Patna High Court
State Of Bihar vs Kailash Prasad Sinha And Ors. on 6 February, 1961
Equivalent citations: AIR1961PAT451
JUDGMENT H.K. Chaudhuri, J.
1. This is an appeal by the State Government from an order of acquittal of the respondents who were tried by the learned Additional Sessions Judge of Patna on charges of criminal conspiracy, cheating and using forged documents.
2. During the material period, there were two ration shops at Mahalla Kadam Kuan in the town of Patna -- one standing an the name of respondent Kailash Prasad Singh and the other in the name of respondent Shyam Sunder Singh. Respondent Adya Prasad Was the Munshi of the 6rst named shop while respondent Ragho Prasad was the Mumshi of the latter shop. Respondent Ambika Prasad was a helper of Adya Prasad. Occasionally he worked for the other shop also. The case against the respondents was that between October 1952 and February 1954 they conspired to cheat the Ration Office at Patna by presenting forged chalans and obtaining ration authorities on the basis of those forged chalans and thereafter taking delivery of grains from the Government godowns.
On this allegation, a charge under Section 120B read with Sections 420 and 471/467 of the Indian Penal Code was framed against all the respondents. Three of them, viz., Adya Prasad, Ragho Prasad and Ambika Prasad, were also specifically charged under Sections 420 and 471/467 of the Indian Penal Code. The total quantity of grains fraudulently taken delivery of during the aforesaid period was 24544 maunds valued at Rs. 4,88,163/4/6.
3. In order to understand the modus operandi of the fraud it is necessary to explain the entire procedure from the submission of indents by shopkeepers up to the stage of delivery of grains to them. The shopkeepers were to submit their indents for grains in printed forms with chalans at the sectional office of the rationing department to which they were attached. The system of supply of grains, on ration cards, which was prevalent during the period of control till the middle of 1952, was changed to free supply thereafter when, according to the prosecution, shopkeepers used to get supplies according to their demands. After the indents and chalans were passed by the sectional office they were returned to the parties concerned who then went to the treasury along with, the chalans, which were in duplicate, and presented them to the clerk-in-charge of Government deposits under head "85-A Capital Outlay".
The treasury cleric was to put Ms initials on the chalans and endorse them with a stamp "To The Imperial Bank of India" (as it then was). In case of chalans of Rs. 500/- and above, the treasury officer himself signed them and entries were made in the "Receipt Enforcement Register". The next stage consisted of the tender of these chalans at the bank and the actual deposit of the money there by the shopkeepers. It is unnecessary to go into the details of the procedure at the bank at this stage. All that I need state is that at the end of the day one copy of the receipted chalan used to be made over to the party depositing the money.
The other copy along with a copy of the bank's scroll used to be sent to the treasury on the next day. The treasury sent the chalan to the Ration Office along with the treasury schedule containing the details of the receipted chalans of that department once a month. The purpose of sending these schedules to the Ration Office was to enable that office to verify the genuineness of the chalans presented by the parties with reference to the entries in the schedule. The evidence, however, shows that the persons whose duty it was to make this verification at the Ration Office seldom cared to do so with the result that numerous chalans, which are the subject-matter of these charges, were never verified by the staff with reference to the treasury schedules,
4. After obtaining the receipted chalans in the bank the parties presented them at the Ration Office during the early hours of the day. Thereafter, ration authorities or permits used to be drawn up at the office on the basis of these receipted chalans and made over to the parties concerned. At the time of delivery of the ration authorities the signatures or the thumb-impressions of the parties used to be taken on the Ration Authority Register. After taking these ration authorities the parties used to go to the Government godowns and obtain delivery of grains on presentation of those ration authorities.
5. The case of the prosecution is that the respondents used to get indent and chalans passed at the initial stage at the Sectional Office and then take the chalans to the treasury. After the chalans were passed at the treasury they, however, never went to the bank to deposit the money. Instead they used to forge the seals and endorsements of the bank and the signatures of the signing authorities on tile chalans showing falsely that the amounts had been duly deposited there and present them at the Ration Office.
The forgeries were so perfect that the 'Officers at the Ration Office never suspected their genuineness and issued ration authorities in lieu thereof authorising the shopkeepers to take delivery of grains from the godowns. It is undisputed that as many as 131 such forged chalans were used during the period beginning from October 1952 to 18-2-54 and that as much as 24544 maunds of grains valued at Rs. 4,88,178/4/6 were misappropriated by the person or persons connected with these two shops.
