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PETITIONER: ANIL KUMAR BOSE

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT10/04/1974

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. KHANNA, HANS RAJ

CITATION:  1974 AIR 1560            1974 SCR  (3) 902  1974 SCC  (4) 616

ACT: Penal   Code---S.   420--Guilty   intention   an   essential ingredient of offence of cheating--mens rea.

HEADNOTE: The  appellants.  an accountant and a  cashier,  along  with another  person, were accused of preparing false  pay  bills and  disbursing  the  amounts drawn  from  the  treasury  Lo fictitious  persons.   The  Sessions  Judge  convicted   and sentenced  them  under  S. 420 read with s.  34,  I.P.C.  On appeal,  the  High  Court  confirmed  the  convictions   and sentences passed against both of them. On further appeal to this Court, Allowing the appeals, HELD : For the purpose of holding the appellants guilty  the evidence  adduced  must establish  beyond  reasonable  doubt means rea on their part. [904 E] On  the evidence all that could be said at the  highest  was that  it  was  a failure on the part of  the  accountant  to perform his duties or to observe the rules of procedure laid down in the duty chart in a proper manner and may  therefore be  an administrative lapse on his part.  Without,  however, anything  more  it  will not be  correct  to  impute  guilty intention which is an essential ingredient of the offence of cheating. [905 D] The  material  before  the  High  Court  together  with  the significant   observations   made   by   it   against    the Superintendent and Deputy Superintendent do make out a  case for  giving  benefit of reasonable doubt to the  cashier  as well.   It is not possible to hold that the requisite  means rea had been established against him. [906 F]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal Nos.  223 and 224 of 1970.  Appeals by Special Leave from the Judgment and Order dated the 4th August 1970 of the Patna High  Court in Crl.  Appeals Nos. 213 and 236 of 1967. S.   Balakrishnan, N. M. Ghatate and B. Chakravarti, for the appellant (in Crl.  A. No. 223/70). Nuruddin and S. M. Singh for the appellant (in Crl.  A.  No.

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224 of 1970). R.   C. Prasad for the Respondent (in Crl.  A. No. 223/70). D.   Gobrurdhan for the Respondent (in Crl.  A. No. 224/70). The Judgment of the Court was delivered by GoswAmI,  J.  These appeals by special  leave  are  directed against the judgment of the Patna High Court convicting  the two  appellants  and another under  section  420/34,  Indian Penal  Code.   They have each been  sentenced.  to  rigorous imprisonment  for  one  year and a fine of  Rs.  200/-,  ’in default  regorous  imprisonment for six  months.   Dr.  Rama Shankar (PW 14) and Dr. Ram Balak Singh (PW 4) were 90 3 House Physicians. and Dr. Sailendra Kumar (PW 5) was a House Surgeon in the Durbhanga Medical College Hospital.  Hospital House Surgeons or House Physicians are usually appointed for different sections of the Hospital by the Superintendent  of the Hospital for a period of six months, January to June and July  to  December and their monthly  emoluments  total  Rs. 125/-;  Rs.  75/-  towards  stipend  and  Rs.  50,  as  diet allowance. The  prosecution case is that for the month of March 1963  a fictitious pay bill for Rs. 125/ was prepared in the name of Dr.  Rama Shankar, who had worked only for six months up  to December, 1962 and had made over charge in January 1963.   A similar  pay  bill  for  March 1963  was  prepared  for  Dr. Sailandra  Kumar,  who was working in Ear, Nose  and  Throat Department,  but  this bill was prepared  in  the  Pediatric Section.  Likewise another fictitious pay bill for the  same month  was  prepared  in the name of Dr.  Ram  Balak  Singh, although he never joined that post and he was substituted by Dr.  Rana Chandraketu.  The amounts of the  three  aforesaid pay  bills  were drawn from the Treasury  and  disbursed  to fictitious  persons.   The letters of  appointment  and  the joining  reports  of the various House Staff were  as  usual sent  to the Accounts Department for preparation of the  pay bills. Yogesh  Prasad  Thakur  was  the Bill  Clerk,  who  has  not appealed against his conviction.  The Accountant,  Raghunath Prasad  and  the  Cashier,  Anil Kumar  Bose,  are  the  two appellants before us.  Criminal Appeal No. 223 of 1970 is by Anil  Kumar Bose and Criminal Appeal No. 224 of 1970  is  by Raghunath Prasad.  Both these appeals are heard together and are disposed of by this common judgment. According to the rules of procedure, such pay bills used  to be prepared by the Bill Clerk, checked by the Accountant and then  placed for signature before the Superintendent of  the Hospital.   After his signature, the bills were handed  over to  the peon of the Hospital who took these to the  Treasury and after collecting the money therefrom made over the  same to  the Cashier, who made relevant entries in his cash  Book and other connected registers.  Then, in accordance with the Acquittance  Roll,  the money used to be  disbursed  to  the various  persons  who  signed in token  of  receipt  of  the amounts on the Acquittance Roll.  After disbursement of  the money,  a  certificate  used  to  be  given  by  the  Deputy Suprintendent  to  the  effect  that  the  money  had   been disbursed in his presence. Some  time in may 1963, in the course of preparation of  the Annual Establishment Return for submission to the Accountant General,  Bihar,  the  Head Clerk, Bhola  Nath  Jha  (PW  3) noticed  that in the Acquittance Roll for March 1963,  there were  names of more Housemen than the  sanctioned  strength. After  enquiry by several officers at different  levels,  an information   was  lodged  to  the  police  who   ultimately submitted  a  charge-sheet against the  two  appellants  and

