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PETITIONER: SUNIL KUMAR PAUL

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT: 06/03/1964

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K. GUPTA, K.C. DAS

CITATION:  1965 AIR  706            1964 SCR  (7)  70  CITATOR INFO :  D          1967 SC 752  (19)

ACT: Criminal Law-Offence, under s. 409 I.P.C.-Case allotted  for trial  to  Special Court-Special Judge appointed  under  the Criminal  Law  Amendment Act, if could  try  offences  under Criminal  Procedure  Code, at the same  trial-Alteration  of conviction  by  High  Court to  one  under  s.  420-Legality thereof-Absence  of  charge under s. 420-Indian  Penal  Code 1860 (45 of 1860), ss. 409, 420-Code of Criminal  Procedure, 1898 (Act 5 of 1898), ss. 236, 237-West Bengal Criminal  Law Amendment (Special Courts) Act, 1949 (XXI of 1949) s. 4(2).

HEADNOTE: The  appellant was tried and convicted by the Special  Judge for an offence under s. 409 I.P.C. and sentenced to rigorous imprisonment for two years and to pay a fine of’ Rs.  2,000. On  appeal,  the High Court altered his conviction  from  an offence under s. 409 to one under s. 420 I.P.C. for cheating the employees of the State Bank, by representing a, bill  as a  genuine bill drawn by the Sub-Divisional Health  Officer, and  thereby dishonestly inducing the Bank’s Staff  to  make over  the sum of Rs. 1,763-6-0 to him and sentenced  him  to rigorous  imprisonment  for one year and to a  fine  of  Rs. 2,000. On appeal by certificate the appellant mainly contended  (i) that  a case under s. 420 I.P.C. could not be  allotted  for trial  to  a Special Court by the Government  when  such  an offence was not committed by a public servant while purport- ing  to  act as such public servant: (ii) that  the  Special Court  could  not take recourse to the provision of  s.  237 Code of Criminal Procedure and if it could, the requirements of s. 237 Code of Criminal Procedure were not satisfied  and consequently  the  High  Court could not  have  altered  the conviction from s. 409 I.P.C. to one under s. 420 and  (iii) that  the  accused had been prejudiced’ on  account  of  the absence of a charge under s. 420 I.P.C. Held  (i) that on the facts proved it must be held that  the offence  under  s. 420 committed by the appellant  would  be committed  by him as a public servant purporting to  act  as such, and that a case involving this offence also could have

