http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: SUDHIR KUMAR MUKHERJEE AND SHAM LAL SHAW

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT24/09/1973

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. KHANNA, HANS RAJ

CITATION:  1973 AIR 2655            1974 SCR  (1) 737  1974 SCC  (3) 357

ACT: Indian Penal Code (Act 45 of 1860), s. 511--Scope of.

HEADNOTE: The first appellant was an employee in a firm and the second appellant  was  a supplier of lime stone to the  firm.   The procedure  in  respect  of the supply was  that  the  second appellant  would bring four bags of lime stone every day  to the first appellant and present a chalan to him.  The  first appellant  would  then send the chalan to P.W. 2  who  Would initial  it  and  send  it  back  to  the  first  appellant. Thereupon,  the  first appellant would put a  seal  and  his signature on it and the second appellant would present it to the concerned department and receive payment for the  supply made.   On  complaints that the first appellant was  in  the habit  of signing the chalan without actually receiving  the goods, P.W. 2 was asked to make a physical verification.  On the  day the verification was made, the first appellant,  as usual sent the chalan to P.W. 2. After initialling it,  P.W. 2  verified the stock and not finding the four bags of  lime stone  questioned  the  two  appellants.   They  were   then prosecuted  and  were convicted for offences under  s.  120B read with s. 420 and s. 511 read with s. 420, I.P.C. On the question whether there was only a preparation and not an attempt to cheat, HELD : Under s. 511, I.P.C., a person commits the offence of "attempt to commit a particular offence" when (i) he intends to  commit that particular offence and (ii) he, having  made preparations  and  with  the  intention  of  committing  the offence,  does an act towards its commission : such  an  act need  not be the penultimate act towards the  commission  of that  offence  but  must  be an act  during  the  course  of committing  that  offence.  The provisions  of  the  section differ from English law in that it is not necessary for  the offence under s. 511 that the transaction commenced must end in the crime, or offence, if not interrupted. (740 E-G] When the chalan is sent by the first appellant for  initials of  P.W.  2  the  first appellant  takes  upon  himself  the responsibility of assuring P.W. 2 that the little stone  had been  received.   In the present case, the chalan  had  been prepared  and the initials of P.W. 2 obtained.  This is  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

most  important and crucial step towards cheating though  it is  not  the penultimate step.  Towards this  end  both  the accused  had  co-operated.  Therefore, the accused  aid  not stop  at the stage of preparation but had reached the  stage of attempt. [739 B-C, D-E; 740 G-H; 741 A-B] Abhayanand  Mishra v. State of Bihar, [1962] 2  S.C.R.  241, followed. [No  opinion was expressed on the question of conspiracy  as there had been only a single instance.] [739A)

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.  60- 61 of 1970. Appeal  by special leave from the judgment and  order  dated July 15, 1969 of the Calcutta High Court in Criminal Appeals Nos. 423 and 390 of 1960 respectively. R.   L. Kohli and S. K. Gambhir, for the appellant (in  both the appeals). P.   K. Chatterjee and G. S. Chatterjee, for the  respondent (in both the appeals). 738 The Judgment of the Court was delivered by ALAGIRISWAMI,  J. The two appellants were tried  before  the Presidency  Magistrate,  4th Court,  Calcutta  for  offences under  s.120B read with s.420 and s.511 read with  s.420  of the  Indian Penal Code.  The learned  Presidency  Magistrate held them guilty of both the offences and imposed a sentence of  1 year’s imprisonment and a fine of Rs. 200 on  each  of the  accused  on the, first charge and  considered  that  no separate  sentence was necessary in respect of  the  second, and the appeals filed by them in the High Court of  Calcutta were  summarily dismissed.  The facts giving rise  to  these appeals are as follows Appellant  Sudhir Kumar Mukherjee was an employee in  charge of soda lime department of M/s Gluconate Limited,  Calcutta, and  appellant Sham Lal Shaw was the supplier of lime  stone to  the said firm. it appears that four bags of  lime  stone were  needed  every day.  The procedure in  respect  of  the supply  was that Shaw used to bring the bags to  Sudhir  and present  a chalan to him.  Thereupon Sudhir would  send  the chalan  to  P.W.  2, Ardendu Sekhar  Goswami,  who  used  to initial it and send back to Sudhir.  Thereupon Sudhir  would put  a  seal  on it as also his signature,  and  Shaw  would present that chalan to the concerned department and  receive payment  for the supply made.  It appears that the  Managing Director  of the company, Amarendra Nath Haldar,  P.W.1  had beard  certain  complaints that Sudhir was in the  habit  of signing the chalan without actually receiving the goods.  He therefore asked PW 2 to make a physical verification of the, lime  stone to be received on 4-3-1968.  On that day  Sudhir sent the chalan to PW 2 for his signature through PW 3. PW 2 initialled  it  and after informing PW 1  about  his  having initiated the chalan went down to verify the stock.  As  the four  bags of lime stone were not there he asked Sudhir  and he  stated that the quantity received had been spent.  PW  1 sent  for Sudhir and he first told him that the  lime  stone received  had been used up and later changed  his  statement and  said  that  he might have  signed  the  chalan  through mistake.  Shaw was then sent for by PW 1. When questioned he denied having received any chalan or having made any  supply of  lime  stone on that day.  But when he was told  that  he would  be sent to the police, lie produced the chalan  which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