The charge of conspiracy framed against all the respondents under Section 120B read with. Sections 420 and 471/467 of the Indian Penal Code was to the effect that during the period in question they agreed between themselves to cheat the State of Bihar by presenting forged chalans (exhibits 3 to 3/130} knowing them to be forged and representing them to be genuine before the Rationing Authority at Patna, and inducing the Rationing authority, Patna, to Prepare ration authorities (exhibits 13 to 13/106) on the basis of the aforesaid forged chalans and make over the same to them which entitled them to take delivery of grains from time to time from the various godowns at Patna and by virtue of which they actually took delivery of 24544 maunds of grains.
Against respondents Ragho Prasad, Adya Prasad and Ambika Prasad charges under Sections 471/467 and 420 were framed in respect of three specific chalans in each case. So far as Ragho was concerned, the charges were in respect of chalan No. 48 dated 14-5-53, chalan No. 28 dated 25-9-53 and chalan No. 43 dated 3-10-53. Against Adya the charges were in respect of chalan No. 39 dated 30-1-53 chalan No. 28 dated 1-4-53, and chalan No. 61 dated 25-4-53. The charges against Ambika were in respect of chalan No. 50 dated 6-8-53 chalan No. 112 dated 9-7-53 and chalan No. 18 dated 23-7-53.
It was stated that these respondents had dishonestly used the chalans by presenting them before the Rationing Authority knowing or having reason to believe them to be forged documents and also cheated the Rationing Authority by dishonestly inducing them to deliver ration authorities which were valuable securities by virtue of which they took delivery of grains. There were no special features about these particular chalans and were just picked Up at random for purposes of the charges.
6. The respondents denied the charges. So far as respondents Kailash Prasad Sinha and Shyam Sunder Singh, in whose names the shops stood, are concerned they stated that they were mere name lenders for getting licenses for these shops. They asserted that they had nothing to do with the actual running of the shops. Respondents Ragho Prasad and Adya Prasad admitted that they were Munshis attached to the shops of Shyam Sunder Singh and Kailash Prasad Sinha respectively.
According to them, one Gajo Pandit was proprietor of these shops having full control and management thereof during the material period. They pleaded that they were merely servants and used to go to the Ration Office to take the ratio's authorities and obtain delivery of grains as directed by him. Their case was that they had nothing to do with the financial aspect of the matter which was exclusively in the hand of Gajo Pandit and that they never presented any of the chalans at the Ration Office.
In other words, according to them, they were innocent tools in the hands of Gajo Pandit. The plea of Ambika Prasad was that he was a mere wage earner and occasionally did odd jobs for these shops. He further stated that some times he used to take out goods from the Government godowns along with Gajo Pandit and keep them in the two shops. He pleads that he had no knowledge that the chalans were forged.
7. On a consideration of the evidence the learned court below held that the chalans (exhibits 3 to 3/130) were forged as they contained spurious seals and endorsements of the bank and the signatures of the bank officials and that no money had been deposited in respect of any of these chalans at the treasury. The defence suggestion that the amounts deposited under the chalans might have been misappropriated at the bank by some dishonest members of the bank staff was held by the learned Judge to be unacceptable. He then held that both the Munshis used to go to the Ration Office to take the ration authorities and also go to the godowns to lift grains.
Besides these two Munshis, respondent Ambika was also found to have lifted grains on some occasions. He next found that respondent Adya wrote all the forged chalans of the shops of Kailash except exhibits 3/30 and 3/39 which were in the handwriting of respondent Ragho. As regards the chalans of the other shop he found them all to be in the hand-writing of Ragho. On the vital question as to whether Ragho, Adya and Ambika had each filed some of these chalang the learned Judge held that the prosecution evidence did not establish with any amount of certainty that these persons had done so although there was evidence to show that Ragho and Adya used to visit the Ration Office for taking the ration authorities and it was possible that sometimes they also presented some of the disputed chalans at the office.
According to the learned Judge, from the mere fact that these two persons had signed the Ration Authority Register in token of having received ration authorities it could not be definitely said as to who had exactly presented the chalans. The finding of the learned Judge further was that there was nothing to show that any of these respondents had knowledge that the chalans in question were forged. The learned Judge also held that these three respondents had taken delivery of grains from the Government Godowns and kept them in the two shops but that it was possible that they were mere tools of some person actually running the shops.