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been  allotted  to the Special Court by the  Government  for trial.   The Special Court was, therefore, competent to  try the accused for this offence if the facts proved established it,  Besides,  the appellant could be tried by  the  Special Court for this offence in view of the proviso to s. 4 of the West Bengal Criminal Law Amendment Act. Bhajahari  Mondal  v. State of West  Bengal,  [1959]  S.C.R. 1276, distinguished. (ii) that at the trial of the appellant for an offence under s.   409 I.P.C., in this case, the appellant could have also been charged for an offence under s. 420 I.P.C., in view  of s. 236 of’ the Code of Criminal Procedure. 71 In view of the proviso to sub-S. (1) of S. 4 of the Act, the Special Court could have tried the appellant for the offence under  S.  420 I.P.C. It did not actually try him  for  that offence.   It was however, open to it and to  the  appellate court  to  convict him of the offence under s.  420  I.P.C., when  trying for an offence under s. 409 I.P.C., in view  of s. 237 of the Code of Criminal Procedure. (iii)     that  in the present case the appellant could  not be  said  to be prejudiced in his conviction  under  s.  420 I.P.C.  on  account of the non-framing of  the  charge,  and consequent  non-trial,  under  s. 420  I.P.C.  In  fact,  no question  of irregularity in the trial arises.  The  framing of  the charge under s. 420 I.P.C. was not essential and  s. 237   Code  of  Criminal  Procedure  itself  justifies   his conviction of the offence under s. 420 if that be proved  on the findings on the record. Case Law discussed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 156  of 1961. Appeal  from the judgment and order dated June 15, 1961,  of the Calcutta High Court in Criminal Appeal No. 745 of 1959. D.   N. Mukherjee, for the appellant. P.   K. Chakraborty and P. K. Bose, for the respondent. March 6, 1964.  The Judgment of the Court was delivered by RAGHUBAR  DAYAL,  J.-Sunil  Kumar Paul  has  preferred  this appeal, after obtaining a certificate from the Calcutta High Court  under Art. 134(1)(c) of the Constitution.  The  facts leading to the appeal are these. The  appellant  was a clerk in the office of  the  Sub-Divi- sional Health Officer at Barrackpore in 1955-56.  He used to prepare  bills of the establishment, to present them at  the ,Sub-treasury  and later present them at the State  Bank  at Barrackpore,  to  receive payment in cash and to  make  over that  amount to the Sub-Divisional Health Officer.   Certain bills  were drawn under the heading  ’38-Medical’.   Certain bills were to be drawn under the heading ’39-Public Health’. -Some  other  bills  were drawn  under  other  headings.  On October  5,  1956, the appellant presented a  bill  for  Rs. 1,769 out of Which a sum of Rs. 5-10-0 was to be credited in the  Postal  Life Insurance Ledger and the  balance  of  Rs. 1,763-6-0  was to be received in cash.  This bill  was  duly passed by the Sub-Treasury and was subsequently presented to the  Bank on October, 6, 1956 for payment of Rs.  1,763-6-0. ’The Bank paid this amount to the appellant.  The amount was 72 not paid to the Sub-Divisional Health Officer.  In fact, the records  of the Office of the Sub-Divisional Health  Officer did not refer to any such bill being prepared and  submitted

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to the Sub-Treasury and the Bank for payment. A  bill for practically the same items which were  mentioned in  the bill cashed on October 6, was however  presented  on October 1, 1956.  It was for an amount of’ Rs. 1,767 out  of which  Rs.  5-10-0 were to be credited to  the  PLI  account ledger  and the balance of Rs. 1,761-6-0 were to be paid  in cash.   The amount of this bill was received on  October  1, and  was  duly  handed over  to  the  Sub-Divisional  Health Officer.   It  may be mentioned that this  bill.  cashed  on October 1, 1956 was at first prepared for Rs. 1,769 and  the amount  to be received in cash was to be Rs.  1,763-6-0  but prior  to  this encashment, a correction was  made  at  some stage’,  and  the  bill was reduced by Rs. 2  in  the  total amount and consequently in the amount to be paid in cash. The fact of the presentation of a bill for its encashment of Rs. 1,763-6-0 on October 6, 1956 came to the notice of  the. Sub.-Divisional  Health  Officer  at  the  instance  of  the Accountant General and on enquiry it was found that no  such bill   had  been  actually  presented  by  his  office   for encashment  and  that no such amount was  received  by  him. This   led  to  a  complaint  and  further   enquiries   and investigation   which  ended  in  the  prosecution  of   the appellant. The  case  was  made  over  to  the  Special  Judge  by  the Government  in  view of the provisions of  the  West  Bengal Criminal Law Amendment (Special Courts) Act, 1949 (W. B. Act XXI of 1949), hereinafter called the Act, as it involved  an offence  punishable  under s. 409 I.P.C. The  Special  Judge tried  the appellant for that offence and convicted him  and sentenced him to rigorous imprisonment for two years and  to pay  a fine of Rs. 2,000.  The appellant went in  appeal  to the High Court of Calcutta.  The High Court agreed with  the appellant’s  contenion that no offence under s.  409  I.P.C. had  been  made  out, but held.that he was  proved  to  have committed  an  offence under s. 420  I.P.C.  It  accordingly altered  his conviction from an offence under s. 409  I.P.C. to  one under s. 420 I.P.C., for cheating the  employees  of the  State Bank, Barrackpore, by representing that the  bill for Rs. 1,769 gross and Rs. 1.763-6-0 cash drawn on  October 6,  1956,  was a genuine bill drawn  by  the  Sub-Divisional Health Officer, and thereby dishonestly inducing the  Bank’s staff  to  make  over the sum of Rs. 1,763-6-0  to  him  and sentenced  him to rigorous imprisonment for one year and  to fine  of  Rs.  2,000.  It is against this  order  that  this appeal, has been preferred. 73 The facts found by the High Court are sufficient to  justify the  finding that the appellant committed the offence  under s.  420 I.P.C. Learned counsel for the appellant has,  urged the following points:               (1)   A case involving an offence under s. 420               I.P.C.  cannot  be  allotted for  trial  to  a               Special  Court  by the State  Government  when               such  an offence is not committed by a  public               servant while purporting to act as such public               servant.               (2)   The   Special  Court  could   not   take               recourse  to  the  provisions of  s.  237  Cr.                             P.C.,  and if it could, the requiremen ts of  s.               237  Cr.   P.C.  were  not  satisfied  in  the               present  case, and that consequently the  High               Court could not have altered the conviction of               the appellant from an offence under               s.    409 I.P.C. to one under s. 420.

