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PETITIONER: SRICHAND K. KHETWANI

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 27/09/1966

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR RAMASWAMI, V. BHARGAVA, VISHISHTHA

CITATION:  1967 AIR  450            1967 SCR  (1) 595  CITATOR INFO :  RF         1970 SC  45  (15)

ACT: Code  of  Criminal Procedure, s. 232-Indian  Penal  Code  s. 120B-Trial  for conspiracy-Licences issued to  bogus  firms- Eight  such licences issued-Whether one conspiracy or  eight conspiracies-Charge. Indian  Evidence  Act, ss. 45 and  114-Specimen  writing  of accused  obtained but not sent to hand-writing  expert-Court whether  can consider possible reasons for not  sending  the same, apart from explanation given by investigating officer- Adverse inference whether may be drawn against prosecution.

HEADNOTE: The  appellant  was tried and convicted along  with  certain others  under s. 120-B read with ss. 409 and 5(2) read  with s. 5(1)(d) of the Prevention of Corruption Act.  The accused were alleged, in pursuance of a conspiracy, to have arranged the  issue of a number of licences for the import  of  motor vehicles and motor vehicle parts, to a number of  cornpanies which had no existence.  Against the appellant the  specific allegation was that he had received the delivery by post  of two   such  licences  and  had  signed  the   acknowledgment -receipt.  The appellant along with others was convicted  by the  trial court, and his conviction having been  upheld  by the High Court, he came to this Court by special leave. The material questions that came up for consideration were : (1) whether the charge at the trial was not defective  since it  mentioned only one conspiracy for the issue of  all  the licences  whereas eight licences had been issued  and  there were  therefore  eight conspiracies; (2)  whether  the  High Court  was right in taking into account reasons  other  than those  given by the investigating officer as an  explanation of  his  failure  to send the specimen  handwriting  of  the appellant to the handwriting expert for opinion. HELD  :  (i)  The  charge of conspiracy  was  not  that  the conspiracy was entered into with each bogus individual  firm for  the benefit of that firm alone in connection  with  the issue  of licences to that particular firm.  The charge  was that  out of the profits made from acts done in  furtherance of the conspiracy, all the persons in the conspiracy were to

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benefit.[598 B-C] The  conspiracy was a general conspiracy to keep on  issuing licence.-,  in the names of fictitious firms and  to  -share the  benefits  arising out of those licences  when  no  real independent person was the licensee.  The various members of ’the  conspiracy  other than the two public,  servants  must have joined with the full knowledge of the modus operandi of the conspiracy and with the intention and object of  sharing the profits arising out of the acts of the conspirators.  It could not therefore be said that the mere fact that licences were issued in the names of eight different companies  makes out   the   case  against  the  appellant  and   the   other conspirators  to be a case of eight  different  conspiracies each  with respect to the licences issued to one  particular fictitious company. [598 D] R. v. Griffiths, [1965] 2 All E.R. 448, distinguished. (ii) The High Court could not be said to have been in  error in  considering  other reasons besides those  given  by  the investigating officer and 596 holding that no adverse inference could be drawn against the prosecution   from  the  fact  -that  the  opinion  of   the handwriting expert had not been obtained with respect to the acknowledgment receipt. [600 C] Further, an adverse inference against the prosecution can be drawn  only if it withholds certain evidence and not  merely on account of its failure to obtain certain evidence.   When no such evidence has been obtained., it cannot be said  what that  evidence would have been and therefore no question  of presuming  that  the evidence would have  been  against  the prosecution  under s. 114, illustration (g) of the  Evidence Act can arise. [600 D-E]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 184 of 1964. Appeal  by special leave from the judgment and  order  dated July  16, .1964 of the Bombay High Court in Criminal  Appeal No. 1858 of 1962. R. Jethamalani and P. Kalpila Hingorani, for the appellant. O. P. Rana and B. R. G. K. Achar-, for the respondent. The Judgment of the Court was delivered by Raghubar  Dayal,  J. A. G. Nelson, Assistant  Controller  of Imports,  P.H. Shingrani, Upper Division Clerk in the  Quota Licensing   Section  of  the  Office  of  the  Joint   Chief Controller   of  Imports  and  Exports,  Bombay,   Shrichand Khetwani  appellant, and Ramshankar Ramayan  Bhargava,  were tried  of an offence punishable under s. 120-B read with  s. 409  I.P.C.  and  s.  5(2) read with  S.  5(1)  (d)  of  the Prevention  of Corruption Act.  They were all  convicted  by the  trial  Court.   On appeal,  the  High  Court  acquitted Bhargava  and  dismissed  the appeals  of  the  other  three persons.   The  present-appeal is by  Khetwani,  by  special leave.  The. other two convicted persons have not appealed. It  may be mentioned here that the prosecution case is  that in pursuance of the conspiracy, a number of licences in  the name  of  several  companies which  had  no  existence  were prepared, that some of these were actually is-sued and  that two  of  those  licences issued were in  the  name  of  M.L. Trading Co., Bombay, and were delivered to the appellant  by Prabhakar, Karmik, P.W. 20, a postman, on May 15, 1959.  The appellant  denied having received any such licences  and  to have conspired -with, Nelson and Singrani.  The Courts below