In this connection, the Court below also considered the defence as to whether Gajo Pandit was controlling and managing the shops and held that the possibility of somebody other than the two Munshis managing these shops could not be ruled out. With regard to the charge of conspiracy, the learned Judge's finding was that the charge was not sustainable as there was no proof that the respondents knew the chalans to be forged documents. I may, in this connection, quote his words:
"So in this case I find that the evidence is clear as regards the other portions of the prosecution case. But so far as the real incriminating part is concerned there is paucity of reliable evidence and so the prosecution case suffers from this weakness. We are therefore, compelled to find the accused guilty merely on circumstantial evidence. There can be no doubt that there is a very strong suspicion against these accused persons. But it is altogether a different thing to say that the guilt of these accused persons can be legally inferred from the proved facts or circumstances".
The learned Judge was very much impressed with the defence of the two Munshis that it was Gajo Pandit who was solely managing these shops and observed in paragraph 19 of hig judgment, while considering the charge of conspiracy, that the circumstances showed that only one man was managing both the shops rather than that there were more conspirators at work. He definitely ruled out the possibility of the fraud having been committed by a number of conspirators acting together.
8. Before I take up the charges and the evidence, it is, therefore, necessary to determine the exact nature of connection which the respondents had with these two shops and whether there is any foundation for the contention that Gajo Pandit had during the relevant period become the sole proprietor of these two shops and was financing and managing them. The defence of some of the respondents that an absent offender was very likely responsible for all these frauds and these respondents being merely ignorant tools at his handa has seriously affected the learned Judge's findings on all the charges. The appreciation of the evidence will become easier once we are able to come to a clear finding in regard to this aspect of the case. I shall first take up the shop standing in the name of Shyam Sunder Singh.
(After discussion of evidence the judgment proceeds:) The conclusion, therefore, is irresistible that the name of Gajo Pandit was introduced as an afterthought. I reject the defence that Gajo Pandit had any connection with the shop of Ragho at any time. It is further established that although the shop was taken in the name of Shyam Sunder it was Ragho, who, as Munshi, not only wrote the accounts and registers of the shop and held sales but was in sole charge of its control and management. The only regular employee of the shop was a weighman -- a menial servant.
9. (After discussion of evidence as regards the other shop standing in the name of Kailash, His Lordship proceeded:) I hold that there is no justification for holding that Gajo and not Kailash was the owner of the shop. The only other employee in this shop was a weighman. As regards Ambika he has stated that occasionally he used to lift grains for both the shops. It appears that his connection with the two shops never went deeper than that of casual employee.
10. The finding of the Court below that a large quantity of grain covered by these charges was taken delivery of on behalf of these two shops on ration authorities issued on the strength of forged chalans has not been challenged by the respondents. Mr. Awadesh Nandan Sahai appearing on behalf of respondent Ragho, however submitted that the possibility of the amounts deposited under these challans at the bank having been misappropriated by some dishonest members of the staff there cannot be wholly excluded. He submitted that there was no warrant for the assumption that all clerks working at the Bank, who had to deal with these chalans and the cash, wera honest.
I am not impressed with this contention. The learned Judge has carefully considered this aspect of the case and has held that there was no justification for suspecting any of the Bank staff in this connection. The learned Judge came to a definite conclusion that no money had been deposited at all at the Bank in respect of these chalans. (After discussion of evidence His Lordship proceeded.) It is unnecessary to discuss the matter further. I am satisfied that the defence contention that the possibility of the amounts in regard to the forged chalans having been misappropriated at the bank must be ruled out.
11. Nor do I think that there is any substance in the defence contention that the chalans are not in the handwriting of Ragho and Adya. The learned Judge clearly found that all chalans relating to the shop of Kailash except two, that is, exhibits 3/20 and 3/39 are in the handwriting of Adya. As regards' the chalans of the other shop all have been found to be in the handwriting of Ragho. The learned Judge has rightly pointed out that the Handwriting Expert's opinion with regard to these chalans is not satisfactory inasmuch as his opinion, was based upon a comparison of these chalans with the indents which were not admitted documents. The learned Judge, however himself made a comparison and observed as follows:
"Adya appears to have written all the chalans of K.P. Sinha except on Exts, 3/20, and 3/39 which have been written by Ragho. All the chalans meant for the shop of S.S. Singh appear in the pen of Ragho. I have myself taken pains to examine closely the writings of these two ae-cused persons. The word "Sinha" in the writings of Adya and the word 'wheat' in the writings of Ragho are very significant because they are so characteristically different. If the admitted writings and the writings on those chalans are placed side by side then I do not think there is any room for doubt that Adhya and Ragho have written on these chalans for their respective shops."