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             (3)   The  ingredients of an offence under  s.               420 I.P.C. were neither alleged nor proved  by               the prosecution.               (4)   The  accused  has  been  prejudiced   on               account  of  the  absence  of  the   necessary               allegations and the omission to frame a charge               for an offence under               s.420  I.P.C. and therefore the provisions  of               s.  537 Cr.  P. C. would not cure this  defect               in trial. To  appreciate the first contention, reference may be  -made to the relevant provisions of the Act.  They are:               "4(1)  Notwithstanding anything  contained  in               the  Code of Criminal Procedure, 1898,  or  in               any  other law, the offences specified in  the               Schedule  shall be triable by  Special  Courts               only:               Provided that when trying any case, a  Special               Court  may also try any offence other than  an               offence specified in the Schedule, with  which               the  accused  may under the Code  of  Criminal               Procedure,  1898.,  be  charged  at  the  same               trial.               (2)   The distribution amongst Special  Courts               of  cases involving offences specified in  the               Schedule,  to be tried by them, shall be  made               by the State Government. 74 5. (2) Save as provided in sub-section (1)......... the  provi- sions the Code of Criminal Procedure, 1898, shall, so far as they  are not inconsistent with this Act, apply to the  pro- ceedings  of  a Special Court; and for the purposes  of  the said  provisions,  a Special Court shall be deemed to  be  a Court  of Session trying cases without a Jury, and a  person conducting  a  prosecution before a Special Court  shall  be deemed to be a Public Prosecutor."                         THE SCHEDULE *                    *                     * 2.  An  offence punishable under section 409 of  the  Indian Penal Code., if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government in respect of property - with which he is entrusted, or over which he has dominion in  his  capacity of a public servant or in the way  of  his business as such agent. 3.   An offence punishable under section 417 or section  420 of  the Indian Penal Code, if committed by a public  servant or by a person dealing with property belonging to Government as  an agent of Government, while purporting to act as  such public servant or agent. The  Government notification allotting the present  case  to the  Special Court is not on the record and  therefore  what its   actual  contents  were  cannot  be  stated  with   any precision.  It may however be assumed that it mentioned  the offence involved in the case to be that under s. 409 I.P.C., and, possibly, did not state the various facts which went to establish that offence against the appellant. Section 409 I.P.C. is mentioned in the Schedule referred  to in sub-s. (2) of s. 4 of the Act.  The State Government  was therefore competent to allot the case involving that offence to  the Special Court.  In fact it had to allot the case  to the Special Court in view of the provision of sub-s. (1)  of s.  4  to  the effect that the  offences  specified  in  the Schedule  shall  be  triable by Special  Courts  only.   The

