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1962 SCC OnLine SC 100 : 1963 Supp (2) SCR 338 : AIR 1963 SC
1620 : (1964) 1 SCJ 364 : 1963 Cri LJ 529
In the Supreme Court of India
(BEFORE K. SUBBA RAO AND RAGHUBAR DAYAL, JJ.)
Criminal Appeals Nos. 113 and 114 of 1961
BANWARILAL JHUNJHUNWALA AND OTHERS, (IN
CRIMINAL APPEAL NO. 113 OF 1961) V.A.
THOMSON … Appellants;
Versus
UNION OF INDIA AND ANOTHER … Respondents.
And
Criminal Appeal No. 190 of 1961
UNION OF INDIA … Appellant;
Versus
BANWARILAL JHUNJHUNWALA AND OTHERS …
Respondents.
Criminal Appeals Nos. 113, 114 and 190 of 1961* , decided on
November 21, 1962
Advocates who appeared in this case:
J.C. Bhatt, Advocate and J.B. Dadachanji, O.C. Mathur and Ravinder
Narain, Advocates of J.B. Dadachanji and Co., for the Appellants (In
Criminal Appeal No. 113 of 1961) and Respondents 1 to 4 (In Criminal
Appeal No. 190 of 1961);
K.R. Chaudhuri, Advocate, for the Appellant (In Criminal Appeal No.
114 of 1961) and Respondent 5 (In Criminal Appeal No. 190 of 1961);
H.R. Khanna and R.H. Dhebar, Advocates, for the Respondents (In
Criminal Appeals Nos. 113 and 114 of 1961) and Appellant (In Criminal
Appeal No. 190 of 1961).
The Judgment of the Court was delivered by
RAGHUBAR DAYAL, J.— These three appeal, by special leave, arise out
of a criminal case pending in the Court of the Special Judge, Poona,
against the appellants in Criminal Appeals Nos. 113 and 114.
2. Banwari Lal Jhunjhunwala and Champalal Jhunjhunwala,
Appellants 1 and 2 in Criminal Appeal No. 113 of 1961, are partners in
a Firm named Shreeram Ramniranjan. The other two appellants, I.R.
Oza and Gajraj Tiwari are the employees of the Firm. V.A. Thomson,
appellant in Criminal Appeal 114 of 1961, was Assistant Works Manager
(Timber Inspection), Central Railways, Matunga, Bombay, at the
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relevant time.
3. The aforesaid firm entered into a contract with the Director
General of Supplies and Disposals, New Delhi, in 1955, for the supply of
1306.5 tons of bottom boards for railway wagons of certain specified
varieties of hard wood, to the Central Railway Administration. The total
cost for the entire supply was Rs 3,99,556-8-0. The wood was to be
supplied at three places in different quantities. 630 tons were to be
consigned to the District Controller of Stores, CWE, Matunga, Bombay,
26-½ tons wore to be supplied to the Assistant Controller of Stores,
Lallaguda and 650 tons were to be supplied to the Assistant Controller
of Stores, Jhansi. Prior to the supply, the wood was to be inspected by
the Chief Engineer (Sleeper Passing Branch), Southern Railway,
Madras, or an officer acting for him, and the places of inspection were
Kallayi, Mangalore and Vallapatnam. The first and the last of the places
were in the Kerala State. The payments were to be made by the Pay &
Accounts Officer, Ministry of Works, Housing and Supply, New Delhi.
The procedure to be followed in obtaining the payment was as follows:
4. Immediately after despatch, the Contractor could submit his bill
and claim 90% of the price. Along with the bill he had to attach the
first copy of the inspection note. The balance viz. 10% of the price, was
paid later when two further copies of the inspection note and certain
other documents had to be submitted.
5. Subsequent to the acceptance of the tender, the District
Controller of Stores, Central Railways, CWE Depot. Matunga, was also
added as the Inspection Authority and Inspection Officer, for the wood
to be supplied to DCOS Matunga. Still later, the Chief Mechanical
Engineer, Central Railways, Bombay was made the Inspection Authority
and the Assistant Works Manager, Timber Inspection C.W.E. Central
Railways, Matunga, Bombay, was named as the Inspecting Officer. The
places of inspection were also changed to Bombay, Calicut and
Baliapatam. The period of contract was also extended and the total cost
of wood to be supplied was Rs 4,08,741.
6. The prosecution allegation is that the wood actually supplied was
of inferior quality, that Thomson and other officers issued false
inspection notes certifying the quality of the wood to be per
specification and on the basis of these false inspection notes the
aforesaid Firm received payment of Rs 3,77,771 from the Pay and
Accounts Officer in the Ministry of Works, Housing and Supply,
Government of India.
