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PETITIONER: BANWARI LAL JHUNJHUNWALAAND OTHERS

       Vs.

RESPONDENT: UNION OF INDIA AND ANOTHER(And connected appeals)

DATE OF JUDGMENT: 21/11/1962

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K.

CITATION:  1963 AIR 1620            1963 SCR  Supl. (2) 338

ACT: Criminal   trial-’Every  distinct  offence’,   Meaning   of- Conspiracy-Court  trying offence of conspiracy can  try  all offences  committed in Pursuance of con8piracy-Indian  Penal Code,  1860  (Act  45  of 1860), s.  71,  s.  120-B-Code  of Criminal Procedure, 1898 (Act 5 of 1898), s. 233.

HEADNOTE: A  firm having two partners entered into a contract for  the supply of 1306.5 tons of bottom boards for railway wagons of certain  specified  varieties  of hardwood  to  the  Central Railwaf 339 Administration.   The wood was to be supplied  at  different places  in different quantities.  The firm supplied wood  of inferior  quality.  Thomson and other officers issued  false inspection  notes certifying the quality of the wood  to  be according  to  specification.  On the basis of  those  false inspection notes, the firm received payment of Rs. 3,77,771. The accused were charged under ss. 109,120-B and 420 of  the Indian Penal Code and s. 5 (1) (d) read with s.5 (2) of  the Prevention of Corruption Act, and were sent up for  trial to the  court of the Special judge Kerala.  Charges  were  also framed  against them.  However,the case was  transferred  by this  court to the court of the Special judge,  Poona.   The latter  amended certain charges and also added a new  charge against certain appellants.  The accused went in revision to the  High  Court of Bombay and questioned  the  legality  or propriety  of  various  charges.   The  High  Court  ordered certain minor modifications in the charges and against  that order  both the accused and the Union of India came to  this court by special leave.  It was contended ’on behalf of  the accused  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 s 233  of the Code of Criminal Procedure and the charge as framed  was a combination of a number of charges with respect to several offences  of  cheating committed by obtaining money  on  the presentation  of 18 or 19 bills and was, therefore,  against the  provisions of s. 233.  It was also contended  that  the charge  of  cheating should have been  framed  against  that partner who had submitted the bill and obtained money.

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Held,  that the expression "every distinct offence"  in  s. 233 Code of Criminal Procedure has a different content  from the  expression "every offence" or "each offence"  and  that offences would be distinct if they be not in any way  inter- related. Chunne v. The State, A. I. R. 1954 All. 795, approved. Held, further that a single charge for the offence of cheat- ing  in  pursuance  of conspiracy  did  not  contravene  the provisions of s. 233 of the Code of Criminal Procedure.  The conspiracy  entered  into  by the  appellants  was  not  for obtaining  diverse  amounts by cheating but  to  obtain  the entire contract money by cheating.  The offence of  cheating contemplated   by  the  conspirators  was  one  offence   of obtaining,  by  cheating,  the full  amount  due  under  the contract for the material supplied.  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 340 constituted the offence of cheating.  When the accused could not be punished for more than one such offence, it could not be the intention of law that he 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.      Bhagat  Singh  v.  The State, [1952] 2 S.  C.  R.  371, refered to. Empress  v.  Raghu Rai, (1881) A.W.N. 154, Poonit  Singh  v. Madho  Bhot, (1886) I.L.R. 13 Cal. 270, Joan Subrna  v.  The King  Emperor, (1905) 10 C. W. N. 320 and Promotha Nath  Bay v. King Emperor, (1912) 17 C. W. N 478, approved. Both  the partners conspired to cheat the  Government.   The bills were presumably presented on behalf of the firm,  and, therefore, both the partners were responsible for  obtaining the money on the presentation of the bills.  Hence, both  of them were rightly charged. 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 committed within  its  territorial jurisdiction.   The charge framed by the Special  judge  was approved. Purushottam Das Dalmia v The State of West Bengal, [1962]  2 S.  C  R. 101 and L. N. Mukherjee v. The  State  of  Madras, [1962] 2 S. C. R. 116, followed.

JUDGMENT:  CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals Nos.  11 3, 114 and 190 of 6 1. Appeals  by special leave from the judgment and order  dated June  16,  1961,  of  the Bombay  High  Court-  in  Criminal Revision Applications Nos. 305 and 345 of 1961. J.   C.  Bhatt, J. B. Dadachanji, 0. C. Mathur and  Ravinder Narain,  for  the  appellants (in Cr.  A.  No.  113161)  and respondents Nos.  1 to 4 (in Cr.  A. No. 190 of 1961). K.R.  Chaudhuri, for the appellant (in Cr.  A.  No.  114/61) and respondent No. 5 (in Cr.  A. No. 190 /61). 341 H.   R.  Khanna and R. H. Dhebar, for the  respondents  (Cr. A.  Nos.  113  and 114161) and appellant  (in  Cr.   A.  No. 190/61). 1962.  November 21.  The judgment of the Court was delivered

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by RAGHUBAR.   DAYAL,J.-These three appeals, 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. Banwari   Lal  Jhunjhunwala  and   Champalal   Jhunjhunwala, appellants Nos. 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 relevant time. 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, C.     W.  E., Matunga, Bombay, 26-1/2 tons were  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 342 were  in the Kerala State.  The payments were to be made  by the Pay and Accounts Officer, Ministry of Works, Housing and Supply,  New  Delhi.   The  procedure  to  be  followed   in obtaining the payment was as follows. Immediately after despatch, the Constractor 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. Subsequent  to  the acceptance of the tender,  the  District Controller  of Stores., Central Railways, C. W.  E.  Depot., Matunga,  was  also added as the  Inspection  Authority  and Inspection Officer, for the wood to be supplied to D. C.  0. S.  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/-. The  prosecution  allegation  is  that  the  wood   actually supplied  was  of interior 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. The case against the accused appellants was first sent up to the Court of the Special judge in 343 Kerala.  He framed six charges against the accused.   Charge No.  1  was framed against all the accused and was  for  an