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question therefore really is whether the Special Court could try the appellant 75 for the offence under s. 420 I.P.C. An offence under s.  420 I.P.C. when committed in certain circumstances is also  men- tioned  in  the  Schedule.  It has to be  tried  by  Special Courts  only when it is committed by a public servant  while purporting  to  act  as such.  There is no  doubt  that  the appellant is a public servant.  This has not been disputed. Learned counsel for the appellant, Mr. Mukherjee, has  urged that the expression ’while purporting to act as such  public servant’  be construed to mean ’while purporting to  act  in the discharge of official duties’ and that presentation of a false  bill could not be in the discharge of official  duty. Such  presentation may not be in the discharge  of  official duty, but the question is different and is as to whether the presentation of a false bill was made by the public  servant purporting  to  do so in the discharge of his  duties.   The appellant  did present the false bill purporting to  present it  in the discharge of his duties as a clerk of the  Office of the Sub-Divisional Health Officer who was duly authorised to present bills and cash them. Reliance  is placed on the case reported as Bhajahar  Mondal v. The State or West Bengal(1) in support of the  contention that the appellant should not have been tried by the Special Court  of the offence under s. 420 I.P.C. when the case  was allotted as one involving an offence under s. 409 I.P.C. The facts of that case were very different.  The order allotting the  case mentioned the offence of which the accused was  to be  tried  to be an offence under s. 161 read  with  s.  116 I.P.C.  The order was made on November 27, 1952.   Prior  to this date, on July 28, 1952, abetment of an offence under s. 161 I.P.C. was made a distinct offence under s. 165-A I.P.C. by  the Criminal Law Amendment Act XLVI of 1952  An  offence under  s. 165A was not mentioned in the Schedule to the  Act as it stood on November 27, 1952.  This Court held that  the notification  of the Government making over the case to  the Special  Court was bad as the case made over related  to  no existing  offence.   Such cannot be said of  the  Government notification allotting the case in the present appeal to the Special  Court,  as on the date of such  notification  there existed  an offence under s. 409 I.P.C. and it was  included in the Schedule to the Act. On  the  facts  proved, it is not to  be  doubted  that  the appellant presented the bill for Rs. 1,763-6-0 at the  State Bank  oil October 6, purporting to act as the clerk  of  the Sub-Divisional Health Officer.  The bill presented was on be half of that officer.  The Bank made the payment to him a (1)  [1959] S.C.R. 1276. 76 the  messenger  of that officer duly authorised  to  receive payment  in cash.  It follows that the offence under s.  420 committed  by the appellant would be committed by him  as  a public  servant purporting to act as such, and that  a  case involving this offence also could have been allotted to  the Special  Court  by  the State  Government  for  trial.   The Special Court was therefore competent to try the accused for this offence if the facts proved established it. Apart from the consideration that the offence of cheating of which  the appellant-accused has been convicted fell  within the offences mentioned in the Schedule, the appellant  could be  tried by the Special Court for this offence in  view  of the  proviso  to s. 4. The proviso  authorizes  the  Special Court, when trying a case involving an offence specified  in ’he Schedule to try any offence other than that offence with

