Neki Ram vs The State of Haryana

Muni Lal Verma, J.—The appellant and Amar Singh, who is appellant in Appeal No. 1168 of 1970, were convicted by the learned Additional Sessions Judge, Karnal, under sections 406, 467 read with section 34, and u/s 120-B, Indian Penal Code, and were sentenced--

(a) u/s 406 read with section 34, Indian Penal Code to 2 years'' rigorous imprisonment each

(b) u/s 467 read with section 34, Indian Penal Code, to 4 years'' rigorous imprisonment with a fine of Rs. 4000/- each, in default the defaulter to further suffer rigorous imprisonment for 2 years;

(c) u/s 120-B, Indian Penal Code, to 3 years'' rigorous imprisonment;

with the direction that all the substantive sentences of imprisonment would run concurrently.

The prosecution case, in brief, is that there was Songal Cooperative Agricultural Farming Service Society (hereinafter called the Society) in village-Songal. In the year 1964, Puran Singh was the President, the appellant was the cashier, Zile Singh was Secretary and Amar Singh was one of the members of the Society. The appellant and Amar Singh were fast friends. The appellant was running a depot in his house for the supply of sugar, kerosene oil and fertilizers and had been distributing the same to the villagers. A decision was taken by the Society that a loan of Rs. 10,000/- be raised from the Kaithal Branch of the Central Cooperative Bank, Karnal, (hereinafter called the Bank) for distribution of the same to its members. On March 28, 1964, the appellant accompanied by Amar Singh went to the Bank, carrying the necessary application for loan (Exhibit P.K.) bond (Exhibit P.H.) balance sheet (Exhibit P.Q.) and demand list (Exhibit P.R.) and on the basis of the said documents the appellant obtained the amount of Rs. 10,000/- as loan from the Bank on behalf of and for the society. Amar Singh attested the payment voucher.

Once again, the Society resolved to raise a loan of Rs. 4,000/- from the Dank for distribution of the same to its members. Therefore, on April 22, 1964, the appellant approached the Bank with documents, including application for loan (Exhibit P.L.) bond (Exhibit P.J.) and list of demand (Exhibit P. V.) and on the basis of the said documents, he obtained the loan of Rs. 4,000/- for and on behalf of the Society. The aforesaid amounts of loan (i.e., Rs. 14,000/-) were, however, not distributed or paid to the members of the Society and whenever they made enquiries about the same from the appellant and Amar Singh, both of them had been representing that the said loans had not yet been withdrawn from the Bank. Whenever the villagers, including the members of the Society, had been visiting the depot of the appellant for obtaining sugar etc., the appellant, Amar Singh and sometime Zile Singh (since acquitted) too, had been obtaining their thumb impressions and signatures on papers, representing that the same were applications for supply of sugar etc., or for increase of the quota of the same When the loanees, shown in the record of the Society, defaulted in repaying the loans, Shri Balbir Singh, Inspector of Cooperative Societies, went to village-Songal and summoned them. On May 28, and 29, 1966, on enquiry he learnt from them that no loan had been advanced or received by them from the Society. Amar Singh admitted before him that he owed the amount of Rs. 14,000/- to the Society and he would be depositing the same in the Bank. Shri Balbir Singh reported the matter to the Assistant Registrar, Cooperative Societies, Kaithal, who forwarded the same to the Police, as a consequence of which a case under sections 467, 458, 409, 466, 471 and 120-B, Indian Penal Code, was registered at Police Station, Pundri. After necessary investigation, the said Police sent up the appellant, Amar Singh and Zile Singh for the offences under the aforesaid sections, and the learned Magistrate committed them to the Court of Session, Karnal, to stand trial for the offences under sections 409, 467 read with section 34 and section 471, Indian Penal Code. At the trial, they were also charged u/s 120-B, Indian Penal Code. The appellant, Amar Singh and Zile Singh denied to have misappropriated any amount. The learned Additional Sessions Judge accepting the prosecution case as against the appellant and Amar Singh, convicted and sentenced them, as stated above. He, however, doubted the participation of Zile Singh in the crime and acquitted him. Aggrieved by their convictions and sentences, the appellant and Amar Singh have preferred separate appeals. Since both these appeals have arisen out of one case, the same are being disposed of by one judgment.

Shri M.L. Nanda, the learned counsel for the appellant, and Shri Ram Rang, the learned counsel for Amar Singh, challenged the judgment of the learned Additional Sessions Judge with the contentions that the evidence present on record was not sufficient to prove the offences for which they had been convicted and their trial suffered from the infirmity of misjoinder of charges.