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relied  on  the  statement  of Karmik  and  found  that  the appellant  received the licences issued, in the name of  the fictitious  firm, M.L.Trading Co., and that-  therefore  the appellant was a member of the conspiracy with, which he  was charged. The correctness of the conviction of the appellant has  been questioned by learned counsel on the following grounds 597 1.   The  charge of conspiracy framed against the  appellant was  a charge of a single conspiracy while the facts  proved establish the existence of not only a single conspiracy  but of  at  least eight conspiracies, each ,  single  conspiracy being  related  to the issue of licences to  one  particular company.  The charge of conspiracy as laid is therefore  not established. 2.  Karmik,  P.W.20,  was an accomplice on  account  of  the circumstances urged, but the High Court misread the evidence by  stating that there was a state of intimate  relationship between the appellant and Karmik. 3.  The  hand-writing expert should have  been  examined  to prove that the endorsement on the postal receipt was in  the handwriting  of  the  appellant,  especially  when  the  in- vestigating  officer had obtained specimen writings  of  the appellant.  The High Court considered certain  circumstances in justification of the failure of obtaining the opinion  of the  hand-writing  expert in addition  to  such  explanation which the investigating officer had given. 4.  The High Court sought corroboration of the statement  of Karmik  from  a single circumstance for which there  was  no evidence and which was not put to the accused when  examined under s. 342 Cr.  P.C. We  may now set out the charge in so far as it concerns  the appellant:               "That, during May 1959, you accused No. 1 A.G.               Nelson,  .  .  .  .,  accused  No.  2  P.   H.               Shingrani,. . . ., you accused No. 3 Shrichand               Keshuram  Khetwani  and  you  accused  No.   4               Ramshankar Ramayyan Bhargawa were parties with               other   unknown   persons   to   a    criminal               conspiracy,  by agreeing to do or cause to  be               done  illegal  acts,  to  wit,  to  abuse  the               official  positions  of yourselves  viz.,  you               -accused  No. 1 A. G. Nelson and  you  accused               No.  2 P. H. Shingrani by corrupt  or  illegal               means or otherwise to have import licences for               Motor  Vehicle  parts and specified  items  of               Motor  Vehicles parts issued in the  names  of               bogus  or unknown applicants on the  basis  of               false  numbers  of quota  certificates,  which               were  never  produced  with  applications,  by               misusing for the said purpose, import  licence               forms from out of Import Licence Books in  the               custody  of you, accused No. 1,  A.G.  Nelson,               and thereby to obtain pecuniary advantage,  to               all  of you and/or. the said unknown  persons,               and  thereby committed, an offence  punishable               s.  5(1) (d) of the Prevention  of  Corruption               Act  and  read  with section  409  I.P.C.  and               within my cognizance." 598 The  charge, as framed, describes the conspiracy to  be  the agreeing  of the various persons, including persons not  put on trial, to do or cause to be done, illegal acts.  The acts to  be  done were the abuse ,of the  official  positions  of Nelson and Shingrani for the issue of import licences in the

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names  of bogus or unknown applicants on the basis of  false particulars  etc., and the object of conspiring to ,do  such acts by the persons in the conspiracy charged or not charged was to obtain pecuniary advantage.  The charge of conspiracy was not that the conspiracy was entered into with each bogus individual  firm  for  the benefit of  that  firm  alone  in connection  with  the issue of licences to  that  particular firm.  The charge was that out of the profits made from acts done  in furtherance of the conspiracy, all the  persons  in the conspiracy were to benefit.  The  finding that the various firms to whom  licences  were issued  were fictitious is not questioned.   The  conspiracy was a general conspiracy to keep on issuing licences in  the names of fictitious firms and to share the benefits  arising out  of those licences when no real independent  person  was the  licensee.  The various members of the conspiracy  other than the two public servants must have joined with the  full knowledge  of the modus operandi of the conspiracy and  with the intention and object of sharing the profits arising  out of  the acts of the conspirators.  We do not  therefore  see that the mere fact that licences were issued in the names of eight  different  companies make out the  case  against  the appellant  and the other conspirators to be a case of  eight different  conspiracies  each with respect to  the  licences issued to one particular fictitious company. Great  reliance  is  placed on the case reported  as  R.  v. Griffith  (1)  in support of the contention that  the  facts established make out the case of eight conspiracies  instead of  the single conspiracy charged.  That case is  very  much different.   In that case, a supplier of lime and his  book- keeper  and  various individual farmers  were  charged  with conspiring  to commit fraud and obtain money by  false  pre- tences  from the Ministry of Agriculture and  Fisheries  and Food  on account of lime subsidy.  It was  established  that there  was link as between one farmer and another.  None  of them  was in contact with another.  Neither was  any  farmer shown  to  have  known that any other  of  the  farmers  was contracting for the supply of lime by the supplier.  It was, in these circumstances, that it was held that to  constitute one  conspiracy between all the farmers and the supplier  of lime  there  had to be evidence from which it  could  be  in feared  that each farmer knew that there was or  was  coming into  existence  a scheme to which he  attached  himself  to which there were other parties and which went beyond the act that he agreed to do so that all would be shown to have been acting in pursuance of the (1) [1965] 2 All.  E.R. 448. 599 common  criminal  purpose and that therefore  there  was  no evidence of conspiracy between all farmers as distinct  from evidence  of a number of separate conspiracies  between  the supplier  of lime, his book-keeper and one or other  of  the farmers.   The  farmers were genuine persons in  that  case. Each farmer approached the supplier of lime and happened  to be a party to the fraud committed in regard to the supply of lime to him.  In the instant case, there is no such  genuine independent company which directly approached the two public servants for its own benefit.  Whoever posed for the purpose of  the receipt of the licences and for utilising them  were those  who  posed on account of the full  knowledge  of  the conspiracy.  It is not possible to believe that one  without such knowledge would have posed, for a fictitious firm.   We are therefore of opinion that this case does not fit in with the  facts of the present case and that the  contention  for the  appellant  that the charge as framed is  wrong  is  not

