Full Judgment Text
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PETITIONER:
CHANDI PRASAD SINGH
Vs.
RESPONDENT:
THE STATE OF UTTAR PRADESH.
DATE OF JUDGMENT:
07/12/1955
BENCH:
AIYYAR, T.L. VENKATARAMA
BENCH:
AIYYAR, T.L. VENKATARAMA
BOSE, VIVIAN
CITATION:
1956 AIR 149 1955 SCR (2)1035
ACT:
Trial before Sessions Judge for an offence under s. 409, I.
P. C. with the aid of assessors for misappropriating certain
sums of money from three different persons-Received by
appellant as Secretary of a Company-And for an offence under
s. 477-A, I.P.C. for falsifying a minute book-With the aid
of Jury-Same persons acting as assessors and jurors-Verdict
of not guilty in respect of both charges-Disagreement with
verdict of jury under s. 477-A and reference to the High
Court under s. 307 of the Code of Criminal Procedure-Dis-
agreement with the opinion of assessors under s. 409 and
conviction of accused-Appeal to the High Court-Appeal and
reference both heard together and disposed of by one
judgment by High Court-Sessions Judge whether contravened
any provision of law or committed illegality in acting as he
did-Appellant’s status-Whether that of a servant or that of
an agent-Servant and agent-Distinction between-Appellant
charged with three offences under s. 409, I.P.C. and one of-
fence under s. 477-A, I.P.C.-Whether contravention of s. 234
of the Code of Criminal Procedure-S. 235 of the Code of
Criminal Procedure-Applicability of.
HEADNOTE:
The appellant was tried by the Sessions Judge with the aid
of assessors for an offence under s. 409, I.P.C. for
misappropriating certain sums of money received as promoter
of a Company from three ,different persons for the purpose
of allotment of shares and omitted to be brought into the
Company after it was formed, and also for an offence under
s. 477-A, I.P.C. by the same Sessions Judge with the aid of
a jury for the offence of falsifying a minute book, the same
persons acting both as assessors and jurors. They returned
a verdict of not guilty in respect of both the charges. The
Sessions Judge, disagreeing with the verdict of the jury
under s. 477-A, referred the matter to the High Court under
s. 307 of the Code of Criminal Procedure. Disagreeing also
with the opinion of the assessors in respect of the charge
under s. 409, I.P.C. he held the appellant guilty and
sentenced him to 4 years’ rigorous imprisonment. Against
this conviction the appellant appealed to the High Court.
Both the reference under s. 307 of the Code of Criminal
Procedure and the appeal were heard together by the High
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Court which confirmed the appellant’s conviction under s.
409 and the sentence passed by the Sessions Judge and
disagreeing with the verdict of the jury it held him guilty
under s. 477-A and sentenced him to two years’ rigorous
imprisonment. On appeal by special leave to the Supreme
Court:-
Held (i) that the contention that when the Sessions Judge
disagreed with the verdict of the jury and the opinion of
the assessors,
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he should have referred the whole case under s. 307 of the
Code of Criminal Procedure to the High Court and not merely
that part of it which related to the charge under s. 477-A,
I.P.C. was without force because the Sessions Judge had
contravened no provision of law and committed no illegality
in deciding the case which related to the charge under s.
409, I.P.C. That s. 307, Code of Criminal Procedure applies
in terms only to trials by a jury and the Sessions Judge had
no power under that section to refer cases tried with the
aid of assessors for the decision of the High Court. In the
present case there was the further fact that both the appeal
against the conviction under s. 409, I.P.C. and the
reference under s. 307 of the Code of Criminal Procedure in
respect of the charge under s. 477-A were disposed of by the
same judgment;
(ii)that the contention that the appellant’s true status was
that of a servant and not that of an agent and that he
should have been tried not under s. 409, I.P.C. but under s.