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Yogesh  Prasad  Thakur, the Bill Clerk.   The  accused  were tried by 904 the  Court  of  Sessions ending in  their  conviction  under section 420/ 34 I.P.C. The High Court or appeal affirmed the conviction  and  sentence.  Hence these appeals  by  special leave. We are not concerned with the conviction of the Bill  Clerk, Yogesh Prasad Thakur, who accepted the same. The  defence  of the Accountant, Raghunath Prasad,  is  that these  bills  did  not pass through him and  so  he  had  no knowledge  about the correctness of the same and  they  were directly  put up before the Superintendent of  the  Hospital for his signature and he signed them.  Thereafter these were sent  to the Treasury for encashment and after that  he  had nothing to do with those pay bills. The defence of the Cashier, Anil Kumar Bose, is that he  has nothing  to do with the preparation of the bills.   He  came into  the  picture when the entire cash of these  bills  and other  bills  was handed over to him and  he  disbursed  the money  in accordance with the Acquittance Roll, as  prepared by  the  Accounts Department.  He did not know  these  three Doctors personally and he was not guilty of cheating. Since the Bill Clerk’s conviction stands, it may be accepted that  he prepared the three fictitious bills with a view  to cheat the Government. We  are  now concerned whether the two appellants  also  are guilty under section 420/34 I.P.C. For the purpose of holding them guilty, the evidence adduced must  establish, beyond reasonable doubt, mens rea on  their part.   We  will,  therefore,  consider  the  case  of  each appellant from that aspect.  With regard to the  Accountant, Raghunath Prasad, the evidence relied upon by the High Court for its conclusion of guilt of this appellant may be set out in its own words :               "Ext.  1 is the duty chart of the  Accountant.               The  first  item  of this chart  is  ’Sole  in               charge  of  accounts and to  exercise  general               supervision on all staff working under him for               the   efficient   working  of   the   Accounts               Section’.  The third item of this chart is ’To               complete the Bill Book and get it checked  and               signed  by the Dy.  Superintendent’.   I  must               point   out  that  this  duty  has  not   been               performed  by  the Accountant in the  case  of               these  disputed bills.  The fifth item of  his               duty  is ’To put up all salary bills  prepared               by  the  dealing assistant  daily  before  the               Superintendent’.  The Superintendent, PW 9 Dr.               Safdar Ali Khan has stated that the Accountant               is  responsible  for keeping  the  Acquittance               Roll in order.... It is stated in paragraph 21               that the Accountant should check the bill  and               then  place for signature of higher  officers.               of   Course,  it  is  in  evidence  that   the               Superintendent  had asked the office to  place               all  bills for his signature in the office  on               his table and no clerk should stand there when               he               905               would sign on those bills.  This direction  is               clearly  against item No. 5 of the Duty  Chart               of  the  Accountant.  I do not know  for  what               purpose   he  made  this  innovation  in   the               procedure.   But  this  procedure  would   not

