Full Judgment Text
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PETITIONER:
MADANLAL
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT:
05/04/1967
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
BACHAWAT, R.S.
CITATION:
1967 AIR 1590 1967 SCR (3) 439
CITATOR INFO :
D 1968 SC 709 (14)
RF 1973 SC2204 (12)
ACT:
Indian Penal Code, 1860 (Act 45 of 1860), ss. 120B, 196(2)
and 409-Officer authorised his clerk to receive and disburse
moneys-Moneys not paid to persons concerned-Clerk admits
receipt but alleges handing over to officer-Value of
admission-Both charged for conspiracy and criminal breach of
trust-Officer acquitted-If clerk could be convicted for
criminal breach of trust-Sanction not obtained-If conviction
for criminal breach of trust vitiated.
HEADNOTE:
J had authorised the appellant a clerk under him, to
withdraw moneys from Bank for payments to different persons.
J, discovering that the moneys were not paid to persons
concerned, lodged a report. The appellant admitted to have
withdrawn the moneys, but stated that he had handed them
over to J, and made entries in the register showing
disbursement at J s instance, and J had initiated them. J
was charged under s. 409 and the appellant under ss. 409,
465, 477A and 120-B I.P.C. The Trial Court convicted both
under ss. 120-B and 409 but the Sessions Judge acquitted J
and convicted the appellant under s. 409 only. The High
Court, too, maintained the appellant’s conviction holding
that the moneys having been admittedly received by the
appellant, the burden of proof was upon him to show what he
had done with them and there being no evidence that he
handed them over to J, except his bare allegation he had
failed to discharge that burden. In appeal to this Court,
the appellant contended that (i) the case proceeded
erroneously as if the appellant had to prove his case beyond
reasonable doubt that he had handed over the moneys to J and
a reasonable doubt could have been raised in the prosecution
evidence if the document called for by the appellant had
been produced and his application for their production had
not been rejected; (ii) it was not his duty as a clerk to
receive these moneys and that he had only received them at
the instance of J; (iii) the charge as to criminal breach of
trust against the appellant and J being one under s. 409
read with s. 120-B and there being no charge under s. 409
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simplicitor a conviction under s. 409 only was not valid;
(iv) the trial suffered from misjoinder of charges in that
there were six items of moneys in respect of which_
misappropriation was alleged and three entries in respect of
which falsification of accounts was charged against the
appellant; and (v) though he was charged under s. 120-B and
s. 477-A no sanction tinder s. 196-A(2) of the Criminal
Procedure Code was obtained and, therefore, the entire trial
was vitiated.
HELD:The appeal must be dismissed.
(i)There was no question of the appellant raising any
reasonable doubt in view of his admission that he had
received the moneys. There was no substance in the
contention that if the documents had been produced the
appellant could have made out a reasonably probable case
that he had handed over the moneys to J. [444A-B]
(ii)There was evidence that the appellant not only used to
receive moneys but also used to disburse them. Whether it
was done by him as part of his duties would clearly be a
matter of evidence, which cannot be gone into in this Court
as it was not raised in the High Court. J
440
authorised the appellant to draw and receive the moneys in
question far the express purpose of payment to different
parties. There was, therefore, entrustment to the appellant
of the said moneys for -an express purpose. [444D, F]
Budha Lal v. State of Rajasthan, Cr. A. No. 156 of 1962
decided on 27th January[1965], referred to.
(iii)If the charge of conspiracy to commit criminal
breach of trust is followed by a substantive charge of
criminal breach of trust in pursuance of such conspiracy
there is nothing to prevent the court convicting an accused
under the second charge even if the prosecution fails to
establish conspiracy. In any event, there was no prejudice
caused to him as he was aware that there was a substantive
charge under s. 409 against him. [444H-445B]
Kizhakkeppallik Moosa v. State, A.I.R. 1963 Kerala 68,
disapproved.
Willie Slaney v. State of Madhya Pradesh, [1955] 2 S.C.R.
1140, referred to.
(iv)The appellant did not at -any earlier stage take
objection to the charges under ss. 409 and 477-A on the
ground that he was likely to be embarrassed in his defence.
He has also not shown that any prejudice was caused to him
and that being so this contention also must fail. [445D]
(v)Though the charge under s. 120-B required sanction no
such sanction was necessary in respect of the charge under
s. 409. At the most, therefore, it can be argued that the
Magistrate took illegal cognizance of the charge under s.