The facts, that in the years 1964, Puran Singh was the President the appellant was the cashier and Amar Singh was one of the members of the Society, that on March 28, 1964, the appellant obtained Rs. 10, 000/- as loan from the Bank for and on behalf of the Society and Amar Singh had then accompanied him to the Bank and was pesent when the said amoant was paid to him, and that once again the appellant had obtained on April 22, 1964, Rs. 4000/- as loan for and on behalf of the Society, are amply proved on record and are admitted.

There is sufficient evidence, and it was admitted by the appellant in answer to question No. 16 in his statement u/s 342, Criminal Procedure Code, that no amount, except Rs. 500/- which had been advanced to Kali Ram, who is his (the appellant''s) brother, had been distributed as loan to any member of the Society. It is, thus, apparent that the appellant had obtained the amount of Rs. 14,000/-for and on behalf of the Society. The expression "being in any manner entrusted with property, or with any dominion over property", occurring in section 405, Indian Penal Code, connotes that the accused holds the property for and on behalf of another. He would be entrusted with property, including money, when he receives it from another otherwise than for or on account of himself. Admittedly, the amount of Rs. 14,000/- was of the Society There fore, as soon as the appellant received the said amount of Rs. 10,000/- and Rs. 4,000/- from the Bank for and on behalf of the Society, he was entrusted with it within the contemplation of section 405, Indian Penal Code. He did not pay it to the Society. As indicated above, it is proved, and it is also admitted by the appellant, that no sum out of the aforesaid amount of Rs: 14,000/- except a small sum of Rs. 500/- which had been paid to Kali Ram, had been advanced as loan to the members of the Society. The explanation given by the appellant is that he had paid the amounts of Rs. 10,000/- and Rs. 4000/- to Amar Singh immediately when he received the same from the Bank. He did not produce any evidence and there is no material on the record to support the aforesaid explanation put forward by him. The appellant was the cashier and he received the aforesaid amount of Rs. 14,000/- in that capacity for and on behalf of the Society. So, it was his duty and he was obliged to see that the said amount reached the Society and the same was accounted for in the books of the Society. He failed therein. Dishonest misappropriation or conversion can be proved not only by direct evidence but by circumstantial evidence as well. When a property is entrusted to a person, it is his duty to give a true account of what he has done with it. If he fails to pass on the property to the person for and on behalf of whom he has received, or to account for it, or gives an account which is incredible, it is ordinarily legitimate and reasonable to infer that he has criminally misappropriated or dishonestly converted it to his own use. The facts that the appellant did not care to see that the amount of Rs. 14,000/- received by him for and on behalf of the Society, reached it (the Society) and the explanation given by him that he had paid the said amount to Amar Singh is not proved and sounds incredible, coupled with the circumstance that he had forged some documents showing the advance of some amounts out of Rs. 14,000/- as loan, constitute decisive evidence to prove that the appellant had mis-appropriated the aforesaid amount. In the circumstances of the case, to be discussed hereunder, it would also be legitimate to infer that he had allowed Amar Singh to misappropriate a part of the said amount. So, I unhesitatingly find that the evidence and circumstances of the case conclusively establish the offence of criminal breach of trust against the appellant and he can be rightly held guilty for that offence u/s 406, Indian Penal Code.

