hearing the learned counsel I am of the view that there is no merit in any of the revision-petitions.

Section 207-A of the Code of Criminal Procedure deals with procedure to be adopted by the Committing Magistrate in cases instituted on police report, while sections 208 and 209 of the Code deal with procedure to be followed in cases instituted otherwise than on police report.

According to sub-section (1) of section 209, a Magistrate should discharge an accused if on consideration of the evidence recorded u/s 20 i and examination, if necessary, of the accused, the Magistrate finds "that there are not sufficient grounds for committing the accused person for trial." Sub-section (6) of section 207-A deals with discharge of accused in cases instituted on police report and reads as under:

When the evidence referred to in sub-section (4) has been taken and the Magistrate has considered all the documents referred to section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.

Keeping the two provisions, i.e. sub section (1) of section 209 and subsection (6) of section 207-A, together, it would follow that while in cases instituted otherwise than on police report the Committing Magistrate is to make an order of the discharge if there are not sufficient grounds for committing the accused for trial, in cases instituted on police report the order of discharge can only be made if the evidence and documents disclose no ground for committing the accused person for trial. Although the general principles to be borne in mind for discharging the accused persons by a Committing Magistrate must by far and large be the same, the difference in the phraseology of sub-section (6) of section 207-A and sub-section (1) of section 209 of the Code would indicate that in cases instituted on police report the reasons impelling discharge of the accused must be stronger compared to those which would weigh if the accused is discharged in a case instituted otherwise than on police report. If there be, in a case instituted on the police report, some prima facie material on the basis of which a person may be sent up for trial to the Court of Sessions the Committing Magistrate, in my opinion, would not be justified in weighing and appraising the evidence furnished by that material or in going into its credibility or sufficiency with a view to determine whether it would be good and adequate enough to base a conviction, because in doing so he would be arrogating to himself a function which essentially belongs to the Court of Sessions. It would also, on principle, make no difference to the application of the above rule against the encroachment on the domain of the Court of Session by Committing Magistrate, whether the case is based upon the statements of eye-witnesses of circumstantial evidence. I may in this context refer to case Bipat Gope Vs. State of Bihar, wherein while dealing with section 207-A and 209 of the Code it was observed as under:

The words of the two sections are not the same, and it is possible to say that the force of the two sections is also not the same, and that section 209 gives a power to enter upon the merits of a case in a manner which section 207-A does not warrant. Whether the change of the language is deliberate or due to the fact that different draftsman drafted the two sections, the test for discharging the accused must, in a large way, be the same under both the sections, and it is hardly necessary to decide the full ambit of section 207-A, and contrast it with that of section 209. If there is any indication in the language, it is altogether on the side that the Magistrate must find a stronger case for discharging an accused u/s 207A than u/s 209. But, whatever the meaning of the two expressions, neither of them invests the Magistrate with the jurisdiction to decide the case, as if the Sessions trial was before him. To this extent, Mr. Sarjoo Prasad fairly concedes, section 207A (6) cannot be carried. Put in other words, the section can only mean that if there is a prima facie case tribal by the Court of Session, the Magistrate must commit the accused to the Court of Session to stand his trial." It was further observed....

In our opinion, whatever the jurisdiction conferred by sub-section (6) section 207A, it does not entitle a Magistrate to try the case on his own, and forestall the decision of the Court of Session, and this is what the Magistrate, in fact, did here. We, therefore, agree that the order of discharge passed by him was in excess of his jurisdiction.

Coming to the facts of the present case I may state that it has not been disputed before me that the impugned entry on the license was unauthorized and forged. The second conversion was not authorized because no order for the second conservation had been made by any authorized person. The date of the entry viz., December 25, 1957, was also wrong because on that date the entry could not be made as on that date the office of the Chief Controller of Imports and Exports was closed because of Christmas holiday and also because the copy meant for customs purposes of the import license was lying in the customs office at Calcutta on that day. The controversy in revision has mainly centered about the point as to whether the three accused were parties to the conspiracy to the forging of the entry in question, and whether Mundhra and Sabharwal used the forged document knowing it to be forged.

So far as Mundhra accused is concerned, the material on record shows that he was the Finance Director of the Company and during the days in question he was in charge of the affairs of the Company at Calcutta because Mr. Allcock had shifted prior to that from Calcutta to Patiala. It was Mundhra accused who opened the letter of credit for the import of the chemicals covered by the second conversion and it was he again who conducted the negotiations with Mehta for the sale of the aforesaid chemicals. Letter dated September 14, 1958, sent by Mundhra to M/s. B. H. Mehta and Company while agreeing to sell the chemicals covered by the second conversion contained a clause which was to the following effect:

It is an express condition of this agreement that in case of arrival of goods at Indian Ports, clearance is not allowed by the Customs authorities and/or any penalty or fine or confiscation of the goods is ordered by the Customs, such penalties and fine shall be to your account and we shall be recovered (?) by the port authorities Further, that in the event of such a penalty, fine or confiscation you will not be entitled to claim for any refund of the advance and/or payment made by you towards the cost of the goods.

Mr. Khanna on behalf of the State contends that the material on record also as the above clause in the letter point to the fact that Mundhra was aware that the above deal about the chemicals covered by the second conversion was not a straight forward transaction. It is also argued that some money must have passed from the funds of the Company for getting the endorsement of the unauthorized second conversion and as Mundhra was the Finance Director he must have become aware of that.

In my opinion, it is not necessary to express any opinion at this stage on the contentions raised, but I have no doubt in my mind that there is a prima facie material which merits trial and the Committing Magistrate acted wholly beyond his jurisdiction in making an order for discharge of Mundhra in the face of the material placed on record.

So far as Sabharwal accused is concerned, the allegation against him is that he was the Import Assistant of the Company and used to deal with applications for import licences. He took delivery of license after the first conversion. It was Sabharwal who introduced Mehta for the sale of chemicals which were to be imported on the basis of the second conversion. Sabharwal also made applications to the customs office for the release of chemical goods. Sabharwal used to deal with applications for import licenses. He obviously had contacts with the officials of the Chief Controller of Imports and Exports, and it is urged on behalf of the State that the impugned endorsement from Kochar was got procured through the instrumentality of Sabharwal. In my opinion, there is prima facie material justifying Sabharwal accused being sent on trial.

So far as Kochar accused is concerned, there are the statements of a number of witnesses that the endorsement in question relating to the second conversion had been signed by Kochar. We have also the material on record that on December 25, 1957 Kochar could not make the impugned endorsement as long before that he had been transferred to the Cash Branch. I, therefore, am of the view that the material on record justified the commitment of Kochar accused for trial in the Court of Session.

The three revision-petitions, accordingly, fail and are dismissed.