408, I.P.C. was also without force inasmuch as his status
was that of an agent and not that of a servant in view of
his duties as Secretary of the Society. The distinction
between the two is this a servant acts under the direct
control and supervision of the master, and is bound to con-
form to all reasonable orders given to him in the course of
his work. An agent though bound to exercise his authority in
accordance with all lawful instructions which may be given
to him from time to time by his principal, is not subject in
its exercise to the direct control or supervision of the
principal;
(iii)that the contention that there had been violation of s.
234 of the Code of Criminal Procedure in that the appellant
had been charged with three offences under s. 409, I.P.C.
and one under s. 477-A was also without force as the case
was governed by s. 235 of the Code of Criminal Procedure as
the several offences under s. 409, I.P.C. and s. 477-A,
I.P.C. arose out of the same acts and formed part of the
same transaction.
Emperor v. Haria Dhobi, (A.I.R. 1937 Patna 662), Pachaimuthu
In re, ([1932] I.L.R. 55 Mad. 715), Emperor v. Lachman
Gangota, (A.I.R. 1934 Patna 424), Emperor v. Kalidas,
([1898] 8 Bom. L.R. 599), Emperor v. Vyankat Sing ([1907] 9
Bom. L.R. 1057) and Emperor v. Chanbasappa (A.I.R. 1932
Bom. 61), referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 150 of
1954.
On appeal by leave from the judgment and order dated the
23rd March 1954 of the Allahabad High Court (Lucknow Bench)
in Criminal Appeal No. 112 of 1953 connected with Criminal
Reference Register No. 15 of 1953 arising out of the
judgment and order dated the 24th February 1953 in Sessions
Trial No. 5 of 1952 of the Sessions Court at Lucknow.
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B, B. Tawakley, (K. P. Gupta and A. D. Mathur with him) for
the appellant.
S.P. Sinha (K. B. Asthana and C. P. Lal with him) for the
respondent.
1955. December 7. The Judgment of the Court was delivered
by
VENKATARAMA AYYAR J.-This is an appeal by special leave
against the judgment of the High Court of Allahabad
affirming the conviction of the appellant by the Sessions
Judge, Lucknow under sections 409 and 477-A of the Indian
Penal Code.
On 12-2-1949 a Society known as the Model Town Co-operative
Housing Society, Ltd., was registered under the provisions
of the Co-operative Societies Act (II of 1912), its object
being to acquire vacant sites in the town of Lucknow and to
allot them to its members so as to enable them to build
houses of their own. The appellant was the chief promoter
thereof, and collected monies from prospective shareholders
by way of share money. The first general body meeting of
the Society was held on 1-3-1949. At that meeting, the
appellant was elected Honorary Secretary and one Sri Munna
Lal Tewari as Treasurer. The latter having resigned, one S.
C. Varma was appointed Treasurer in his stead. On 22-4-
1949, there was a meeting of the Managing Committee, at
which the appellant was directed to band over the accounts
of the Society and its funds to its Treasurer. The ap-
pellant gave a list of 38 persons as members of the Society,
delivered cheques issued by 13 of them as their share money,
and paid a sum of Rs. 3,500 being the amount stated to have
been received by him from the other 25 members as share
money. The Society did not function thereafter.
On 16-7-1949 some of the members wrote a letter to the
Registrar of Co-operative Societies pointing out that the
Society had not functioned ever since its incorporation, and
asking that steps might be taken for examination of its
accounts and, if necessary, for its being wound up. On
this, there was an investigation of the affairs of the
Society by two Assistant
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Registrars, and on the basis of their reports dated 22-2-
1950 and 18-5-1950 the present prosecution was started
against the appellant charging him under sections 409 and
477-A of the Indian Penal Code. The charge under section
409 was that he had received a sum of Rs. 500 from one Sri
Chaturvedi, a sum of Rs. 100 from Dr. 0. P. Bhanti and
another sum of Rs. 100 from Dr. R. S. Seth, all as share
money in December 1948, and that he had misappropriated the
same. The charge under section 477-A was that on 22-4-1949
the appellant acting as the Secretary of the Society
falsified the minute book, Exhibit P-18, by omitting to show
therein the share money received from the three persons
above mentioned. The defence of the appellant was that the
three amounts aforesaid were paid to him not as prospective
Secretary for the purpose of allotment of shares, but were
deposited with him in his individual capacity for purchasing
shares, in case the Society worked well.