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which  the  accused  may be charged at  the  same  trial  in accordance  with  the  provisions of the  Code  of  Criminal Procedure.   The  accused could be charged with  an  offence under s. 420 I.P.C. if he could be tried for this offence at the trial for an offence under s. 409 I.P.C. He could be  so tried in view of is. 236 and 237 Cr. P. C. It is urged for the appellant that the provisions of s.  236 Cr.  P. C. would.apply only to those cases where there be no doubt about the facts which can be proved and a doubt  rises as  to which of the several offences had been  committed  on the proved facts.  Sections 236 and 237 read:               "236.  If a single act or series of acts is of               such  a  nature that it is doubtful  which  of               several offences the facts which can be proved               will  constitute, the accused may  be  charged               with  having  committed  all or  any  of  such               offences,  and any number of such charges  may               be tried at once; or he may be charged in  the               alternative with having committed some one  of               the said offences.                               Illustrations               (a)   A is accused of an act which may  amount               to  theft,  or receiving stolen  property,  or               criminal breach of trust or cheating.  He  may               be   charged  with  theft,  receiving   stolen               property,   criminal  breach  of   trust   and               cheating,  or  he may be charged  with  having               committed theft, or receiving stolen property,               or criminal breach of trust or cheating.               77               237.  If,  in  the case mentioned  in  section               236, the accused is charged with one  offence,               and it appears in evidence that he committed a               different,  offence  for which he  might  have               been  charged’  under the provisions  of  that               section,  he may be, convicted of the  offence               which he is shown to have committed,  although               he was not charged with it.                                Illustration               A  is charged with theft.  It appears that  he               committed  the offence of criminal  breach  of               trust, or that of receiving stolen goods.   He               may  be convicted of criminal breach of  trust               or of receiving stolen goods (as the case  may               be)  though  he  was  not  charged  with  such               offence." The  framing of a charge under s. 236 is, in the  nature  of things,  earlier  than the stage when it can  be  said  what facts  have been proved, a stage which is reached  when  the court  delivers  its judgment.  The power of  the  Court  to frame  various  charges contemplated by s. 236  Cr.   P.  C. therefore   arises   when  it  cannot  be  said   with   any definiteness, either by the prosecutor or by the Court, that such  and such facts would be proved.  The Court has at  the time  of  framing the charges, therefore  to  consider  what different  offences  could be made out on the basis  of  the allegations  made by the prosecution in the complaint or  in the  charge submitted by the investigating agency or by  the allegations  made  by  the  various  prosecution   witnesses examined  prior  to  the framing of the  charge.   All  such possible offences could be charged in view of the provisions of  s. 236 Cr.  P. C. as it can be reasonably said  that  it was  doubtful  as to which of the offences the  facts  which could  be  ultimately proved would  constitute.   The  facts which  must  have  been alleged prior to the  stage  of  the

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framing  of  the charge in the present case must  have  been what  had been stated in the charge-sheet submitted  by  the Investigating Officer, 24-Parganas, which is printed at p. 3 of  the  appear record.  This charge-sheet narrates  in  the column  meant  for the name of  offences  and  circumstances connected with it:               "that  on  the 6th October  1956  Sunil  Kumar               Paul,  a Public servant in the  employment  of               the   office  of  the  Sub-Divisional   Health               Officer, Barrackpore i.e., (clerk) dishonestly               drew  Rs.  1,763-6-0  excluding  Postal   Life               Insurance  deduction  of Rs. 5-10-0  from  the               State  Bank  of India, Barrackpore  Branch  by               submitting a false duplicate Estt.  Pay Bill               78               for   the   office  of  the   said   S.D.H.O.,               Barrackpore.  The money drawn was not credited               to  the  office of the  Sub-Divisional  Health               Officer, Barrackpore." It is practically on these facts that the conviction of  the appellant for an offence under s. 420 I.P.C. has been found- ed.  It follows that the Special Court could therefore  have framed a charge under s. 420 I.P.C. at the relevant time  if it  had  been of the opinion that it  was  doubtful  whether these  facts  constitute an offence under s. 409  I.P.C.  as stated in the charge-sheet or an offence under s. 420 I.P.C. When a charge under s. 420 I.P.C. could have been framed  by the trial Court by virtue of s. 236 Cr.  P.C. that ,Court or the  appellate Court can, in law, convict the  appellant  of this offence instead of an offence under s. 409 I.P.C. if it be  of  the  view  that the offence  of  cheating  bad  been established.    This  would  be  in  accordance   with   the provisions of s. 237 Cr.  P. C In  Begu  v.  The  King Emperor(1)  ss.  236  and  237  were construed by Viscount Haldane thus:               "The  illustration makes the meaning of  these               words quite plain.  A man may be convicted  of               an offence, although there has been no  charge               in  respect of it, if the evidence is such  as               to  establish  a charge that might  have  been               made.  That is what happened here.  The  three               men    who   were   sentenced   to    rigorous               imprisonment  were  convicted of  making  away               with the evidence of the crime by assisting in               taking  away the body.  They were not  charged               with  that  formally, but they were  tried  on               evidence which brings the case under s. 237." This  was approved by this Court in Ramaswamy Nadar  v.  The State of Madras(2).  In this case, the accused, acquitted of an  offence  under s. 420 I.P.C. was convicted by  the  High Court of an offence under s. 403 I.P.C. This Court held that the  High Court could do so.  On facts, however, this  Court did not find the offence under s. 403, proved. In the State of Andhra Pradesh v. Kandimalla Subbaiah(3)  it was held that while a Special Judge appointed under s. 6  of the  Criminal  Law Amendment Act (XLVI of 1952)  had  juris- diction  to  try  cases  under s. 5  of  the  Prevention  of Corruption Act, he could, under s. 7(3) of the Criminal  Law Amendment (1)  52 I.A. 191. (2)  [1958] S.C.R. 739. (3)  [1962] 1 S.C.R. 194, 203. 79 Act try other offences under the Code of Criminal  Procedure if the accused could be charged with them at the same  trial

