Rajeswar Prasad Sukla vs The State

Sen, J.—This is an appeal from the order of Shri A. Syam, Presidency Magistrate of Calcutta, convicting the Appellant Rajeswar Prosad Sukla u/s 420 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for nine months and to pay a fine of Rs. 500, in default, to suffer rigorous imprisonment for three months more.

The prosecution case was briefly as follows. On May 31, 1954, accused Jagadananda and another person went to the show room of Messrs. India Linoleum, Ltd., at 7, Chowringhee Road and told the Manager Basudeb Purohit that they were representatives of the firm Bikaner Traders and that the firm Bikaner Traders wanted to purchase 12 rolls of Linoleum; they selected the stuff and paid Rs. 50 in advance and the price was settled at Rs. 2,117-10. It was agreed that the balance of the price would be paid on delivery of the stuff at the premises of Messrs. Bikaner Traders at 8B, Lallbazar Street on June 1, 1954. As the parties were not known to one another before, there was this arrangement for cash on delivery. Basudeb Purohit accordingly prepared the challans and bills and went to deliver the stuff at 8B, Lallbazar Street on the next day, that is, June 1, 1954. Accused R.P. Sukla was present at the time in the firm and he, as well as one Mukherjee, who gave himself out as the Manager of Bikaner Traders, and Jagadananda, stated that there was shortage of cash at the shop at the time and asked Basudeb Purohit to accept a crossed cheque for the balance of the price, namely, Rs. 2,067-10. After some persuasion Basudeb Purohit accepted the cheque and delivered the goods. The cheque was presented in the bank in due course, but it was dishonoured and it was found that at the time R.P. Sukla had only Rs. 12 at his credit at the bank. Basudeb Purohit accordingly went to the shop of Bikaner Traders at 8B, Lallbazar Street for several days in succession. R.P. Sukla promised to satisfy the outstanding amount by June 9,1954, but on June 9, 1954 it was found that there was nobody in the office except the darwan. Thereafter Basudeb Purohit could not contact either R.P. Sukla or his Manager or any other officer of the firm of Bikaner Traders. He reported to his superiors and a complaint was lodged before the Deputy Commissioner, Detective Department, on June 11, 1954, by P.W. 7 B.L. Maheswari, who was the Sales Manager of Messrs. India Linoleum, Ltd. and an officer above Basudeb Purohit.

The police took up the investigation and submitted charge-sheet against R.P. Sukla, B.R. Mukherjee and Jagadananda Sinha. Some other persons were also arrested in the course of the investigation, but they were discharged. B.R. Mukherjee was present during the trial of the case when four of the prosecution witnesses were examined-in-chief. Thereafter he failed to be present on the ground of illness. The case was taken up in respect of the remaining accused, namely, R.P. Sukla and Jagadananda Sinha and the case of B.R. Mukherjee was separated. The learned Magistrate after completing the hearing of the case gave the benefit of doubt to Jagadananda Sinha and acquitted him. He, however, found that the case was proved against R.P. Sukla, the proprietor of Bikaner Traders and convicted and sentenced him as stated above.

The defence taken by the accused was that he did not purchase the stuff but gave the cheque in question to a broker S. Ghosh through his Manager B.R. Mukherjee as security for the payment of the price by the broker S. Ghosh and that he did not make any representation and did not cheat Basudeb Purohit or his firm, the Indian Linoleum. The same defence is repeated in the appeal, and in addition Mr. Roy Chowdhury appearing for the Appellant has urged that the trial was vitiated by some legal defects. The first defect pointed out by Mr. Roy Chowdhury is that no formal charge u/s 420 of the Indian Penal Code or u/s 420/34 of the Indian Penal Code was framed by the learned Magistrate. The learned Presidency Magistrate only noted the facts constituting the charge in the summary form as follows:

Accused No. 1 R.P. Sukla and No. 5 J.C. Sinha are charged u/s 420, alternatively u/s 420/34, I.P.C., for cheating P.W. 2 in respect of linoleum worth Rs. 2,117-10.

Mr. Roy Chowdhury has pointed that in this case the learned Magistrate imposed an appealable sentence and therefore Section 362(4) of the Code of Criminal Procedure would apply and it was, therefore, necessary that the learned Magistrate should have framed a formal charge, because it is only when that the learned Magistrate does not propose to pass an appealable sentence that it becomes unnecessary for him to frame a formal charge. In this case what was recorded by the learned Magistrate in the summary sheet was clearly not a formal charge, but only a precis of the fact constituting the charge was noted and moreover the manner in which Basudeb Purohit was deceived was not noted. Mr. Roy Chowdhury has referred to Section 223 Illustration (b) and has urged that the manner in which the cheating was alleged to have been done must be noted in the formal charge against the accused. It is quite true that the learned Magistrate should have framed a formal charge and should have noted the manner in which Basudeb Purohit or the Indian Linoleum, Ltd. was alleged to have been cheated. The learned Magistrate purported to frame the charge, vide his order, dated December 17, 1954, but did not frame a formal charge. Now for the failure to frame a formal charge or for any defect in framing a formal charge the trial is not necessarily vitiated. It is vitiated only when it appears that the accused was in fact prejudiced by such failure to frame a formal charge or defect in the formal charge. This is provided by Section 232 of the Code of Criminal Procedure which runs as follows:

If any Appellate Court, or the High Court in the exercise of its powers of revision or of its powers under Chapter XXVII, is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be had upon a charge framed in whatever manner it thinks fit.