7. The case against the accused appellants was first sent up to the
Court of the Special Judge in Kerala. He framed six charges against the
accused. Charge 1 was framed against all the accused and was for an
offence under Section 120-B IPC. Charge 2 was against the two
partners of the Firm for an offence under Section 420 IPC Charges 3
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and 4 were against the two employee-appellants, for an offence under
Section 420 read with Section 109 IPC. Charge 5. for a similar offence
was against Thomson. Charge 6 was against Thomson for an offence
under Section 5(1)(d) read with Section 5(2) of the Prevention of
Corruption Act. The second charge for the offence under Section 420
IPC was with respect to the Firm obtaining Rs 1,41,309 for the supply
of 521 tons of timber. Charge no. 6 stated that Thomson abused his
position as a public servant and obtained for the partner-appellants, on
behalf of the Firm, pecuniary advantage.
8. This Court transferred the case from the Court of the Special
Judge, Kerala, to the Court of the Special Judge, Poona. The Special
Judge, Poona, amended, the charges and also added a 7th charge
against the four appellants connected with the firm or abetting
Thomson in his committing the offence under Section 5(1)(d) read with
Section 5(2) of the Prevention of Corruption Act. Charge 2 was
amended to the effect that the amended charge referred to the supply
of the entire quantity of wood i.e. 1306-½ tons of wood and to the
receipt of Rs 3,77,771. Charge 6 was amended, inter alia, to the effect
that Thomson, by abusing his position as public servant obtained
advantage for himself from the partners of the firm. The accused-
appellants went in revision to the High Court of Bombay and questioned
the legality or propriety of the various charges. The High Court ordered
certain minor modifications in the charges, with which we are not
concerned and restricted Charge 2 to the supply of 521 tons of wood
and to the receipt of Rs 1,41,309 in accordance with the charge
originally framed by the Special Judge, Kerala, as the Kerala Court did
not have jurisidiction to try the offence committed in respect of the
supply of wood to places outside its jurisdiction.
9. The Union of India has filed Criminal Appeal No. 190 of 1961
against the High Court's order restricting the Charge 2 to the supply of
521 tons of wood and to the receipt of Rs 1,41,309 odd.
10. The relevant part of the main charge of conspiracy against all the
accused may now be quoted:
“That you all between July 1955 and September 1956 at Bombay
Baliapatam, Cannanore, Calicut, Ferok, Kallayi … entered into
conspiracy, by agreeing among yourselves, … to commit illegal acts,
and/or acts by illegal means, to wit, to supply in fulfilment of the
contract … ‘bottom boards’ in inferior jungle wood and not in the
species of Aine, Kalpine Haldu, as agreed to supply as per contract
and tender, referred to above to have the said bottom boards,
fraudulently passed by Accused 5, by abusing his position as public
servant by corrupt and illegal means to get false inspection notes
and certificates from Accused 5 and others to the effect that the
bottom boards were of the species of Aine, Kalpine and Haldu as per
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species and specifications detailed in the said contract, when to your
knowledge they were not, but were of inferior jungle wood and which
inspection notes and certificates were issued by Accused 5 by
abusing his position as public servant by corrupt and illegal means
to obtain pecuniary advantage for himself and for others i.e. Accused
1 and 2; to induce the Assistant Pay and Accounts Officer in the
Ministry of Works, Housing and Supply … to part with a sum of Rs
3,77,771 as value thereof, by claiming in bills, supported with
inspection notes … which acts amount to ‘offence punishable under
Sections 420/109 of the Indian Penal Code and Section 5(2) of the
Prevention of Corruption Act, 1947, and thereby committed an
offence punishable under Section 120-B of the Indian Penal Code….”
It is contended for the appellants in Appeal No. 113 of 1961 that the
obtaining of money by submitting each separate bill amounted to one
distinct offence for which a separate charge should have been framed in
view of Section 233 of the Code of Criminal Procedure and that the
charge as framed is a combination of a number of charges with respect
to several offences of cheating committed by obtaining money on the
presentation of eighteen or nineteen bills and was therefore against the
provisions of Section 233 of the Code. It is also contended that the
charge for cheating should have been framed against that particular
accused who had submitted the bill and obtained money. The High
Court considered these objections and held that a schedule giving the
details of each item of cheating would sufficiently meet the
requirements of law and that bills were presumably signed by the Firm
just as the forwarding letters were and that therefore both the partners
could be properly charged for the offence of cheating.