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offence under s. 120-B I. P. C. Charge No. 2 was against the two  partners of the Firm for an offence under s. 420 I.  P. C.  Charges  Nos.  3 and 4 were against  the  two  employee- appellants, for an offence under s. 420 read with s. 109  1. P.  C.  Charge  No.  5 for a  similar  offence  was  against Thomson.   Charge No. 6 was against Thomson for  an  offence under  s.  5(1)(d) read with s. 5(2) of  the  Prevention  of Corruption Act.  The second charge for the offence under  s. 420  I.  P. C. 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. 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  for  abetting  Thomson  in   his committing the offence under s. 5(1)(d) read with s. 5(2) of the  Prevention  of the Corruption Act.  Charge  No.  2  was amended  to the effect that the amended charge  referred  to the  supply of the entire quantity of wood, i.e. 13061  tons of wood and to the receipt of Rs. 3,77,771 /-.  Charge No. 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  No. 2 to the supply of 521 tons of wood and  to  the receipt  of  Rs. 1,41,3091- in accordance  with  the  charge originally framed by the 344 Special  judge,  Kerala, as the Kerala Court  did  not  have jurisdiction to try the offence committed in respect of  the supply of wood to places outside its jurisdiction. The Union of India has filed Criminal Appeal No. 190 of 1961 against the High Court’s order restricting the charge No.  2 to the supply of 521 tons of wood and to the receipt of  Rs. 1,41,309/- odd. 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,               Kannanore,  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               and Haldu, as agreed to supply as per contract                             and  tender.,  referred to above, to  have  th e               said  bottom  boards  fraudulently  passed  by               accused  No.  5, by abusing  his  position  as               public servant by corrupt and illegal means to               get  false inspection notes  and  certificates               from  accused No. 5 and others to  the  effect               that the bottom boards were of the species  of               Aine,  Kalpine  and Haldu as per  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

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             No.  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  Nos. 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               345               thereof, by claiming in bills, supported  with               inspection notes.... which acts amount to offence               punishable  under  ss. 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 s. 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 s. 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 s. 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  require- ments  of law and that the 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. 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 1360-1/2 tons of specified wood, inferior wood  be supplied  and  that  for the success  of  the  scheme  false inspection  certificates  be 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 346 on   supplying  material  inferior  in  quality  from   that undertaken to be supplied under he 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 alone  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  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 s. 420 does not contravene s. 233 of  the Code. 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

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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  s. 71.  I.  P. C., 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               347               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.  P.C. reads               "For every distinct offence of which any  per-                             son  is  accused  there  shall  be  a  separat e               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 expression ’every  offence’  or "each  offence’.   A separate charge is required  for  every distinct  offence  and not necessarily’  for  each  separate offence. The question is, what is meant by ’every distinct offence’ ? ’Distinct’    means    "not    identical.’    It    stresses characteristics that distinguish while the word 348 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 interrelation, 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. Such  a view has been the basis of certain decisions by  the High Courts and this Court. In Chunnoo V. State (1) Kidwai J., said atop. 797:               "The  use  of  the word  "distinct’  is  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

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             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". In Bhagat Singh v. The State (2 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  extremly  narrow   and               artificial view to split it into two offences.               There  are several reported cases in  which  a               similar view has been               (1) A.I.R. 1954 All. 795.               (1) [1952] S.C.R. 371.               349               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 Sudheendrakumar Ray V. Emperor (I.L.R. 60               Cal.  643)  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." In  Empress  v. Raghu Rai (1) 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.  In Poonit Singh v. Madho Bhot (2) a person’s furnishing the police  with false information against two persons was  held to result in one offence under s. 182 I. P. C., as the false statement  he  had  made  was  one  though  the  information conveyed by the statement related to two persons. In John Subarna v. King Emperor (3) 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 entirely was (1)  (1881) A. W. N. 154 (2) (1886) I. L. R. 13 Cal. 270. (3) (1905) 10 C.  N. 520. 350 held  to constitute one offence even though his  asking  the

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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. In Promotha Natha Ray v. King Emperor one charge was  framed under s. 406 I. P. C., 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 seperate offence was committed with respect to each of the books. We  therefore hold that a single charge for the  offence  of cheating  in  the  circumstances  of  the  case,  does   not contravene the provisions of s. 233 of the Code. This view also disposes of the other objection with  respect to charge no. 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. The  main  contention in the appeal by Thomson is  that  the Special judge, Poona, was not competent to amend the  charge No. 6 to the effect that Thomson, by abusing his position as a public (1)(1912) 17 C. W. N. 479. 351 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  based on facts which referred to  his  ob- taining  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. It has been held by this Court in Purushottam Das Dalmia  v. The  State  of West Bengal (1) and L. N.  Mukherjee  v.  The State  of Madras (2) 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 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  connect- ion with the supply of wood to places outside Kerala and for the  obtaining of the price of that wood.  The charge No.  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. In the result, we dismiss Criminal Appeals Nos. 113 and  114 and allow appeal No. 190 of 1961. Cr.  A. Nos. 113 and 114 dismissed. Cr.  A. No. 190 allowed. (1) [1962] 2 S. C. R. 101.       (2) [1962] 2 S. C. R. 116. 352

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