When, however, the Appellate Court, or the High Court is of the opinion that the person in fact was not misled, the conviction shall not be set aside. This is clear by inference from the terms of Section 232 of the Code of Criminal Procedure and is laid down in more express terms in Section 535 of the Code which provides that no finding or sentence shall be deemed to be invalid merely on the ground that no charge was framed unless in the opinion of the Court of appeal or revision, a failure of justice has, in fact been occasioned thereby. Mr. Roy Chowdhury has urged that whether the accused was in fact misled by the defect in the charge is a question of fact which it is difficult to determine and that the presumption should be in favour of the accused. The Code, however, does indicate when the Appellate Court or the High Court should consider that the accused was in fact misled by the omission to frame a charge or by a material error in the charge. Reference may be made to Section 225 of the Code of Criminal Procedure, Illustrations (b) and (c). The present case is similar to the case set out in Illustration (b) of Section 225 of the Code of Criminal Procedure because there is only one act of cheating alleged against the Appellant and he defended himself in respect of the charge and gave his own account of the transaction in the written statement filed by him. Accordingly, it must be held that the accused was not in this case actually misled by the omission of the learned Presidency Magistrate to frame a formal charge and to set out the manner of cheating in the summary charge framed by him. This point, therefore, must be found against the Appellant.

The next defect urged by Mr. Roy Chowdhury is that originally the charge was framed u/s 420 and alternatively u/s 420/114 of the Indian Penal Code, and that on December 17, 1954, the learned Magistrate altered the charge u/s 420/114 to one u/s 420/34 of the Indian Penal Code, and it does not appear from the order-sheet that the amended charge was read out to the accused and his plea taken thereon. It is true that order-sheet of December 17, 1954 refers only to the alteration of the charge u/s 420/114 to Section 420/34. This point was not, however, taken in the grounds of appeal and no explanation of the learned Magistrate could be taken on the point. Even assuming that the amended charge was not read out to the accused it must be held that no prejudice was caused to the accused, because the result of the amendment was the cancellation of the alternative charge u/s 420/114. There was a charge already framed against the two accused u/s 420 which had been read out and explained to the accused on December 1, 1954. The charge u/s 420/34 which was substituted for the charge u/s 420/114 is practically the same charge as a charge u/s 420 simpliciter against the two accused and in fact the accused was convicted u/s 420 of the Indian Penal Code. In the circumstances it cannot be held that the accused was prejudiced by the omission of the learned Magistrate to read out the amended charge, if indeed there was such omission.

