Banwari Lal Jhunjhunwala& Ors Vs.
Union of India & ANR  INSC 329 (21 November 1962)
DAYAL, RAGHUBAR DAYAL, RAGHUBAR SUBBARAO, K.
CITATION: 1963 AIR 1620 1963 SCR Supl. (2)
Criminal trial-'Every distinct offence',
Meaning ofConspiracy-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.
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.
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
Chunne v. The State, A. I. R. 1954 All. 795,
Held, further that a single charge for the
offence of cheating 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,  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,  2 S. C R. 101 and L. N. Mukherjee v. The State of Madras, 
2 S. C. R. 116, followed.
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 Courtin 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 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 Constrictor
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
certainother 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 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.
1,41,3091in 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 fulfillment 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 the 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 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 requirements 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 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 person 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
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.
"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 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 extremely 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)  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
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
(3) (1905) 10 C. N. 520.
350 held to constitute one offence even
though his asking the 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 separate offence was committed with respect to each of the
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 obtaining 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
connection 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)  2 S. C. R. 101. (2)  2 S. C.