120-B as s. 196(2) prohibits entertainment of certain kinds
of complaints for conspiracy punishable under s. 120-D
without the required sanction. The absence of sanction does
not prevent the court from proceeding with the trial if the
complaint also charges a co-conspirator of the principal
offence committed in pursuance of the conspiracy or for
abatement by him of any such offence committed by one of the
conspirators under s. 109 of the Penal Code. The fact that
sanction was not obtained in respect of the complaint under
s. 120-B did not vitiate the trial on the substantive charge
under s. 409. No prejudice could be said to have resulted
in view of the appellant’s confession. [447C-F]
Abdul Mian v. The King, A.I.R. 1951 Pat. 513, Govindram
Sunder Das v. Emperor, A.I.R. 1942 Sind. 63 and Nibaram
Chandra Bhattacharyya v. Emperor, A.I.R. 1929 Cal. 754,
referred to.
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Sukumar Chatterjee v. Mosizuddin Ahmed, 25 C.W.N. 357. Syed
Yawar Bhakat v. Emperor, 44 C.W.N. 474, Ram Pat v. Emperor,
(1962) 64 P.L ’R. 519 and Mohd. Bachal Abdulla v. The
Emperor, A.I.R. 1934 Sind. 4, approved.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 116 of
1964.
Appeal by special leave from the judgment and order dated
December 20, 1963 of the Punjab High Court in Criminal Revi-
sion No. 824 of 1963.
K.Baldev Mehta, G. D. Gupta and Indu Sani, for the appel-
lant.
Bikramjit Mahajan and R. N. Sachthey, for the respondent.
441
The Judgment of the Court was delivered by
Shelat, J. In 1961 Ravi Datt Joshi was the Assistant
District Inspector of Schools at Kamal and the appellant was
then working under, him as a clerk. Between March to
December 1961, Joshi authorised the appellant to draw
certain amounts from the State Bank of India, Karnal.
Accordingly, on March 11, 1961, the appellant drew Rs.
979.12 for payment to M/s. Joti Pershad Gupta & Sons. On
March 31, 1961, he drew a further sum of Rs. 1449.38 out of
which Rs. 1404 were to be paid to the Indian Red Cross
Society. He made an entry in the cash book showing as if
that amount was paid to the said Society and got that entry
initialled by Joshi. On July 3, 1961, he encashed a bill
for Rs. 424, the amount being payable to two teachers,
Ishwar Datt and Chand Ram. The appellant made an entry in
the acquittance roll showing as if he had paid Rs. 200 to
Chand Ram. On November 15, 1961 he received Rs. 281.15 in
respect of arrears of salary of one teacher, Harbhajan Kaur
and on December 2, 1961, he received Rs. 42.66 and Rs. 494,
the first amount being the, salary of Ram Sarup, another
teacher and the other as contingent fund payable to the
staff. None of these amounts was paid to any of the
aforesaid persons for payment to whom they were received by
him. On M/s. Joti Pershad Gupta & Sons complaining to
Joshi that the amount due to them was not paid, Joshi looked
into the matter and finding that that amount and other
amounts were embezzled, he lodged a complaint before the
Police. The police thereupon registered a case under s. 409
against the appellant and under ss. 409, 465, 477-A and s.
120-B of the Penal Code against Joshi. The trial Magistrate
convicted Joshi and the appellant under s. 120-B and under
s. 409 for criminal breach of trust in respect of Rs.
3414.53 and also under s. 477-A and awarded different
sentences and fines directing the sentences to run
concurrently. In appeal, the Additional Sessions Judge
acquitted Joshi of all the charges. He also acquitted the
appellant on charges under s. 120-B and s. 477-A but upheld
his conviction under s. 409. The appellant filed a revision
in the High Court where he conceded that the aforesaid
amounts were received by him from the Bank but pleaded that
he had handed them over to Joshi and that it was Joshi’s
duty to disburse those amounts and to maintain accounts as
Joshi was incharge of the office. The High Court held that
the said moneys having been admittedly received by the
appellant, the burden of proof was upon him to show what he
had done with them, that there being no evidence that he
handed them over to Joshi except his bare allegation, the
appellant had failed to discharge the burden and was,
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therefore, rightly convicted under s. 409. The High Court
relied upon the evidence of Sukhminder Singh, the District
Inspector of Schools that the appellant had confessed before
him that
442
out of the said sum of Rs. 3414-53 he had misappropriated
Rs. 2500 and that Joshi had misappropriated the balance of
Rs. 979 and that the appellant was prepared to deposit the
amount of Rs. 2500. The evidence of the District Inspector
of Schools also was relied upon as showing that when
approached for payment, the appellant had falsely
represented to M/s. Joti Pershad Gupta & Sons and the
Assistant Secretary of the Red Cross Society that he had
remitted to them the two amounts payable to them.