bore PW 2’s initials.  It should also be mentioned that PW 5 was  also asked by PW I to make a physical verification  and to him Sudhir denied having any knowledge of the matter  and Sham Lal Shaw told him that he had not supplied any goods on that  day.   It is on these facts that the  prosecution  was instituted  and  the  conviction  and  sentence  imposed  as mentioned earlier. Sudhir’s contention was that he had been falsely  implicated as he was the Assistant Secretary of the labour union.  Shaw contended  that  about Rs. 3,000/- was due to  him  for  the Supply of lime stone, that he bad made a demand for it, that PW  I asked him to reduce the rate, that on 4-3-1968  Sudhir asked him to take back the goods as it was not required  and he did so. There  is no doubt that the facts as narrated  earlier  have been  amply  proved  by  the evidence  in  this  case.   The question  therefore  is whether there was a  conspiracy  and whether there was an attempt at cheating 739 (Alagiriswami, J) or  whether as contended on behalf of the  appellants  there was  only  a  preparation  and  not  an  attempt.   In   the circumstances  of this case we would prefer not  to  express any opinion on the question of conspiracy as there has  been only  a single instance involved.  But we consider that  the evidence of attempting to cheat has been amply  established. We  are  unable  to accept the argument  on  behalf  of  the appellants  that  there  was only  preparation  and  not  an attempt.  The chalan, Ext. 1 mentions that the four bags  of lime stone were received from Sham Lal Shaw and it bears the initials of PW 2. It is established that it was the duty  of accused Sudhir after receiving the lime stone to send up the chalan  for PW 2’s initials.  It means that when the  chalan is sent up by Sudhir for being initialled by P.W. 2,  Sudhir takes upon himself the responsibility of assuring P.W.2 that the lime stone has been received, This practice is spoken to by  PWs 1 and 2. PW 3 gave evidence, about having taken  the chalan  to PW 2 for his initials at the instance of  accused Sudhir.  Though his evidence has been held to be  unreliable this  part  of  his  evidence  is  corroborated  by  PW  2’s evidence.   Though the subsequent stage of affixing a  stamp to  the chalan and signing of it by accused Sudhir  has  not been   completed   that  does  not  make   any   difference. Admittedly quite a good amount of money was due to Shaw from the company.  That money could be received only by producing the relevant chalans.  So this chalan also could be produced for  payment  after  it was stamped and  signed  by  accused Sudhir  at  his  own leisure.  The most  important  step  of getting  PW 2’s initials on the chalan has been carried  out and thereafter it was only a matter between the two accused. In the circumstances the question is whether there has  been an attempt to cheat or merely a preparation. The dividing line between a preparation and an attempt is no doubt  very thin, and though the principle involved is  well established the difficulty arises in drawing the line in the particular circumstances of a case.  The relevant portion of S. 511 is :               "Whoever   attempts  to  commit   an   offence               punishable  by this Code . . . . or  to  cause               such  an offence to be committed and  in  such               attempt does any act towards the commission of               the offence, shall, where no express provision               is  made  by this Code for the  punishment  of               such attempt, be punished." The  law  on  this  point  was  elaborately  discussed  with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