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and  that therefore the accused could be tried at the  trial for  an offence under s. 5 of the Prevention  of  Corruption Act for an offence under s. 120B read with ss. 466, 467, 420 I.P.C.  and  that  the other accused  who  had  abetted  the commission  of these offences could also be  tried.   Sub-s. (3) of s. 7 of the Criminal Law Amendment Act provided  that when  trying  any case a Special Judge might  also  try  any offence  other than an offence specified in s. 6 with  which the  accused  might, under the Code of  Criminal  Procedure, 1898, be charged at the same trial. In  support  of  his contentions, learned  counsel  for  the appellant  referred to the case reported as Nanak  Chand  v. The State of Punjab.(1) wherein it was stated at p. 1212:               "The provisions of section 236 can apply  only               in  cases  where there is no doubt  about  the               facts  which can be proved but a doubt  arises               as  to  which of several  offences  have  been               committed  on the proved facts in  which  case               any number of charges can’ be framed and tried               or     alternative     charges     can      be               framed...............  In  the  present   case               there  is no doubt about the facts and if  the               allegation  against the appellant that he  had               caused the injuries to the deceased with takwa               was established by evidence, then there  could               be  no  doubt that the offence of  murder  had               been committed." This  does not help the appellant’s contention as the  alle- gations in that case if proved could establish, according to the  Court, the offence of murder only and  therefore  there was  no room for any doubt about the nature of offence  com- mitted and for the application of s. 236 Cr.  P. C. In  that case,  the  appellant  was tried along with  others  for  an offence  under s. 302 read with s. 149 I.P.C.  The  Sessions Judge convicted the appellant and a few others under s.  302 read  with s. 34 I.P.C. The High Court acquitted the  others and  altered the conviction of the appellant to the  offence under s. 302 I.P.C. It was, in this setting, that this Court held  that on the basis of the specific allegation that  the appellant had struck the deceased with a takwa, there  could be  no doubt of that fact constituting an offence  under  s. 302 and not an offence under s. 302 read with s. 149 I.P.C. We therefore hold that at the trial of the appellant for  an offence  under  s. 409 I.P.C., in this case,  the  appellant could have also been charged for an offence under s. 420  I. P. C. in view of s. 236 of the Code of Criminal Procedure. (1) [1955] 1 S.C.R. 1201. 80 It  is then urged for the appellant that under  the  proviso to  s.  4 of the Act, the Special Court can  try  any  other offence  only when the accused is specifically charged  with that offence.  The language of the proviso does not lead  to such a conclusion.  It provides for the trial of the accused for any other offence provided the accused could be  charged with that offence at the same trial under the provisions  of the  Code of Criminal Procedure.  The proviso does  not  say that  the  charge must be framed, though of course,  if  the trial Court itself tries the accused for a certain  offence, it  will ordinarily frame a charge.  The proviso empowers  a Court to try the accused for that offence and has nothing to do  with the power of the trial, court or of  the  appellate Court  to record a conviction for any other offence when  an accused is being tried with respect to an offence  mentioned in the Schedule.  The Court’s power to take recourse to  the provisions  which empower it to record a conviction  for  an