The trial of the offence under section 409 was held with the
aid of assessors and that under section 477-A with the aid
of a jury, the same persons acting both as assessors and
jurors, and they returned a verdict of not guilty with
reference to the charges under both the sections. The
Sessions Judge, disagreeing with the verdict of the jury
under section 477-A, referred the matter to the High Court
under section 307 of the Code of Criminal Procedure. He
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also disagreed with the opinion of the assessors with
reference to the charge under section 409, and held that the
appellant was guilty and sentenced him to four years’
rigorous imprisonment and a fine of Rs. 1,000,. Against
this conviction, the appellant preferred an appeal to the
High Court. Both the reference under section 3O7 and the
appeal were heard together by the High Court, which agreed
with the Sessions Judge that the appellant had received the
three amounts as share money and in his capacity as
Secretary, and accordingly confirmed his conviction under
section 409 and the sentence passed by the Sessions Judge.
Disagreeing with the verdict of the jury, it also held him
guilty under section 477-A and sentenced him to
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two years’ rigorous imprisonment. The present appeal by
special leave is directed against this judgment.
Mr. Tawakley firstly contended that the finding of the
courts below that the amounts paid by Sri Chaturvedi, Dr.
Bhanti and Dr. Seth were paid as share money was erroneous,
and in support of this contention relied on a letter written
by one of them, Dr. Seth, to the appellant on 3rd May 1951
(Ex. D-5) in which it was stated that the amount was paid
on the express understanding that if the Society ran, a
share would be allotted to him and otherwise the money would
be returned. This letter was written long after proceedings
had been taken by the Registrar, and the courts below did
not attach much importance to it. On the other hand, Dr.
Seth himself gave evidence in these proceedings which
deprives Exhibit D-5 of very much of its value. Exhibit P-
10 is the receipt granted to Sri Chaturvedi. It expressly
recites that Rs. 500 was received as share money for five
shares in the Society. Notices were also issued to both Sri
Chaturvedi and Dr. Bhanti to attend the general body meeting
of the Society to be held on 1st March 1949 for electing the
President and members of the Managing Committee of the
Society, and Dr. Seth and Dr Bhanti actually attended it.
Sri Chaturvedi and Dr. Bhanti have also given evidence that
they paid the amounts only as share capital. The courts
below accepted the above evidence, and held that the moneys
were not paid to the appellant in his individual capacity.
There are no grounds for disturbing that finding in special
appeal.
It is now necessary to deal with the several contentions of
law urged by Mr. Tawakley in support of this appeal. His
first contention was that when the Sessions Judge disagreed
with the verdict of the jury and with the opinion of the
assessors, he should have referred the whole case under
section 307 for the decision of the High Court and not
merely that part of it which related to the charge under
section 477-A, and that his failure to do so vitiated the
conviction. He argued that when the same facts constitute
two
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distinct offences, one of which is triable with the aid of
jurors and the other with assessors, and the accused is
charged with both, the reference under section 307 must
relate to both the charges, if inconsistent findings by
different courts with reference to the same matter is to be
avoided. What would happen, he asked, if, in the present
case, the appellant did not file an appeal against his
conviction under section 409, but the High Court came to the
conclusion in the reference under section 307 that Sri
Chaturvedi, Dr. Bhanti and Dr. Seth did not pay the amounts
to the appellant as share money, and that no offence had
been committed by him under section 477-A? The conviction
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of the appellant under section 409 based on the finding of
the Sessions Judge that those amounts were paid as share
money would stand, notwithstanding that it would be against
the decision of the High Court. This anomaly could be
avoided, it is argued, by holding that the reference under
section 307 must be of the whole case.