11. The cheating was in pursuance of the conspiracy entered into
between the various accused. The salient features of the conspiracy
were that in pursuance of the contract for the supply of 1306½ tons of
specified wood, inferior wood supplied and that for the success of the
scheme false inspection certificates were obtained from the Inspecting
Officers and that such false inspection notes should accompany the bills
purporting to be for the supply of wood per specifications. The object of
the conspiracy was to obtain the full contract price from the
Government on supplying material inferior in quality from that
undertaken to be supplied under the contract. Naturally, the entire
supply could not be made at the same time even if it was to be made
at one place. Actually the supply was to be made at three places. The
wood inspected at a particular place of inspection could be distributed
to the various places of supply. The bills could be for the supply made
at the particular time by the Firm to one place along or to places more
than one. It is therefore obvious that, the conspiracy entered into by
the appellants was not for obtaining diverse amounts by cheating but
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to obtain the entire contract money by cheating. This circumstance
justifies the conclusion that the offence of cheating contemplated by
the conspirators was one offence and that was of obtaining, by
cheating, the full amount due under the contract for the material
supplied. The charge framed for the offence under Section 420 does not
contravene Section 233 of the Code.
12. There is another way of looking at the same question. The
obtaining of money for each bill supported by false inspection note,
amounted to the offence of cheating in pursuance of the conspiracy. All
such individual offences, on the basis of the various bills, were of the
same kind as the single offence of obtaining the total amount as a
result of the presentation of the various bills and in view of Section 71
IPC, the accused could not be punished for more than one of such
offences it being provided that “‘where anything which is an offence is
made up of parts any of which’ is itself an offence, the offender shall
not be punished for more than one such offence unless it be so
expressly provided”. Illustration (a) explains this provision and is:
“A gives Z fifty strokes with a stick. Here A may have committed
the offence of voluntarily causing hurt to Z by the whole beating,
and also by each of the blows which make up the whole beating. If A
were liable to punishment for every blow, he might be imprisoned for
fifty years, one for each blow. But he is liable only to one
punishment for the whole beating.”
It is to be noted that the whole beating is considered to constitute one
offence while each of the blows also amounted to the offence of
voluntarily causing hurt. It can be said therefore, that while the
obtaining of money by cheating on the presentation of an individual bill
did constitute the offence of cheating the obtaining of the entire money
in pursuance of the terms of the single contract and the single
conspiracy entered into also constituted the offence of cheating. When
the accused could not be punished with the punishment for more than
one such offence, it cannot be the intention of law that the accused be
charged with each of the offences which were in a way included in the
complete offence made up by the entire course of conduct of the
accused in pursuance of the conspiracy.
Section 233 Cr PC reads:
“For every distinct offence of which any person is accused there
shall be a separate charge, and every such charge shall be tried
separately, except in the cases mentioned in Sections 234, 235, 236
and 239.”
The expression “every distinct offence” must have a different content
from the expressions “every offence” or “each offence”. A separate
charge is required for every distinct offence and not necessarily for each
separate offence.
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13. The question is, what is meant, by “every distinct offence”?
“Distinct” means “not identical”. It stresses characteristics that
distinguish while the word ‘separate’ would stress the “two things not
being the same”. Two offences would be distinct if they be not in any
way inter-related. If there be some inter-relation, there would be no
distinctness and it would depend on the circumstances of the case in
which the offences were committed whether there be separate charges
for those offences or not.
14. Such a view has been the basis of certain decisions by the High
Courts and this Court.
In Chunnoo v. State1 Kidwai, J. said at p. 797:
“The use of word ‘distinct’ is of great significance and the
legislature having inserted it, we must, so far as possible, give it a
meaning and not treat it as redundant. Every distinct offence cannot
be treated as having the same meaning as ‘every offence’. The only
meaning that the word ‘distinct’ can have in the context in which it
occurs is to indicate that there should be no connection between the
various acts which give rise to criminal liability. If there is such a
connection, one action is not ‘distinct’ from other actions and each of
them, even if it constitutes an offence, does not constitute a
‘distinct’ offence.”
15. In Bhagat Singh v. State2 a person hit two others with a single
shot from his gun. Fazl Ali, J., said at p. 375:
“The word ‘offence’ has been defined in the Criminal Procedure
Code as meaning ‘any act or omission made punishable by any law
for the time being in force’. There seems to be nothing wrong in law
to regard the single act of firing by the appellant as one offence only.