Mr. Awadesh Nandan Sahai has taken exception to the learned Judge holding the comparison himself and urged that this court should not attach any weight to the opinions of the learned Judge. In this connection, he has referred to several authorities, such as Ram Sabhag Singh v. Emperor, AIR 1937 Pat 146, Azmat v. Shiamlal, AIR 1947 All 411 and J.C. Glastaun v. Sonatan Pal, AIR 1925 Cal 485. These authorities lay down that a comparison of handwriting as a mode of proof is at all times hazardous and inconclusive and specially when it is made by any one not conversant with the subject and without such guidance as might be derived from the arguments of counsel and the evidence of experts.
In the Allahabad and the Calcutta cases the practice" of a Judge declaring whether a disputed signature agrees with the other signatures of a certain person without the assistance of any evidence but merely on his own inspection has been disapproved. In the present case, however, the finding of the learned Judge as to the chalans being in the handwriting of Adya and Ragho is not based upon his comparison, only. He has also referred to the surrounding circumstances and to the fact that as Munshis of the shops it was only natural that the writing work should have been done by them.
There is also positive evidence of Sheo Prasad Sinha (P. W, 9) who has proved the handwritings of these two respondents. This, witness, it will be remembered, was a Ward Inspector attached to the Sabzibagh, Office which included the Keamkuan area. Later on he worked in the Ration Office at Fraser Road as a clerk in the Accounts and Indent sections. He has proved that the chalans Exts. 3 to 3/65 except exhibits 3/20 and 3/39 are in the pen of Adya and that the chalans (exhibits 3/20 and 3/39 as also the chalans (exhibits 3/66 and 3/130) are in the pen of Ragho.
He has stated that when as Inspector he visited the shop of Ragho he used to see him write chalans, applications and registers. The witness saw this in 1952 on the five or seven occasions. Adya, he was stated, signed and wrote in the Ration Authority Register in his presence. The learned counsel for Ragho has criticised the evidence of this witness as tutored and has pointed out that the learned Judge has not referred to his evidence in coming to his conclusion regarding the handwriting of Ragho and Adya.
The mere fact that the Court below did not specifically refer to the witnesses' evidence in this connection is no ground for holding that he was not aware of this evidence. He was no doubt examined to prove these writings for the first time in the sessions court, but this need not be treated as suspicious when, his acquaintance with the writings of Ragho and Adya is based on convincing grounds. The evidence of this witness when considered along with the surrounding circumstances and the characteristic similarities in the two sets of handwritings noticed by the learned Judge which were not specifically challenged before me, justify the learned Judge's finding that the chalans are in the handwritings of Ragho and Adya.
12-15. The next question is who got the indents and the chalans passed at the initial stage, viz, at the sectional Office. Although this was an important matter learned Judge has not given any specific finding in regard to it. (After discussion of evidence, His Lordship proceeded :)
16. The learned Judge as well as couasel appearing for the respondents laid great stress upon the question of physical presentation of the chalans at the Ration Office by Ragho and Adya. This was due to the fact that in the charges under, Section 471/467 it was stated that these respondents' had dishonestly used certain chalans as genuine by presenting them before the Rationing Authority at Patna knowing or having reason to believe them to be forged documents. Similarly, the charge under Section 420 as framed also stated that they cheated the Rationing Authority by presenting forged chalans and by inducing them to deliver ration authorities and taking delivery of grain.
The physical presentation of the chalans is not, however, the important ingredient of these two offences. All that Section 471 requires is that there must be fraudulent or dishonest user of a document as genuine and knowledge or reasonable belief on dispart of the person using the document that it is a forged one. Similarly, the ingredients of the offence under section 420 are that the person deceived delivered to some one a valuable security or property that the person so deceived was induced to do so, that such person acted on such inducement in consequence of his having been deceived by the accused and that the accused acted fraudulently or dishonestly when so inducing that person. The use of the words "by presenting" in the two charges is, therefore, of little importance and is a surplusage.