Before the High Court, the appellant contended that the
trial suffered from misjoinder of charges, that Joshi being
the drawing and disbursing officer, it was he and not the
appellant who was responsible for the said misappropriation,
that he had applied to the -trial Magistrate for production
of certain documents, that those documents were not produced
and that he was prejudiced by the said non-production as he
could have shown from those documents that he had handed
over the said amounts to Joshi as Joshi was the officer
responsible for disbursements. The High Court rejected
these contentions and on merits accepted the finding both of
the Magistrate and the Additional Sessions Judge that the
appellant had misappropriated the said amounts and dismissed
the revision. Hence this appeal by special leave.
Mr. Mehta for the appellant first contended that the High
Court erred in proceeding with the, case as if the appellant
had to prove his case beyond reasonable doubt that he had
handed over the said moneys to Joshi. In support of his
contention he relied upon Woolmington v. The Director of
Public Prosecutions(1) and argued that if the appellant
could show that his case was reasonably probable and could
cast a doubt on the prosecution case that would be enough to
entitle him to the benefit of reasonable doubt. There was,
however, no question of the appellant raising any reasonable
doubt in view of (a) his admission that he had received the
said moneys, (b) the evidence of the District Inspector of
Schools that he had confessed before him of having misappro-
priated Rs. 2500 at least and was prepared to deposit the
said amount, and (c) the evidence as to his false
representations to M/s. Joti Perhad Gupta & Sons and the
Assistant Secretary of the Red Cross Society that moneys due
to them had already been remitted. But the argument of Mr.
Mehta was ’that he could have raised a doubt on the
prosecution evidence if the documents called for by the
appellant had been produced and his application for their
production had not been rejected.
In his statement under s. 342 of the Code of Criminal Pro-
cedure the appellant admitted that he had drawn the said
amounts from the Bank. His case, however, was that he did
so on Joshi
(1)[1935] A.&. 462.
443
authorising him to do so and that he had handed them over to
Joshi. He pleaded that he had made entries in the
remittance transfer register showing disbursement of these
amounts but those entries were made by him at the instance
of Joshi and Joshi had initialled those entries. The
argument was that in order to prove his case the production
of the said documents was necessary.
The appellant had called for five documents, viz., (1) A
Memo dated June 27, 1960 from the Secretary to the Finance
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Department to all heads of Departments showing that it was
the. head of office, i.e., Joshi, who was responsible for
disbursement, (2) Instructions issued in 1962 according to
which a clerk could make disbursement only if he had
furnished security of Rs. 600, (3) the Bill book which
witness Des Raj admitted was maintained and which if
produced would have shown that the appellant had handed over
the said moneys to Joshi, (4) the remittance transfer
register admitted by the District Inspector of Schools could
be found in the office, and (5) the sub-voucher for Rs. 494
which the District Inspector assured the trial Magistrate he
would send for but failed to produce. Regarding item No. 1
a copy of the Memo was in fact filed in the court -and
admitted in evidence. For the rest of the items, the trial
Magistrate passed an order directing the prosecuting police
inspector to make a report. On December 29, 1962, the
officer made the report that there was no bill book, i.e.
item No. 3, that item No. 4, the remittance transfer
register was part of the record of the Assistant District
Inspector’s office and that the same could be found there
and that the sub-voucher item No. 5 was not traceable. No
grievance remained in respect of items 1 and 2 as a copy of
the said Memo was admitted in evidence. Therefore, there
would be no dispute that Joshi was the disbursing authority.
But in view of the extra judicial confession made by the
appellant that he had in fact misappropriated Rs. 2500, the
fact that Joshi was the disbursing authority would not be of
any importance. Items 3 and 5, according to the said
report, could not be traced. No point, therefore, can be
made on the score of their non-production. There remained,
therefore, only the remittance transfer register. The order
sheet of the Magistrate shows that at the time when the
prosecution closed it,, case and the statements of the
appellant and Joshi were recorded under s. 342 of the Code,
no objection was taken by the appellant that the case should
not proceed until the said register was produced. The case
was adjourned to December 29, 1962 for defence evidence. On
that date also no objection appears to have been taken and
the case was allowed to proceed. Ultimately on January 14,
1963, the Magistrate passed his aforesaid order of
conviction. Apart from that, since the moneys were not
remitted to the parties concerned there can be no question
of there being any R.T.R. in respect of them. Evidentially
that
444
document was called for by the appellant in order to create
confusion knowing full well that it was not there. We find,
therefore, no substance in the contention that -if these
documents had been produced the appellant could have, thrown
some doubt on the prosecution evidence and could have made
out a reasonably probable case that he had handed over the
said amounts to Joshi.