On the other hand, we think that it would be taking an extremely
narrow and artificial view to split it into two offences. There are
several reported cases in which a similar view has been taken and, in
our opinion, they have not been incorrectly decided.”
We refer to these cases later. It was further stated at p. 376:
“In Sudheendra Kumar Ray v. Emperor3 a person who was chased by two
constables had fired at them several times, but it seems to have been rightly
assumed that the firing did not constitute more than one offence, though the point
was not specifically raised or decided.”
16. In Empress v. Raghu Rai4 the accused was convicted of stealing
two bullocks by one act of theft. It was held that the offence committed
was one. The rationale of the decision could be nothing but that the
entire transaction of stealing or the entire action leading to the theft of
the bullocks was one act and therefore constituted one offence
irrespective of the fact that more than one bullock was stolen.
17. In Poonit Singh v. Madho Bhot5 a person's furnishing the police
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with false information against two persons was held to result in one
offence under Section 182 IPC, as the false statement he had made
was one though the information conveyed by the statement related to
two persons.
18. In Johan Subarna v. King Emperor6 a person, who asked the
villagers to pay certain amount per head for signing their parchas was
held to have committed one offence of cheating as he did not ask each
individual villager, but spoke to them in a body and the contention that
he had made as many attempts to obtain money as there were villagers
from whom he had sought remuneration was not accepted. In this case
it is clear that the accused's act aimed at obtaining money from all the
villagers whom he addressed and that act in its entirety was held to
constitute one offence even though his asking the villagers in a body
could be said to amount to his asking each individual villager for the
money and thus to constitute as many offences as there were villagers
whom he asked.
19. In Promotha Natha Ray v. King Emperor7 one charge was framed
under Section 406 IPC, with respect to dealing with several books of
accounts. It was held that the books formed one set of account books of
the estate, were found together in two locked boxes the keys being
with the appellant, and that therefore they may be fairly regarded as
one item of property with which the appellant was dealing in one
particular way. It was not accepted that a separate offence was
committed with respect to each of the books.
20. We therefore hold that a single charge for the offence of cheating
in the circumstances of the case, does not contravene the provisions of
Section 233 of the Code.
21. This view also disposes of the other objection with respect to
Charge 2, it being that with respect to the cheating constituted by the
obtaining of money on each bill, only that partner should have been
charged for that offence who had actually signed that bill. Both the
partners conspired to cheat the Government. The bills were, as held by
the High Court, presumably presented on behalf of the Firm and
therefore both the partners would be responsible for the obtaining of
the money on the presentation of each bill. The charge therefore does
not suffer from any defect on this account.
22. The main contention in the appeal by Thomson is that the
Special Judge, Poona, was not competent to amend the Charge 6 to the
effect that Thomson, by abusing his position as a public servant, had
obtained pecuniary advantage for himself, as the sanction given for the
prosecution of Thomson did not state that he had abused his position
for his personal gain. We do not wish to express any opinion on the
merits of this contention as it is still open to the prosecution to lead
evidence to the effect that the sanction given for the prosecution was
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based on facts which referred to his obtaining money for himself. It
may also be open to the prosecution to urge that it is a matter of
inference from the alleged conduct of Thomson that he obtained benefit
for himself. Suffice it to say that the trial of Thomson for the charge as
framed at present is not illegal.
23. It has been held by this Court in Purushottam Das Dalmia v.
State of West Bengal8 and L.N. Mukherjee v. State of Madras9 that a
Court trying an accused for an offence of conspiracy is competent to try
him for all offences committed in pursuance of that conspiracy
irrespective of the fact that any or all the other offences were not
committed within its territorial jurisdiction. The Special Judge, Poona,
could try the appellants with respect to the offence of cheating and
abetment thereof in connection with the supply of wood to places
outside Kerala, and for the obtaining of the price of that wood. The
Charge 2 as framed by the Special Judge is correct. The order of the
High Court restricting the charge to the obtaining of Rs 1,41,309 only
for the supply of 521 tons of wood is wrong.
24. In the result, we dismiss Criminal Appeals Nos. 113 and 114 and
allow Appeal 190 of 1961.
———
*
Appeals by Special Leave from the Judgment and Order dated 16th June, 1961 of the
Bombay High Court in Criminal Revision Applications Nos. 305 and 345 of 1961
1 AIR (1954) All 795
2 1951 SCC 1203 : (1952) SCR 371
3
ILR 60 Cal 643
4
(1881) AWN 154
5 ILR 13 Cal 270
6
(10) CWN 520
7
17 CWN 478
8 (1962) 2 SCR 101
9
(1962) 2 SCR 116
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