reference  to  all the decided cases by this  Court  in  its decision in Abhavanand Mishra v. State of Bihar(’).  We will confine  ourselves  to  stating  a  few  relevant   extracts therefrom.  It was pointed out in that decision that               "The  moment  a  person  takes  some  step  to               deceive  the person sought to be  cheated,  he               has  embarked on a course of conduct which  is               nothing  less  than an attempt to  commit  the               offence  as contemplated by s. 51 1.  He  does               the  act  with  the intention  to  commit  the               offence  and  the act is a  step  towards  the               commission of the offence." The  -decision  in  The Queen  v.  Ramsarun  Chowbey(2)  was referred  to and this Court specifically laid down that  the act towards the commission of such an offence need not be an act which leads immediately (2)  (1872) 4 N. W. P. 46 (1) [ 1 9621 (2) S. C. R. 241 740 to  the  commission  of the offence.  The  decision  In  the matter  of the petition of R. MacCrea(l) was  also  referred to.   The purport of that decision was explained to be  that S.  511  was  not meant to cover only  the  penultimate  act towards  the  completion of an offence; acts  precedent,  if those  acts are done in the course of the attempt to  commit the offence, and were done with the intent to commit it  and done  towards  its commission we’re also covered.   In  that decision Knox, J. said "Again,  the attempt once begun and a criminal act  done  in pursuance of it towards the commission of the act attempted, does  not  cease to be, a criminal attempt, in  my  opinion, because the person committing the offence does or may repent before the attempt is completed." This Court cited with approval the statement of Blair, J. "It  seems  to me that that section (s.511)  uses  the  word ,attempt’ in a very large sense; it seems to imply that such an attempt may be made up of a series of acts, and that  any one  of  those  acts  done towards  the  commission  of  the offence,  that  is, conducive to its commission,  is  itself punishable,  and though the act does not use the  words,  it can mean nothing but punishable as an attempt.  It does  not say that the last act which would form the final part of  an attempt in the larger sense is the only act punishable under the  section.   It  says expressly that  whosoever  in  such attempt, obviously using the word in the larger sense,  does any  act,  etc., shall be punishable.  The  term  ’any  act’ excludes  the,  notion that the final act  short  of  actual commission is alone punishable." This  Court  also referred to certain  other  decisions  and pointed  out that any different view expressed has been  due to an omission to notice the fact that the provisions of  s. 511 differ from the English Law with respect to ’attempt  to commit  an  offence’, and that it is not necessary  for  the offence   under  s.  511,  Indian  Penal  Code,   that   the transaction  commenced must end in the crime or offence,  if not  interrupted.  This Court finally summarised  its  views about the construction of s. 51 1 thus:               "A  person commits the offence of ’attempt  to               commit  a  particular  offence’  when  (i)  he               intends to commit that particular offence, and               (ii) he, having made preparations and with the               intention  to commit the offence, does an  act               towards  its commission: such an act need  not               be the penultimate act towards the  commission               of that offence but must be an -act during the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

             course of committing that offence." With  respect we concur in this view.  In the  present  case the  chalan  has been prepared and the initials  of  P.W.  2 obtained.   That is most important and crucial step  towards cheating.    Towards   this  end  both  the   accused   have cooperated.   Thereafter it only remained for the  appellant Sudhir  to affix the stamp and put his  signature.   Accused Shaw  could then have presented it to the  company’s  office and received payment.  This (1)  1. L. R. 15 All. 173. 7 4 1 (Alagiriswami, J) is a definite step towards the commission of the offence  of cheating  though  it is not the penultimate step.   We  hold that  the acts of the accused did not stop at the  stage  of preparation  but  had  reached the stage  of  attempt.   We, therefore, uphold the conviction of the appellants under  s. 511  read  with S. 420 I.P.C. The appeals  are  disposed  of accordingly. it  is,  however, stated that the  appellants  have  already suffered ’the sentence imposed by the, Presidency Magistrate and it is not necessary to say or do anything further  about it. V.P.S. 742