Mr. Mehta next argued that under S. 409 assuming that the
said moneys were entrusted to the appellant, such
entrustment must be in his capacity as a public servant.
Being a clerk in the office of the Assistant District
Inspector of Schools the appellant undoubtedly was a public
servant. But the contention was that it was not his duty as
a clerk to receive these moneys and that he had only
received them at the instance of Joshi. Not being his duty
so to receive the said moneys, it cannot be said that it was
in his capacity as a clerk or as part of his duties that the
said moneys were entrusted to him. There was, however,
evidence that the appellant not only used to receive moneys
but also used to disburse them. Whether it was done by him
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as part of his duties, would clearly be a matter of
evidence. This contention was not raised in the High Court
and being dependent on evidence, he is not entitled now to
raise it before us. The decision ,of this Court in Budha
Lal v. The State of Rajashan(1) rested on different facts as
there was clear evidence that entrustment of moneys
deposited in the complainant’s savings account in the post
,office was to the accused’s brother who was the post master
and not to the accused. In the present case the position is
that Joshi authorised the. appellant to draw and receive the
moneys in question for the express purpose of payment to
different parties. There was, therefore, entrustment to the
appellant of the said moneys for an express purpose. The
decision in Budha Lal’s,(1) case cannot apply.
The third contention of Mr. Mehta was that the charge as to
,criminal breach of trust against the appellant and Joshi
being one under S. 409 read with s. 120B and there being no
charge under S. 409 simplicitor a conviction under s. 409
only is not valid. He argued that as the prosecution failed
to establish conspiracy the -appellant could not be
convicted of the offence under S. 409 simplicitor. In our
view, there is no substance in this contention. If the
charge of conspiracy to commit criminal breach of trust is
followed by a substantive charge of criminal breach of trust
in pursuance of such conspiracy there is nothing to prevent
the court convicting an accused under the second charge even
if the prosecution fails to establish conspiracy. In any
event, there was no prejudice caused to him as he was aware
that there was a sub-
(1) Criminal Appeal 156 of 1962 decided on 27th January,
1965.
445
stantive charge under S. 409 against him. Mr. Mehta,
however, relied upon a decision of the Kerala High Court in
Kizhakeppallik Moosa v. The State(1). That decision cannot
be of any avail as it is directly contrary to this court’s
decision in Willie Slaney v. The State of Madhya
Pradesh(2).
It was then argued that the trial suffered from misjoinder
of charges in that there were six items of moneys in respect
of which misappropriation was alleged and three entries in
respect of which falsification of accounts was charged
against the appellant. There is some conflict of judicial
opinion as to whether a charge of misappropriation where a
lump sum consisting of several items together with a charge
of falsification of several entries made with a view to
screen the misappropriation is correct. We need not in the
present case decide which view is correct. The appellant
did not at any earlier stage take objection to the charges
under ss. 409 and 477-A on the ground that he was likely to
be embarrassed in his defence. He has also not shown that
any prejudice was caused to him and that being so this
contention also must fail.
The last contention was that though he was charged under s.
120-B and s. 477-A no sanction under s. 196-A(2) of the
Criminal Procedure Code was obtained and, therefore, the
entire trial was vitiated. We may observe that the
Additional Sessions Judge found that sanction was not
obtained though the appellant and the said Joshi were
charged under the aforesaid two sections along with the
charge under s. 409. Reliance in this connection was placed
on a decision of the Patna High Court in Abdul Mian v. The
King(3), where it was held that sanction to prosecute is a
condition precedent to the institution of prosecution and
that it is the sanction which confers jurisdiction on the
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court to try the case. The charge-sheet in that case was
under s. 295-A of the Penal Code and sanction having not
been obtained for prosecution the High Court held that even
though the Magistrate trying the accused ultimately
convicted him under s. 298 which did not require sanction
the trial was vitiated as the Magistrate could not proceed
with the charge-sheet without the requisite sanction. The
decision in Govindram Sunder Das v. Emperor ( 4 ) was also
called in aid as it has been observed there that where the
offence of conspiracy to commit forgery is charged against a
person and the previous consent of the local Government
under s. 196A though required is not obtained, the court
cannot take cognizance of the complaint. These decisions,
however, are in respect of cases where a single charge in
respect of an offence requiring sanction was preferred
against the accused and previous sanction was not obtained
and the court held that in the absence of such sanction the
trial court could not take cognizance of the complaint.