17-18. I shall nonetheless examine the evidence which the prosecution has given to prove the physical presentation of these chalans by Ragho and Adya. (After discussion of evidence His Lordship proceeded : ) The learned Judge having failed to apply the correct test in the matter of appreciation of evidence, his conclusion was manifestly wrong. In disagreement with him, I therefore, hold it was these two personsi Adya and Ragho, who had presented the forged chalans at the Ration Office including the chalans in respect of which specific charges were framed against them and obtained delivery of the grains either themselves or through their servant Ambika Prasad.
19. Mr, Awadhesh Nandan Sahai has invited our attention to Trimbak v. State of Madhya Pradesh AIR 1954 SC 39; Bansidhar Mohanty v. State of Orissa, (S) AIR 1955 SC 585 and Balbir Singh v. State of Punjab, (S) AIR 1957 SC 216, which deal with the powers of the High Court in an appeal from an order of acquittal. As has been observed in the case of Balbir Singh (S) AIR 1957 SC 216, which has referred to all the earlier cases on the point:
"It is now well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and the views of the trial judge as to the credibility of the witnesses must be given proper weight and consideration; and the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge. who had the advantage of seeing the witnesses must also be kept in mind, and there must be substantial and compelling reasons for the appellate Court to come to a conclusion different from that of the trial judge".
In the present case, I am satisfied that the learned judge applied inadequate standards in judging the credibility of the witnesses. His findings moreover, were vitiated by non-consideration of the attending circumstances and the probabilities of the case. His assumption without the slightest justification that a person not connected with this case was in financial control and management of the shops led him into serious errors, His failure to draw obvious inferences from the circumstances established beyond reasonable doubt has seriously prejudiced the case of the prosecution. I have no doubt therefore, that there are in this case substantial and compelling reasons why the findings of the learned judge should not be allowed to stand.
20. The Court below, as I have indicated, laid considerable emphasis on the question of physical presentation of the chalans by the respondents and took the view that unless this was proved, the charges against them would fail automatically. Apart from the fact that I have differed from it on the question of factum of presentation, I am of opinion that the emphasis on this aspect of the ease, irrespective of any other consideration, was unjustified. The essential question is the question of user of the false documents. The learned Standing Counsel has contended that the fact that Adya and Ragho went on taking the ration authorities, which could be granted to them only on the basis of the receipted chalans, amounts to user by them of the forged chalans.
He has urged that having obtained the benefit of the forged chalans it is not open to them to plead that they had not used them. In this connection, the learned Standing Counsel has relied upon the cases of Jabbar Ali v. Emperor, AIR 1929 Cal 203. Sriramulu Naidu v. Emperor, AIR 1929 Mad 450 and Baju Jha v. Emperor, AIR 1929 Pat 60. The Calcutta case is not of much assistance. There the accused, from some interest in, or desire to assist the defence filed a document for the purpose of the suit in advance of a trial.
In the view taken by their Lordships, that amounted to using the document. They further observed that the wider the definition of the word "use" in Section 471 the better, as the use has to be fraudulent. The Madras case, however, amply supports the contention of the learned Standing Counsel. In that case also the plea of the accused was that he had not physically presented the forged document before the registering authority. Rejecting this plea their Lordships observed:
"The evidence shows that the petitioner actively participated in the process of presentation."
The question as to whether the accused had physically presented the forged document was considered by their Lordships to be immaterial. In the present case, there is clear evidence to show that respondents Adya and Ragho had actively participated in the process of presentation, assuming for the moment that what the learned Judge held about the factum of physical presentation was correct. It is these persons who used to prepare indents and chalans. It hay been proved beyond doubt that the chalans are in their handwriting.
Even according to the finding of the learned Judge, it was possible that these persons used to come to the Ration Office to present the chalans occasionally. It is these persons who invariably took out the ration authorities. Finally, it is these persons who mostly took delivery of the grains. Along with this, must be taken into consideration the fact that it was Ragho who was in sole charge of the shop standing in the name of Shyam Sunder Singh and that as to the other shop although Kailash was the license-holder and owner, the work in connection with the shop mostly used to be done by Adya himself.
It may, therefore, be said that these two persons actively participated in the process of presentation. In the Patna case, the forged document had been produced not by the appellant, but by a co-accused. Their Lordships held that since the appellant had taken advantage, together with other accused, of the defence based on the forged document, he must be deemed to have made use of the document within the meaning of Section 471 of the Indian Penal Code.