Reliance is placed in support of this contention on the
observations in Emperor v. Haria Dhobi(1). We are unable to
agree with this contention. If the procedure adopted by the
Sessions Judge is to be held to be illegal, it can only be
on the ground that he contravened some provision of law
which requires him to refer the whole case to the High
Court. It is conceded that the only provision of law
dealing with this matter is section 307. But that section
applies in terms only to trials with the aid of a jury.
There is therefore no power in the Sessions Court to refer
cases tried with the aid of assessors for decision of the
High Court under that section. That was the view taken in
Pachaimuthu In re(2), where it was held that the Assistant
Sessions Judge had no jurisdiction to refer under section
307 the whole case to the High Court, that he should himself
dispose of the charges which were triable with the aid of
assessors, and that the reference in respect of those
charges was bad. This decision was followed in Emperor v.
Lachman
(1) A.I.R. 1937 Patna 66
(2) [1932] I.L R. 55 Mad 715.
1041
Gangota(1). The same view has also been taken by the High
Court of Bombay in a number of cases: Vide Emperor v.
Kalidas(2), Emperor v. Vyankat Sing(3) and Emperor v.
Chanbasappa(4). We are accordingly of opinion that the
Sessions Judge had contravened no provision of law, and had
committed no illegality in deciding the case, in so far as
it related to the charge under section 409, himself In this
case there is the further fact that the appellant preferred
an appeal against his conviction under section 409 by the
Sessions Judge, and that appeal was heard along with the
reference under section 307 in respect of the charge under
section 477-A, and that they were both of them disposed of
by the same judgment.
It was next contended that the true status of the appellant
was that of a servant and not of an agent, and that he
should have been charged not under section 409 but under
section 408. The substance of the charge against the
appellant is that as the promoter of a Society he lawfully
received the amounts paid by Sri Chaturvedi, Dr. Bhanti and
Dr. Seth, but that after its incorporation, when he failed
on 22-4-1949 to hand over those amounts to the Treasurer and
to include their names as shareholders in the minutes book,
he committed offences under sections 409 and 477-A. Now,
what is the status of the appellant as Secretary of the
Society in which capacity he committed the offences, servant
or agent? The distinction between the two is thus stated in
Halsbury’s Laws of England, Volume 22, page 113, para 192-
"A, servant acts under the direct control and supervision of
the master, and is bound to conform to all reasonable orders
given him in the course of his work........ An agent though
bound to exercise his authority in accordance with all
lawful instructions which may be given to him from time to
time by his principal, is not subject in its exercise to the
direct control or supervision of the principal".
Having regard to the nature of the duties of the appellant
as the Secretary of the Society, we are clearly
(1) A.I.R. 1934 Patna 424.
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(3) [1907] 9 Bom. L.R. 1057.
(2) [1898] 8 Bom. L.R. 599.
(4) A.I.R. 1932 Bom. 61.
1042
of opinion that his status was that of an agent and not a
servant. Moreover, whether the appellant should be charged
under section 408 or section 409 is of no importance in the
present case, as the sentence imposed on him under section
409, viz., four years’ rigorous imprisonment could be
maintained even under section 408. It was argued by the
appellant that an offence under section 408 was triable with
the aid of a jury, whereas that under section 409 was
triable with the aid of assessors, and that he had been
prejudiced in that be bad lost the benefit of a trial by
jury. But this objection was not taken in the trial court,
and is not now open. Vide section 536 of the Code of
Criminal Procedure.
It is next contended that there has been a violation of
section 234 of the Code of Criminal Procedure in that the
appellant had been charged with three offences under section
409 and one under section 477-A. But the case is governed
by section 235, as the several offences under sections 409
and 477-A arise out of the same acts and form part of the
same transaction. Moreover, the appellant. has failed to
show any prejudice as required by section 537. This
objection must accordingly be overruled.
It was finally contended that there had been no proper
examination of the appellant under section 342, and that
therefore the conviction was illegal. This objection was
not raised in the Courts below, and is sought to be raised
in this Court by a supplemental proceeding. We find no
substance in this objection.
In the result, this appeal fails and is dismissed.
1043