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sound. The  High  Court  has given good reasons  for  holding  that Karmik  is not an accomplice.  He was a public servant.   He simply delivered the registered envelope to the appellant on being  told  by  him a day or so earlier that  he  would  be getting  some registered cover in the name of  M.L.  Trading Co.,  and  that  it  be delivered to  him.   It  is  in  his statement  that  he  had  been  delivering  letters  to  the appellant for a few years previously.  He has deposed: "I knew the accused No. 3 for a long time before I delivered the registered cover to him.  I do not think it necessary to obtain any attestation for his signatures." The High Court cannot therefore be said to have misread. the evidence  when it expressed that Karmik knew  the  appellant rather  intimately, as Karmik’s statement about knowing  the appellant and delivering letters to him in the past had  not been challenged.  The intimacy referred to was on account of contacts  which  Karmik  bad  with  the  appellant  in   the discharge of his duty as a postal peon. Karmik’s  statement  that  the  appellant  had  written  the endorsement  on the postal receipt has been accepted by  the High  Court.  It is not necessary to examine an  handwriting expert in every case of disputed writing.  The investigating officer stated that he did not send the specimen writing  of the  appellant  for comparison with the endorsement  on  the postal  receipt as he could not secure admitted writings  of the  appellant  though  he  tried his  best  to  obtain  his admitted  handwritings.   He was not further  questioned  to explain  why  he considered it necessary  to  have  admitted writings of the appellant in order to obtain the opinion  of the  handwriting  expert  about the  disputed  writing  when specimen  writings  of the appellant  were  available.   The explanation of the investigating officer seems to have  been on account of practice.  It appears from his statement Sup.C.I./66-10 600 that  he  sent certain questioned documents along  with  the admitted handwritings and specimen handwritings,  signatures and  initials  of accused Nos.  1 and 2  to  the  Government Examiner of questioned documents.  The practice may be sound or   not  but  the  bona  fides  of  the  conduct   of   the investigating officer cannot be questioned.  The High Court, however,  further considered that the material  provided  by the  writing on the acknowledgement receipt was very  scanty and  the  investigating  officer might have  felt  that  the subsequent  handwriting  would be feigned or  disguised  and that any comparison with the same would be deceptive.   Such considerations   might  have  been  in  the  mind   of   the investigating  officer but he had not stated them to be  his reasons  for  not obtaining the opinion of  the  handwriting expert.  The High Court cannot be said to have been in error in  taking  these  further reasons  into  consideration  and holding  that no adverse inference can be drawn against  the prosecution   from  the  fact  that  the  opinion   of   the handwriting expert has not been obtained with respect to the endorsement on the acknowledgment receipt. Further, an adverse inference against the prosecution can be drawn  only if it withholds certain evidence and not  merely on account of its failure to obtain certain evidence.   When no  such evidence has been obtained, it cannot be said  what that  evidence would have been and therefore no question  of presuming  that  that evidence would have been  against  the prosecution, under s. II 4, illustration (g) of the Evidence Act, can arise. When Karmik is not held to be an accomplice, no question  of

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corroboration of his evidence arises once the Court believes his statement.  The High Court believed Karmik and expressed the opinion:               "On  the  whole  we feel  that  Karmik  is  an               independent and disinterested witness.   There               is  no reason why Karmik should have  perjured               himself to implicate an innocent person." It  is  after arriving at this opinion that the  High  Court observed   that   Karmik’s   evidence   received    indirect corroboration from the subsequent conduct of the  appellant. Such  conduct  is said to be that the appellant  waited  for three  or  four  days before  approaching  the  Joint  Chief Controller, after receiving the letter of Mishra asking  him to  meet the Joint Chief Controller the same evening or  the next  day.  The accused was certainly not  questioned  about the  reason for his not meeting the Joint  Chief  Controller promptly.  The delay need not therefore be attributed to his guilty   conscience   and  cannot  be  taken   to   be   any corroboration of the statement of 601 Karmik.  This, however, does not affect the case against the appellant when Kamik’s statement is believed and requires no corroboration. The  result  is  that the conviction  of  the  appellant  is correct. We therefore dismiss the appeal. G.C.                            Appeal dismissed.,