Even if, therefore, it be held, as the learned Judge has done that Adya and Ragho had not physically presented the chalans they must be deemed to have used the documents since they took advantage of those documents and actively participated in their presentation, The question, however, is academic, since I have held that the direct and circumstantial evidence proves beyond doubt that it was these two persons who used to present the receipted chalana.
21. The learned Judge was also impressed with the defence contention that the respondents had no knowledge regarding the forged character of the receipted chalans. He has observed that the prosecution ought to have given some more evidence from which the guilty knowledge of the persons could have been inferred. As it was, he has stated, there was not an iota of evidence to show that "by digesting these huge sums of money from time to time these two Munshis had benefited in any way or they had augmented their income or wealth". If the learned Judge intended to mean that it was incumbent upon the prosecution to prove where the ill-gotten money went or how it was distributed among the perpetrators of the crime, he was entirely wrong.
It would be impossible for the prosecution to adduce any such evidence. The very fact that the two Munshis and Kailash had taken out the ration authorities and then obtained delivery of goods is enough to prove that they were benefited by the forged documents. It is undisputed that all these huge quantities of grains, which had been issued to them, actually found place in the two shops. It was unnecessary for the prosecution to go further and prove as to what became of the money which these grains fetched.
The learned Judge's finding that these persons had no knowledge as to the forged character of the receipted chalans is entirely untenable. The learned Standing Counsel has urged that having regard to the circumstances of the case, each of the three respondents, viz., Ragho, Adya and Kailash must be deemed to have had knowledge that the chalans were forged. This contention appears to be well-founded. So far as Ragho is concerned, he was in sole charge of the shop. The fact that no money had been deposited into the bank in regard to the chalans must, therefore, be deemed to have been known by him. He was writing the accounts of the shop and it is puerile to suggest that he was not aware as to how the huge amounts of grains were finding their way into his shop without any money being advanced.
The same consideration applies to the case of Kailash, the owner of the other shop. I hold, therefore, that he too was fully aware of the fact that the receipted chalans in lieu of which grains were being taken from the Government godowns to his shop were forged documents. As to Adya, who was the Munshi of the shop of Kailash, he has admitted that he used to write the accounts of the shop. It has been proved that the chalans of the shop used to be written by him. It is significant that neither Adya nor Ragho named the person who used to go to the bank for deposit or to the Ration Office for filing the chalans. In the written statement they in rely stated that these works used to be done "by those who used to go to the bank for the deposits".
Their plea that they had nothing to do with the financial aspect of the shop or that they never deposited the moneys in the bank is falsified at least by one instance. The Rationing Officer appears to have imposed a fine of Rs. 25/- on each of these shops for certain irregularities in 1953. These fines were deposited by the two Munshis under chalan Nos. 158 dated 7-5-1953 and 157 dated 7-5-1953 (vide exhibits 19 and 19/1). It is, therefore, idle to contend that Adya did not know that no moneys had been deposited in respect of the forged chalans.
22. The learned Standing Counsel has in this connection also relied upon Sections 14 and 15 of the Evidence Act. Section 14 lays down that facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence etc. are relevant when the existence of any such state of mind is in issue or relevant. Section 15 which is a particular application of the general rule laid dawn in section. 14 provides as follows :
"When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences in each of which the person doing the act was concerned, is relevant".
I have held that Ragho and Adya had filed three chalans each which formed the subject matter of the charges under Sections 471/467 and 420 of the Indian Penal Code. I have further held that these two persons not only used these chalans, but also numerous other forged chalans. The question, therefore, arises whether, having regard to these facts, the Court is entitled to presume that the three chalans in each case were used with a guilty knowledge. The learned Judge has disposed of this question merely with the observation that section 15 does not go so far. This is what he has stated :
"It was argued on behalf of the prosecution that the instances of the presence of so many other chalans, apart from those three specific chalans would come under section 15 of the Evidence Ace and would be relevant for the purpose of showing the guilty intention of the accused persons. iN my opinion this section does not go so far..... No doubt such type of evidence is relevant, but I do not think it will amount to proof."