Shri T.P. Garg, (P.W. 16), Judicial Magistrate, stated, and the appellant admitted, that specimen of his (the appellant''s) thumb-impressions were obtained on February 10, 1967. He further proved the signatures of Shri Arjan Singh, Judicial Magistrate, on Exhibit P. 24, which bore the specimen thumb-impressions of Amar Singh. The specimen thumb-impressions appearing on Exhibit P. 24, were attested to be of Amar Singh by Shri Arjan Singh and the same bore his (Shri Arjan Singh''s) signatures. The statement of Shri T.P. Garg was allowed to go unchalledged. A.S.I. Gursharan Dass (P.W. 29) testified that he had identified all the persons whose thumb-impressions had been obtained by the Judicial Magistrate at Kaithal. Exhibit P. 24 contains an endorsement in the hand of Gursharan Dass that he had identified Amar Singh son of Dattu, and it bears the certificate under the signature of Arjan Singh, Judicial Magistrate, that he (Amar Singh) had been so identified before him by A.S.I. Gursharan Dass. It is, therefore, apparent that Exhibit P. 24 bore the specimen thum-impressions of Amar Singh, who is appellant in the connected appeal. There is evidence, and it is not disputed, that the aforesaid specimen thumb-impressions of the appellant and Amar Singh and the relevant record of the Society, including register (Ex. P.B.) containing applications, bonds etc., allered to lave been furnished by the loanees for obtaining loans, had been sent to the Finger Print Bureau, Phillaur. Shri Tarlochan Singh (P.W. 17), who is Finger Print Expert from the said Bureau, after due examination and comparison of disputed thumb-impressions with the aforesaid specimen thumb-impressions, testified that thumb-impression (marked F. 1) purporting to be of Kura Ram, appearing on loin application at page 87 of the relevant register (Exhibit P.B.) tallied with the specimen of right thumb-impression of the appellant, any that the thumb impression (marked M/12) purporting to be of Kapura appearing as an attesting witness on the bond respecting advance of loan of Rs. 500/- to Sadhu Ram on the reverse side of page 85 in the aforesaid register (Exhibit P.B.), and thumb-impression (Marked M/15) purporting to be of Kapura on the reverse of Joan application at page 88 in the said register (Exhibit P B) corresponded with the specimen of left thumb-impression of the appellant. He further maintained that thumb impression (marked D. 1) purporting to be of Jita Ram as one of the sureties appearing on the reverse of loan application at page 68 in the aforesaid register (Exhibit PB) corresponded with the specimen of right thumb-impression of Amar Singh, and thumb-impression (marked C/l) purporting to be off Faqir Chand as the other surety on the reverse of application at page 68 in the said register, tallied with the specimen of left thumb-impression of Amar Singh, and that the thumb-impression (marked Q. 52) purporting to be of Puran Singh as surety on the reverse side of loan application No. 80 in the aforesaid register (Exhibit PB) corresponded with the specimen of right thumb-impression of Amar Singh. The science of comparison J of thumb and finger prints is perfect and exact. The statement of Shri Tarlochan Singh respecting the identity of the aforesaid thumb-impressions could not be shaken during crossexamination. His statement on that matter is well supported by reasons given by him and it does not suffer from any infirmity, which could induce me to disbelieve him. It is, therefore, proved beyond any manner of doubt that the appellant had thumb-marked application for loan No. 87, referred to above, as Kura Ram and he thumb-marked the surety bonds appearing on the reverse of applications No. 85 and 88 as Kapura, the attesting witness of the same, and that Amar Singh had thumb-marked the surety bond appearing on application No. 68 for loan as Jita Ram and Faqir Chand sureties, and he had also thumb-marked the surety bond appearing on the reverse side of the application for loan No. 80 as Puran Singh surety. Having regard to the definitions of ''making a false document'', given in section 464, and of ''forgery'', given in section 463, Indian Penal Code, the making of apart of a document with intent to commit fraud or that fraud may be committed, constitutes forgery. Valuable security'', as is clear from its definition given in section 30, Indian Penal Code, denotes a document which is, or purports to be, a document whereby any legal right is created, or whereby any person acknowledges that he lies under legal liability. By thumb-marking as Kura, Ram on application No. 87, referred to above, the appellant had indisputably applied for the loan under false name. Kura (P.W. 11) had depesed that he had never put in any application for loan and no loan of Rs. 800/- had ever been obtained by him from the Society. It is, thus, proved conclusively, that the appellant had made false application No. 87, referred to above, for loan in the name of Kura, and he clearly committed forgery of the same. The said document purports to be valuable security as it asks for receipt of money So, the offence u/s 467, Indian Penal Code, is conclusively established against the appellant respecting the aforesaid application. Since he attested the surety bonds on reverse side of application 85 and on the reverse side of application 88, by putting his thumb-impression as Kapura, there cannot be any doubt that he had also committed forgery respecting attestation of the same falsely as Kapura and, as such, he is guilty of the offence punishable u/s 467, Indian Penal Code, in that respect. Amar Singh, as shown above, had thumb-marked surety bond on the reverse side of loan application appearing at page 68 as Jita Ram and Faqir Chand sureties and he had also thumb-marked the surety bond appearing on the reverse side of the loan application No. 80 as Puran Singh surety. So, he acknowledged the liability of sureties by thumb-marking the aforesaid surety bonds. That means that he had forged the aforesaid surety bonds and, as such the offence punishable u/s 467, Indian Penal Code, respecting the said forgeries, has also been conclusively established against him.