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             absolve the Accountant of his duty to check.....the               pay bills and other bills before sending  them               to the.....Superintendent    it   is   further               interesting to note that..the   disputed   pay               bills do not bear the     initial or signature               of....the  Accountant below the  signature  of               the Superintendent   As  the  evidence  shows,               the Accountant did not purposely sign on these               forged  bills  with  ,a view  to  get  himself               absolved of the responsibility ,As a matter of               course, the work of this Accountant was to get               pay bills prepared, check them and then put up               before the Superintendent for his signature so               that  after obtaining his signature the  bills               may be sent to the treasury for encashment". On the above evidence at the highest it was a failure on the part  of the Accountant to perform his duties or to  observe the  rules  of procedure laid down in the Duty  Chart  in  a proper  manner  and may, there-fore,  be  an  administrative lapse  on  his  part  about which we  are  not  required  to pronounce  any  opinion  in this  case.   Without,  however, anything  more we do not think it will be correct to  impute to  this  appellant a guilty intention which is one  of  the essential  ingredients  of the: offence  of  cheating  under section  420 I.P.C. Apart from this, the High Court  is  not correct  and  indeed  had  no material  to  hold  that  "the Accountant did not purposely sign on these forged bills with a view to get himself absolved of the responsibility".   The evidence  of the Superintendent, which is  extracted  above, runs counter to that conclusion. With  regard to the other appellant, the Cashier Anil  Kumar Bose,  we may read what the High Court has relied  upon  for its finding :               "Coming  to  the case of the Cashier,  I  find               that  his Duty Chart is Ext. 1/1.   His  first               duty  is  ’Daily.receipt and  disbursement  of               cash’.  A note in this Duty Chart shows ’To be               solely  responsible  for  the  performance  of               above duties’. . . . The Deputy Superintendent               (PW  6)  has  stated in  paragraph  8  of  his               deposition that it was the duty of the Cashier               to  see  that  the payment  was  made  to  the               correct  or right person.  of course,  in  the               Duty Chart it is not written in so many words.               But  as  his duty was to disburse  the  money,               this  disbursement  was to be made in  a  bona               fide manner, that is,, after due enquiry about               the  payee, if the latter is not known to  the               Cashier.   In case of P.W. 5 one  payment  was               made  on the 5th April for the month of  March               and the next payment to a person of that  name               was  made on 10th April, that is,  only  after               five days.  The Cashier ought to have detected               this  if  his  case of bona  fides  is  to  be               accepted.  The argument advanced on his behalf               is  that it was not possible for him  to  know               all the Housemen.  It may be so, but he cannot               be  allowed to take shelter that he  paid  the               money  without ascertaining who was  the  real               recipient.  It was also the-               906               practice  to make the payment in  presence  of               the  Deputy ,Superintendent and then  to  take               his  initial below the seal, that, is,  rubber               stamp.   In  these  disputed  cases  no   such

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             signature   was   obtained   of   the   Deputy               Superintendent,  and .there is no  explanation               as  to  why  this was not  done.   The  Deputy               Superintendent has clearly stated that against               these  disputed entries his signature was  not               obtained  and no rubber .stamp concerning  the               payment   was  affixed....  In   my   opinion,               therefore,  the, Cashier also cannot claim  to               be absolved of the charge against him.  It was               his  duty  to have seen that the  payment  was               made  to the correct person.  It is not  clear               in  evidence that these payments were made  in               presence  of the Deputy Superintendent of  the               said Hospital.  The witnesses have spoken only               about the usual practice".               The  learned  Judge of the High Court  made  a               significant observation in the following terms               "I  am  constrained to remark that  both,  the               Superintendent  and the Deputy  Superintendent               have  shown carelessness in their  duties  and               these  things  came to happen because  of  the               latitude   which  they  had  given  to   these               employees.    Had  the   Superintendent   been               careful  to see whether the signature  of  the               Accountant was given in the pay bills, he must               have  detected that in the disputed pay  bills               there was no signature of the Accountant,  and               that  should have aroused his suspicion  about               the correctness of the pay bills". Even on the finding of the High Court, there was nothing  in the Duty Chart that the duty of the Cashier was to see  that the payment was made to the correct or right person.   There is  further no evidence that these three Doctors were  known to  the Cashier.  On the other hand, the High Court has  not absolutely  repelled  the argument advanced on  ’his  behalf that  it was not possible for him to know all the  Housemen. The High Court has come to an adverse conclusion against him on  account  of his not properly "ascertaining who  was  the real  recipient" of the money before he disbursed the  same. The  material  before  the  High  Court  together  with  the significant  observation against the Superintendent and  the Deputy Superintendent do make out a case for giving  benefit of reasonable doubt to the Cashier as well.  On the evidence which the High Court has relied upon against him, it is  not possible  to  hold  that the requisite  mens  rea  has  been established  against this accused.  As observed in the  case of  the  Accountant, it may be at the highest a case  of  an error  of judgment or breach of performance of  duty  which, per se, cannot be equated with dishonest intention to  esta- blish the charge under section 42O I.P.C. In the result, the appeals ,are allowed.  The judgment of the High Court so far as these two appellants are concerned is set aside.  The two appellants  herein are acquitted of the charge and shall  be discharged from their bail bonds.  P.B.R.                          Appeals allowed. 907