(1) I.A.R. 1963 Kerala 68.
(2) [1955] 2 S.C.R. 1140.
(3) [A.I R] 1951 Pat. 513
(4) A.I.R. 1942 Sind 63.
446
Section 196A(2) provides that no court shall take cognizance
of the offence of criminal conspiracy punishable under S.
120-B in a case where the object of the conspiracy is to
commit any noncognizable offence or a cognizable offence not
punishable with death, imprisonment for life or rigorous
imprisonment for a term of two years or upwards, unless the
State Government or a Chief Presidency Magistrate or
District Magistrate empowered in this behalf by the State
Government has, by order in writing, consented to the
initiation of the proceedings. It is clear that the court
cannot take cognizance without the necessary consent in the
case of a charge of criminal conspiracy under S. 120-B of
which the object is as stated therein. The conspiracy to
commit an offence is by itself distinct from the offence to
do which the conspiracy is entered into. Such an offence,
if actually committed, would be the subject-matter of a
separate charge. If that offence does not require sanction
though the offence of conspiracy does and sanction is not
obtained it would appear that the court can proceed with the
trial as to the substantive offence as if there was no
charge of conspiracy. In Sukumar Chatterjee v. Mosizuddin
Ahmed(1) where the charge was under S. 404 read with S. 120-
B and no sanction was obtained it was held that the case
could proceed though only under S. 404. Similarly, in Syed
Yawar Bakht v. The Emperor(2), the accused was charged under
s. 120-B read with s. 467 and also under s. 467 read with S.
109 of the Penal Code. No sanction was obtained. It was
held that the consequence of not obtaining the sanction was
as if the charge under s. 120B read with S. 467 had never
been framed but the accused could be convicted under the
other charge viz., under s. 467 read with S. 109 of the
Penal Code. The same view has also been taken by the Punjab
High Court in Ram Pat v. State(3) where it was held that
where a complaint discloses more offences than one, some of
which can be inquired into without sanction and others only
after sanction has been obtained, there can be no objection
to the inquiry being carried on in respect of the first
category of offences. Reference may be made to the decision
in Nibaran Chandra Bhattacharyya v. Emperor (4 ) . The two
petitioners were convicted under S. 120B. They were also
convicted under s. 384 and s. 384 read with s. 114 of the
Penal Code respectively. The learned Judge accepted the
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contention that the trial was vitiated as no sanction was
obtained in respect of the charge under S. 120-B and set
aside the conviction also under S. 384 and S. 384 read with
S. 114 passed against petitioners 1 and 2. But the report of
the decision shows that he did so because he felt that by
proceeding with the charge under S. 120-B admitting evidence
on that charge and that charge resulting in conviction
prejudice was caused to the petitioners in the matter of the
other charges and
(1) 25 C.W.N. 357. (2) 44 C.W.N. 474.
(3) (1962) 64 P.L.R. 519. (4) A.I.R. 1929 Cal. 754.
447
that therefore the trial could not be said to be severable.
No such question of prejudice can be said to arise in the
present ease in view of the extra-judicial confession of the
appellant of having misappropriated Rs. 2,500 out of Rs.
3,414 and odd in question.
There was in the instant case not only a charge for
conspiracy under s. 120-B but also two other separate
charges for offences under ss. 409 and 477-A alleged to have
been committed in pursuance ofthe conspiracy. Though
the charge under s. 120B required sanction no such sanction
was necessary in respectof the charge under s. 409. At the
most, therefore, it can be argued that the Magistrate took
illegal cognizance of the charge under s. 120-B as s. 196-
A(2) prohibits entertainment of certain kinds of complaints
for conspiracy punishable under S. 120-B without the
required sanction. The absence of sanction does not prevent
the court from proceeding with the trial if the complaint
also charges a co-conspirator of the principal offence
committed in pursuance of the conspiracy or for abetment by
him of any such offence committed by one of the co-conspira-
tors under s. 109 of the Penal Code. (See Mohd. Bachal
Abdulla v. The Emperor(1). In our view, the fact that
sanction was not obtained in respect of the complaint under
s. 120-B did not vitiate the trial on the substantive charge
under s. 409. No prejudice could be said to have resulted
in view of the appellant’s confession that he had in fact
misappropriated Rs. 2,500 and was prepared to deposit that
amount.
The appeal is dismissed.
Y.P. Appeal dismissed.
(1) A.I.R. 1934 Sind 4.
448