There is sufficient evidence, and it was admitted by Amar Singh, that he had accompanied the appellant to the Bank on March 28, 1964, and the amount of Rs. 10,000/- had been received by the appellant from the Bank in his presence. He had also attested the payment voucher in the Bank Nathu (P.W. 22), who was Vice-President of the Society at the relevant time, has deposed that he had enquired from the appellant as well as from Amar Singh as to whether the aforesaid amount of loan had been withdrawn from the Bank, but they had always been representing that the aforesaid amount had not been withdrawn. That was admittedly a lie. Puran Singh (P.W. 1), who was the President of the Society, too stated that whenever he had made enquiry from the appellant about the withdrawal of the amount of loans, totalling Rs. 14,000/-, from the Bank, he had represented, of course falsely, that the amount had not been withdrawn. Puran Singh (P.W. 1) as well as Balbir Singh (P.W. 26), Inspector Cooperative Societies, stated that Amar Singh had admitted before him (Balbir Singh) that he owed the entire amount of Rs. 14,000/- to the Society and that he would deposit the same in the Bank. There is absolutely nothing on record to show that the aforesaid witnesses had any motive or reason to make false statements against the appellant or Amar Singh. The trial Court accepted them as reliable witnesses and I see no reason to disbelieve them. Therefore, the circumstances that Amar Singh was with the appellant when the latter obtained the amount of Rs. 10,000/- from the Bank on March 28, 1964, and he knew fully well that the said amount had been withdrawn from the Bank by the appellant as loan for and on behalf of the Society, but still having that knowledge he misrepresented to Nathu, whenever, he asked about it from him, that the said amount had not been withdrawn as loan from the Bank, and that he admitted before Balbir Singh, Inspector Cooperative Societies, his liability that he owed the amount of Rs. 14,000/- to the Society and he promised to deposit the same in the Bank, lead to one inference and no other that he had associated himself with the appellant in misappropriating the amount of Rs. 14,000/-. So, the offence punishable u/s 406, read with section 34, Indian Penal Code, is also proved against him.

Since privacy and secrecy are the elements of criminal conspiracy, it is difficult to obtain direct evidence in its proof. It (the criminal conspiracy) can, therefore, be proved by evidence of surrounding circumstances and conduct of accused both before and after the alleged commission of the crime. As indicated above, the appellant and Amar Singh had both gone to the Bank on March 28, 1964, and the appellant received the loan of Rs. 10,000/- in presence of Amar Singh and the latter had attested the payment voucher. The appellant and Amar Singh kept the withdrawal of the said amount of loan from the Bank, for and on behalf of the Society, a secret and had been misrepresenting, whenever enquiries were made from them in that respect, that the said amount had not been withdrawn from the Bank. Puran Singh (P.W. 1) maintained, and the appellant admitted, that Amar Singh was his (the appellant''s) fast friend. Darya (P.W. 3) and Telu (P.W. 9) have deposed that the appellant and Amar Singh had been obtaining thumb-impressions and signatures of the members of the Society and the other villagers on certain documents on the false pretext that the said documents were respecting the supply of sugar, kerosene oil and fertilizer. The other witnesses, viz., Soran (P.W.2), Ram Sarup (P.W.4), Ram Dia (P.W.5), Sadhu (P.W.6), Munshi (P.W.7), Ram Kishan (P.W.8), Hari Chand (P.W.10) and Rai Singh (P.W. 15) too maintained that the appellant had been obtaining the thumb-impressions of villagers on certain documents on the false pretext, referred to above. As discussed in para 6 above, the appellant had committed forgery respecting the loan application No. 87 and also respecting the attestation of surety bonds appearing on reverse sides of loan applications No. 85 and 88, and that Amar Singh too committed forgery respecting the surety bond appearing on reverse side of loan application No. 68, and the surety bond appearing on the reverse side of application No. 80. All these circumstances, when read together, point out unmistakably that the appellant and Amar Singh had agreed to embezzle the amount and to make false documents for misappropriating the amount belonging to the Society. Therefore, on the evidence present on the record, unhesitatingly find that the offence of criminal conspiracy, punishable u/s 120-B, Indian Penal Code, is also established against the appellant and Amar Singh.