It is true that evidence that a man is generally dishonest does not bear with sufficient directness on his conduct on any particular occasion, or as to any particular matter, to make it safe to take it as a guide in interpreting his conduct. A series of instances of use of forged documents in this case, however, throw light on the motive of the respondents and their state of mind with reference to the particular instances for which they have been charged under Sections 471/467 and 420 of the Indian Penal Code. I may ia this connection also quote from Halsbury's Laws of England, Second Edition, Paragraph 641:
"Under the present rule, then, evidence of similar facts may be legitimately received to prove a party's knowledge of the nature of the main fact or transaction, or his intent with respect thereto. The same principle is applicable to proof of fraud or malice ..... And, in general, wherever it is necessary to rebut (even by anticipation) the defence of accident, mistake or other innocent condition of mind, evidence that the defendant has been concerned in a systematic course of conduct of the same specific kind as that in question may be given ..... If the acts are sufficiently proximate, in point of time, to be relevant to the ease under consideration they may be given in evidence whether done before or after the acts the subject of such case, and it is no objection that the similar facts are the subject of prior indictments on which the defendant has already been acquitted, or of separate indictments still to be tried."
23. On behalf of the respondents it has been contended that the previous instances or user of the chalans cannot be taken into consideration in the present case, inasmuch as, they form the subject of another charge, viz., the charge of conspiracy which has to be decided in this very case. I am not impressed with the distinction which learned counsel has sought to draw. It is well-established that similar facts which were subject of prior indictments can be taken into consideration as relevant under Section 15.
This applies also to separate indictments still to be tried. I find no warrant for the view that the other instances cannot be used in regard to the respondents knowledge of the nature of the main fact for which specific charges have been framed, simply because those other instances form the subject of separate indictments, which were tried simultaneously. Some of the authorities of the Indian High Courts on this point may also be referred to in this connection. The leading case on the point is Amrita Lal Hazra v. Emperor, ILR 42 Cal 957: (AIR 1916 Cal 188). The summary of the law on the point was given by Mookherji, J., thus :
"But evidence of similar facts although, in general inadmissible to prove the main fact or the connection of the parties therewith, is receivable, after evidence aliunde on these points has been given, to show the state of mind of the parties with regard to such fact; in other words, evidence of similar facts may be received to prove a party's knowledge of the nature of the main fact or transaction, or his intent with respect thereto. In general whenever it is necessary to rebut, even by anticipation the defence of accident, mistake or other innocent condition of mind, evidence that the defendant has been concerned in a systematic course of conduct of the same specific kind as that in question may be given."
This principle was re-stated in Emperor v. Panchu Das, ILR 47 Cal 671: (AIR 1920 Cal 500) and was followed in M.L. Pritchard v. Emperor, AIR 1928 Lah 382; Emperor v. Harjivan Valji, AIR 1926 Bom 331. Reference may also be made to Srinivas Mall v. Emperor, AIR 1947 PC 135 and Emperor v. Debendra Prasad, ILR 36 Cal 573. Accordingly, I would hold that the evidence that the respondents Adya arid Ragho were connected with similar cases of user of forged chalans is admissible to prove their knowledge and intention in regard to the cases for which specific charges have been framed against them under Sections 471/467 and 420 of the Indian Penal Code.
I am, therefore satisfied that the charges against Ragho and Adya under these two sections have been fully brought home to them. As regards Kailash, the charges as I have stated earlier in regard to the specific chalans has not been pressed.
24. There now remains the charge of conspiracy. The learned Standing Counsel has pressed this charge against Ragho, Adya and Kailash only. In order to establish this charge, the prosecution has to prove an agreement between these persons to do an illegal act. Where the conspiracy alleged is one to commit a series of crimes, mere proof of such an agreement between the accused is sufficient to sustain a conviction and no overt act need be proved. Proof of overt acts is not necessary but if some of them were concerned in the overt acts that would go a long way to establish that the agreement was in fact made by them.
So far as Ragho and Adya are concerned such evert acts have been proved. It is necessary to emphasise that in cases of conspiracy, direct evidence will be seldom forthcoming. We have, therefore, to look at the circumstances to see whether the conspiracy actually existed. On behalf of the prosecution it has been urged that there are a series of circumstances in this case from which it can be inferred with certainty that a conspiracy actually existed among Adya and Ragho. It is undisputed that there was not a single, genuine transaction on behalf of either of these shops between November, 1952 and February, 1954. It is again remarkable that the same quantity of grains was lilted for each shop on each occasion.