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offence not actually charged, depends on other provisions of the Code and the Act. Section 5(2) of the Act provides that the provisions of  the Code  of  Criminal Procedure so far as they are  not  incon- sistent with the Act, would apply to the proceedings of  the Special Court and for the purposes of these provisions,  the Special  Court  could be deemed to be a Court  of  Sessions. There is nothing in the provisions of s. 237 of the Code  of Criminal Procedure which is inconsistent with the provisions of  the  Act.   Section 237 simply  empowers  the  Court  to convict  an accused of the offence with which he could  have been charged under s. 236, even when he had not been charged with  it.   Section 237 really deals with the  final  orders which  the  Court can pass on a trial of an  accused  for  a certain offence.  In view of the proviso to sub-s. (1) of s. 4, the Special Court could have tried the appellant for  the offence under s. 420 I.P.C. It did not actually try him  for that  offence.   It  was  however open  to  it  and  to  the appellate  Court to convict him of the offence under s.  420 I.P.C.  when  trying for an offence under s. 409  I.P.C.  in view of s. 237 of the Code. It has also been urged for the appellant that the proviso to s. 4 does not give any power to the Special Court to try  an offence which be independent of the offence mentioned in the allotment order.  That is to say, the Special Court, in this case, could have tried the appellant only for such  offences which  will be in some way related to the offence  under  s. 409  I.P.C. It is further urged that the ingredients of  the offence  under s. 420 I.P.C. are absolutely  different  from the ingredients of the offence under s. 409 I.P.C. 81 The  ingredients of two  must be different from one  another and  it is therefore not necessary to consider  whether  the ingredients of the two offences are in any way related.  The Court  has to see, for the purpose of the proviso,’  whether the  accused could be charged with any offence,  other  than the  one referred to in the allotment order, in view of  the provisions  of  the Code.  There is nothing in  the  proviso which  could lead to the construction that  any  limitations other than those laid down by the provisions of the Code  of Criminal Procedure were to affect the nature of the  offence which could be tried by the Special Court. We are therefore of opinion that the Special Court could try the  appellant for the offence under s. 420 I.P.C. and  that therefore   the  High  Court  was  right  in  altering   his conviction from that under s. 409 to s. 420 I.P.C. We have already referred to the statement in the chargesheet that the appellant presented a false bill to the State  Bank and  cashed it.  This allegation is sufficient for the  pur- pose of the offence under s. 420 I.P.C. It was not necessary to  allege  or  to  prove that  the  appellant  himself  had prepared  the false bill.  Such an allegation could  not  be made  in the present case in particular, as the  bill  which was  cashed  on  October  6,  could  not  be  traced.    The presentation of the bill for encashment carries with it  the representation  that it is a genuine bill and therefore  the allegations in the case attributed misrepresentation to  the appellant at the time he presented the bill. It may be mentioned here that if the bill had been a genuine bill,  the offence made out in the present case  would  have been  an offence under s. 409 I.P.C. In  the  circumstances, therefore, the appellant cannot be said to be prejudiced  in his  conviction under s. 420 I.P.C. on account of  the  non- framing  of the charge, and consequent non-trial,  under  s. 420  I.P.C.  In fact, in the circumstances of the  case,  no

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question  of irregularity in the trial arises.  The  framing of  the charge under s. 420 I.P.C. was not essential and  s. 237 Cr. P. C. itself justifies his conviction of the offence under S.  420  if  that  be proved on the  findings  on  the record. The last contention for the appellant was that the  sentence is  severe.   We  do not consider a  sentence  of  1  year’s rigorous imprisonment and a fine of Rs. 2,000 severe. The appeal therefore fails and is dismissed. Appeal dismissed. 82