Section 233 of the Code of Criminal Procedure (applicable at at the relevant time and hereinafter called the Code) requires that for every distinct offence of which any person is accused there shall be a separate charge, and that every such charge shall be tried separately. But that is a general rule and sections 234, 235, 236 and 239 provide exceptions to the said rule. The object to these exceptions is to avoid necessity of the same witness giving the same evidence two or three times over in different trials and to join in one trial those offences with regard to which the evidence would overlap. The exceptions contained in sections 234, 235 and 236 of the Code apply to cases where one person may be dealt with at one trial for more than one offence, while section 239 applies to the trial of more persons than one jointly. The criterion for the joinder of charges is the accusation and not the ultimate result of the trial. The expression "lame transaction" occurring in clauses (a) and (d) of section 239 has not been defined in the Code. The real and substantial test for determining whether several offences are connected together, so as to form one transaction, depends upon whether they are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, as to constitute one continuous action. Whether these offences are so connected as to form parts of the same transaction depends largely upon the circumstances of each case and is a question of fact. Where there is a conspiracy having a definite object in view and several offences are committed in pursuance of such conspiracy, the severa offences will generally form the part of same transaction. ''Misjoinder of charges'' include misjoinder of offences or of accused persons. After amendment of section 537 of the Code by the Code of Criminal Procedure Amendment Act, 1955, its new clause (b) includes "misjoinder of charges" and that expression clearly noudes "misjoinder of offences" or of the accused persons. Therefore, no conviction or sentence passed by a competent Court can be reversed on account of any error or irregularity on account of misjoinder of charges, unless it has occasioned a failure of justice, " Failure of justice " would mean that there is no fair trial and just decision of the case. Since the accusation against the appellant and Amar Singh was that they were party to a criminal conspiracy, the purpose or object of which was to embezzle the amount of the Society and to commit forgery, and in pursuance of that purpose they committed the said offences, viz, misappropriation of money and forgery, both of them could be legally tried jointly for the offences for which they were charged, because all those offences would be taken to form as part of the same transaction. I am supported in this view by the judgment of the Supreme Court in Kadiri Kuahahammad v. The State of Madras AIR 1968 SC 661. Further, as indicated above, the accused were charged for the offences of misappropriation and forgery as well, as criminal conspiracy. So, they fully knew the offences for which they were tried and which they had to meet. So, they had a fair trial and nothing has been shown to me that there had not been just decision of the case. In that view of the matter, it cannot be maintained that the misjoinder of charges, if it is assumed for the sake of argument that there was any, has, in fact, occasioned a failure of justice. In the position of law, discussed above, the contention of the learned counsel for the appellant and Amar Singh, that the offence of forgery, for which they have been held guilty, cannot be said to be the same transaction, and the said offence and the offence of misappropriation, for which they have been found guilty, cannot be said to be of the same kind and, as such, there has been misjoinder of charges, is wholly untenable.

The offence of criminal conspiracy is a separte offence punishable separately from the main offence. Therefore, there can be no illegality in recording separate convictions and awarding separate convictions and awarding separate sentences for the offence of criminal conspiracy and the offences committed in pursuance thereof. I find support in this view from the judgment of Supreme Court in Mohd. Hussain Umar Kocher etc. v. K.S Dalipsinghji AIR 1970 SC 43.

It, thus, follows from the discussion above that the record bears ample testimony in proof of the offences for which the appellant and Amar Singh have been convicted and their trial and conviction arc valid in law. So, their is no merit in the contentions advanced by the learned counsel for the appellant and Amar Singh and I repel the same, In the last, it has been urged that the sentences awarded to the appellant and Amar Singh are excessive. In view of the circumstance that the offences committed by the appellant and Amar Singh relate to the year 1964, and they have been sentenced to 2 years'' rigorous imprisonment for the offence of criminal breach of trust I feel that the sentences awarded to them for offences punishable u/s 467 read with section (sic) and u/s 120-B, Indian Penal Code, are excessive, and I think that 2 years rigorous imprisonment with a fine of Rs. 4,000/-, each, for the offence punishable u/s 467 read with section 34, and sentence of 2 years, rigorous imprisonment, each, for the offence punishable u/s 120-B, Indian Penal Code, would suffice. The sentence of 2 years'' rigorous imprisonment u/s 406 read with section 34, Indian Penal Code, is not excessive and there is no scope for its reduction.

Consequently, I maintain the convictions of the appellant and Amar Singh, and I also maintain the sentence of 2 years'' rigorous imprisonment, each, awarded to them u/s 406 read with section 34, Indian Penal Code. I, however, reduce the sentence of 4 years, rigorous imprisonment, each, awarded to them u/s 467 read with section 34, Indian Penal Code, So 2 years'' rigorous imprisonment, each, maintaining the sentence of fine as well as the sentence to be suffered by them in default thereof, and I reduce the sentence awarded to them for the offence u/s 120-B, Indian Penal Code, to 2 years'' rigorous imprisonment, each. The direction that all the afore- said sentences would run concurrently is maintained. This appeal as well as appeal No. 1168 of 1970 fails except to the extent of reduction in the sentences stated above. The appellant and Amar Singh shall surrender to their bails for undergoing the unserved sentences of imprisonment.