It was contended by Mr. Awadhesh Nandan Sahai that this circumstance should not be used against the respondents since during the period in question when the control system was not in existence, the quantity of grain to be issued to ration shopr-holders used to be fixed by the clerk-in-charge of the Indent Section. Although the evidence on the point is not unanimous, the question is not of much importance. The quantity on each occasion may have been passed by the Indent Office staff, but it could not be thrust upon the shop-keepers irrespective of their need and capacity to pay. It seems to be clear that their consent must have been taken before the actual quantity to be supplied and accepted was fixed.
Then again, while all the chalans of the shop of Shyam Sunder were written by Ragho, he also wrote at least two chalans for the other shop (exhibits 3/28 and 3/29). The other chalans of the shop of Kailash were written by Adya. The dates on all the chalans were identical and the numbers put on the chalans for each day were mostly consecutive. In the joint petition (exhibit 19/1) filed before the Rationing officer intimating deposit of the fines, Adya signed for Kailash and Ragho for Shyam Sunder. The ration authorities were also withdrawn and the grains lifted on identical dates.
The two fine chalans are also of the same date and bear consecutive numbers. Then again, it is curious that the chalans (exhibits 3/60 and 3/120) bear the bank's seal dated 12-11-1953, although the sectional officer (P.W. 7) and Treasury Clerk (P.W. 36) passed them on 11-12-1953. It has also been proved that the date On which the bank is purported to have passed those chalans was closed. It is also significant that from 5-6-19,53 to 23-8-1953 there were about 16 chalans for each shop alleged to bear the signature of one Sachidanand Gupta, Assistant Head Cashier (P.W. 42). The evidence shows that during this period this officer was working at some other station.
There is also one instance for each shop where the same officer is alleged to have passed the chalans on 22-12-1953 when he did not attend office at all. All these circumstances undoubtedly prove the existence of a conspiracy. The learned Judge observed that these instances would rather show that one man was managing both these shops than that two conspirators were at work. This observation clearly indicates to what extent the learned Judge was influenced by the defence allegation about Gap Pandit being responsible for these frauds.
As I have stated earlier, Gajo Pandit had never had any connection with the shop and the introduction of his name in connection with this shop was a clever device to divert suspicion from the actual perpetrators of the crime. The learned Judge's observation that one mind was working at both these shops, on the other hand, supports the theory that there was in agreement and meeting of minds. The nature of the conspiracy in this case indicates that it was the work of several persons acting together and that Ragho and Adya were in the thick of the conspiracy.
25. The question next is whether Kailash was in this conspiracy. He was. the license-holder of the shop and there is evidence to show that he used to visit the offices occasionally. There are however, certain circumstances in his favour. It has not been proved that he filed any of the fabricated chaJans. The only circumstances against him are that he knew of the passed chalans and must have been benefited by the fraud. In his case therefore, the evidence of his being a member of the conspiracy consists of the commission of the offences themselves by others.
In Leo Roy Frey v. Superintendent, District Jail, Amritsar, AIR 1958 SC 119, it has been laid down that the offence of a conspiracy to commit a crime is different offence from the crime that is the object of the conspiracy, because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed. Their Lordships have further observed that a crime attempted or completed does not require the element of conspiracy as one of its ingredients. In the circumstances, the benefit of doubt must go to this respondent and it must be held that the charge of conspiracy has not been proved against him.
26. As a result of my findings I am of opinion that the charges under Sections 471/467 and 420 of the Indian Penal Code have been proved against respondents Ragho and Adya. So far as the charge under Section 120-B against these two respondents is concerned it is clear that the matter has gone beyond the stage of mere conspiracy and offences have actually been committed in pursuance thereof. In the circumstances, their conviction also under Section 120-B of the Indian Penal Code is unnecessary. The charges against the other respondents have not been brought home to them and they were rightly acquitted by the learned Judge.
27. On the question of punishment I think we must take a serious view of the offence committed by the respondents in this case. It is a matter of common knowledge that such offences have become rather frequent of late and only an adequate sentence can produce a deterring effect on the offenders and serve as an eye-opener to the rest. I, therefore, sentence each of the respondents to six years' rigorous imprisonment and also to pay a fine of Rs. 5,000/- under each section. The sentence of imprisonment will in each case be concurrent. In default of payment of fine, the respondents will each undergo one year's rigorous imprisonment under each section.
28. In the result, the appeal is allowed against respondents Ragho and Adya and dismissed against the rest.
Ramratna Singh, J.
29. I agree.