Next Mr. Roy Chowdhury has urged on the facts, that in view of the case set out in the petition of complaint to the Deputy Commissioner, Detective Department, it could not be held that the Appellant R.P. Sukla had made a representation that the cheque which he was offering was as good as cash which is at present the main evidence against R.P. Sukla according to Mr. Roy Chowdhury. The petition of complaint which was sent by B.L. Maheswari is ex. 7. In para. 1 it was set out that R.P. Sukla, the sole proprietor of the Bikaner Traders had ordered through his agent 12 rolls of Linoleum for delivery at their office on the following day. Paragraph 2 sets out that the goods were delivered on June 1, 1954, and that instead of cash which the party said they were unable to give a cheque for Rs. 2,067-10 was given. Paragraph 3 sets out that the cheque was dishonoured and that when representatives of the India Linoleum approached the accused party, that is, the proprietor and officers of Bikaner Traders, they expressed regret and promised to pay cash on June 9, 1954, but on June 9, 1954 nobody was found in the office. It was not set out in the petition of complaint that R.P. Sukla had made a representation when tendering the cheque for Rs. 2,067-10 that the cheque was as good as cash. On the point that R.P. Sukla had made such a representation, there is the evidence only of P.W. 2, Basudeb Purohit. P.W. 2 stated that P.W. 6, Chitta Prosanna Dhar, was also with him at the time when the goods were delivered, but P.W. 6 did not depose on that point. He merely stated that on June 1, 1954, P.W. 2, Basudeb Purohit, took the stuff in his lorry for delivery. He did not say that he himself accompanied the lorry and went with Basudeb Purohit for delivery. In the circumstances it has been urged by Mr. Roy Chowdhury that the evidence of Basudeb Purohit that R.P. Sukla stated that his cheque was as good as cash must be regarded as an embellishment in order to implicate the accused R.P. Sukla and should not be accepted. It is true that this particular item of evidence given by Basudeb Purohit is not corroborated by any other witness and no such express representation is mentioned in the original petition of complaint. Even if, however, no reliance is placed on that particular representation, in other words, if it is held that no such express representation was made by R.P. Sukla, the fact remains that R.P. Sukla was present at his office and he was the sole proprietor of Bikaner Traders and that he tendered the cheque for Rs. 2,067-10 i,s the price of the goods of which his firm was taking delivery. Even apart from any representation the fact of drawing up a cheque and tendering the same in payment of goods purchased implies three statements, according to Kanwar Sain v. Crown ILR (1938) Lah. 662, namely, that the drawer has an account with the bank in question; that he had authority to draw on it for the amount shown on the cheque, and that the cheque, as drawn, is a valid order for the payment of that amount or that in the ordinary course of events the cheque, on future presentation, will be honoured. It does not imply any representation that the drawer already has money in the bank to the amount shown in the cheque, for he may either have authority to overdraw, or have an honest intention of paying in the necessary money before the cheque can be presented. What it implies is representation that the drawer intends to have sufficient money in his account when the cheque is presented in the course of business. The giving of a cheque in payment of goods must be distinguished from the giving of a post-dated cheque. It has been held that the giving of a post-dated cheque implies a promise to pay in future and when the promise is broken it ia not a criminal offence. But if a person gives a current cheque in course of business in payment for goods and if it is dishonoured and from the circumstances it can be inferred that he must have been aware when the cheque was given that it would be dishonoured so that the failure to make payment is not accidental, it must be held that the goods are obtained by false misrepresentation and the accused is guilty u/s 420. Reference may be made in this connection to the case of Kunwar Sen v. King Emperor I.L.R (1932) Luck. 286. In the present case even if it is assumed that no express representation was made by R.P. Sukla that the cheque was as good as cash, the fact remains that Basudeb Purohit was told when the order was given on May 31, 1954 that the price of the goods would be paid in cash when the delivery would be made; and there is a further fact that when Basudeb Purohit went with 12 rolls of Linoleum there was representation made that the firm of Bikaner Traders was unable to pay in cash not having money at the shop at the time, and that therefore they tendered a cheque. This fact was mentioned even in the petition of complaint to the Deputy Commissioner, Detective Department. There is the conduct that at the time the accused R.P. Sukla had only Rs. 12 in his bank account and no arrangement had been made to cover the cheque when presented; and the subsequent conduct that on June 7, when Basudeb Purohit went back to the shop after the cheque had been dishonoured R.P. Sukla and his assistants promised to pay the full amount in cash on the 9th, but on the 9th they were all absent from the shop and could not be traced thereafter. It must be inferred from the circumstances that when the cheque was given and delivery of the goods taken in lieu thereof R.P. Sukla had the intention to obtain the goods by fraud and misrepresentation and therefore committed the offence u/s 420 of the Indian Penal Code.

Mr. Roy Chowdhury has also pointed out that B.R. Mukherjee the Manager of the firm Bikaner Traders was not ultimately proceeded against by the learned Magistrate; the learned Magistrate when he convicted the accused R.P. Sukla and acquitted the accused Jagadananda observed that B.R. Mukherjee was an employee of the accused R.P. Sukla and no charge was proved against him and therefore he was discharged. Mr. Roy Chowdhury has pointed out that the subsequent dealing with the goods delivered at 8B, Lallbazar Street was made by B.R. Mukherjee according to the evidence in the case. Thus there was the evidence of P.W. 12 Gopinath Chatterjee, an employee of Messrs. Kemo and Co., that firm purchased 12 rolls of Linoleum from B.R. Mukherjee who gave himself out as a Manager of Oudh Industries and that delivery was given at their godown at 35A, Raja Nabakrishna Street. That transaction was effected by B.R. Mukherjee on the same date as the goods were delivered at 8B Lallbazar Street, namely, on June 1, 1954. From this Mr. Roy Chowdhury urged that B.R. Mukherjee was the real culprit and that he should have been proceeded against and not R.P. Sukla. We may agree that B.R. Mukherjee must also be a guilty party, but we cannot agree that R.P. Sukla who was the proprietor of Bikaner Traders was innocent. There remains the fact that he gave the cheque when the goods were delivered. From the written statement it appears that it was represented to him that the goods had been purchased from Messrs. India Linoleum Ltd. in the name of his firm, that is, Bikaner Traders. He, no doubt, stated that the purchase had been made by another party, namely, the broker S. Ghosh and that the cheque was given by him only as a security, but this explanation cannot be accepted. A natural view must be taken of the fact, namely, that the goods had been purchased by the Bikaner Traders themselves and that R.P. Sukla as owner thereof and as the party who had made out the cheque and given it could not be held to be innocent. It is to be noted that to Basudeb Purohit there was no suggestion made about the broker Ghosh, and that the name of Ghosh did not even transpire when the accused was examined u/s 342 at the end of the prosecution case. There R.P. Sukla stated that he gave the cheque to B.R. Mukherjee in connection with another business, but he did not specify the nature of the business. It was in the written statement filed nearly four weeks thereafter that R.P. Sukla gave out the story that the purchase was really made by another broker, S. Ghosh, who had made use of the name of the firm Bikaner Traders and that the cheque was given to him as security. We have already stated that the story cannot be accepted and we must hold that the charge u/s 420 of the Indian Penal Code was sufficiently proved against the Appellant R.P. Sukla.

This appeal therefore fails and is dismissed.

Mitter J.

I agree.