Purushottam Das Dalmia Vs. The State of
West Bengal [1961] INSC 167 (19 April 1961)
DAYAL, RAGHUBAR SUBBARAO, K.
CITATION: 1961 AIR 1589 1962 SCR (2) 101
CITATOR INFO :
R 1961 SC1601 (3) R 1962 SC1821 (36) R 1963
SC1620 (23) E 1977 SC1101 (7)
ACT:
Criminal Trial-jurisdiction-Court trying
criminal conspiracy committed within its territorial jurisdiction, if can try
offences in pursuance of such conspiracy committed without--Code of Criminal
Procedure, 1898 (Act V of 1898), SS. 177, 335, 339(a) Indian Penal Code, 1860
(Act XLV of 1860), SS. 120 B, 466, 471.
HEADNOTE:
The appellant was convicted by the Court of
Session, High Court, Calcutta, of offences under S. 120B read with S. 471 and
S. 471 read with S. 466 of the Indian Penal Code in respect of an import
licence. His appeal against the order of conviction and sentence passed by the
trial judge was summarily dismissed by the High Court. Although the conspiracy
was entered into at Calcutta the offences of using the forged documents as
genuine were committed at Madras. It was contended on behalf of the appellant
in this Court that the said offences having been committed outside the
territorial jurisdiction of the Calcutta Courts, they had no jurisdiction to
try the offences under S. 471 read with S. 466 of the Indian Penal Code, even
though committed in pursuance of the conspiracy and in course of the same
transaction.
Held, that the desirability of trying all the
overt acts committed in pursuance of a conspiracy together is obvious and SS.
177 and 239 of the Code of Criminal Procedure, properly construed, leave no
manner of doubt that the court which has the jurisdiction to try the offence of
criminal conspiracy has also the jurisdiction to try all the overt acts
committed in pursuance of it even though outside its territorial jurisdiction.
jiban Banerjee v. State, A.I.R. 1959 Cal. 500, overruled.
Pritam Singh v. The State of Punjab, A.I.R. 1956 S.C. 415, referred to.
Babulal Choukhani v. The KingEmperor, (1938)
L.R. 65 I.A.
158, relied on.
It is evident from the relevant provisions of
the Code of Criminal Procedure that of the two types of jurisdiction of a
criminal court, namely, (1) that of trying a particular offence and (2) its
territorial jurisdiction, while the former goes to the root of the matter and
any transgression of it renders the entire trial void, the latter is not of a peremptory
character and leaves the place of trial open.
Assistant Sessions judge, North Arcot v.
Ramaswami Asari, (1914) I.L.R. 38 Mad. 779, referred to.
Although SS. 235 and 239(a) of the Code of
Criminal Procedure do not expressly so provide, there can be no doubt that 102
they contemplate the joint trial of offences and persons mentioned therein in a
court whether or not all the offences to be tried by it are committed within
its territorial jurisdiction, the only limitation being that the offences must
have been committed in the course of the same transaction. Section 177 of the
Code, therefore, does not control S. 239.
No presumption as to the approval of the
Legislature of a particular construction of a statute can be drawn from the
absence of any statutory modification of its provisions unless there is a
consistent series of decisions in favour of that construction.
Case-law discussed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 51 of 1959.
Appeal by special leave from the judgment and
order dated May 16, 1958, of the Calcutta High Court in Criminal Appeal No. 2
of 1958.
A. S. B. Chari, K. C. Jain and B. P.
Maheshwari, for the appellant.
N. C. Chatterjee, H. R. Khanna and D. Gupta,
for respondent.
1961. April 19. The Judgment of the Court was
delivered by RAGHUBAR DAYAL, J.-This appeal, by special leave, is from the
order of the Calcutta High Court dated May 16, 1958, summarily dismissing the
appeal of the appellant from the order of the learned Single Judge of the High
Court convicting him on jury trial of offences under s. 120-B read with s. 471,
Indian Penal Code, and on two counts under s. 471 read with s. 466, Indian
Penal Code, with respect to two documents. L. N. Kalyanam, who was also tried
at the same trial and convicted of the offences under S. 120-B read with s.
471, Indian Penal Code, two counts under s. 466, Indian Penal Code, and of the
offence under S. 109, read with s. 471, Indian Penal Code, did not appeal
against his conviction.
The brief facts of the prosecution case are
that the appellant Purushottamdas Dalmia was one of the partners of the firm
known as Laxminarayan Gourishankar which had its head office at Gaya and branch
at Calcutta. The Calcutta branch was located at 19, 103 Sambhu Mallick Lane. On
April 26, 1952, the appellant applied for a licence for importing rupees one
crore worth of art silk yarn. On May 2, 1952, the Joint Chief Controller of
Imports, Calcutta, issued a provisional licence. In accordance with the rules,
this licence was to be got confirmed within two months by the Deputy or Chief
Controller of Imports and on such confirmation it was to be valid for a period
of one year. The licence was to be treated as cancelled in case it was not got
confirmed within two months of the date of issue. This provisional licence was
not confirmed within two months. The appellant was duly informed of the refusal
to confirm the licence. The appellant's appeal against the refusal to confirm
the licence was dismissed in September 1952. The provisional licences issued
were returned to the appellant. The letter communicating the dismissal of the
appeal and the return of the licence was issued from the office of the Joint
Chief Controller of Imports on September 26, 1952.
The letter dated September 29, 1952, from the
office of the Chief Controller of Imports, New Delhi, informed the appellant
with reference to the letter dated September 4, 1952, that instructions had
been issued to the Joint Chief Controller of Imports and Exports, Calcutta, for
reconsideration of such cases and that he was advised to contact that authority
for further action in the matter.
The appellant rightly, did not appear to take
this letter to mean that the order of rejection of his appeal was still under
further consideration. He did not take any steps to contact the Joint Chief
Controller of Imports and Exports on the basis of this letter. Instead, he
applied on October 7, 1952, for the return of correspondence. That
correspondence was returned to him on October 9, 1952.
Nothing happened up to March 31, 1953, on
which date the appellant wrote to the Chief Controller of Imports, New Delhi, a
long letter expressing his grievance at the action of the Joint Chief
Controller of Imports and Exports, Calcutta, and requesting for a sympathetic
decision. The Chief Controller of Imports and Exports, by his letter dated
April 20,1953, informed the 104 appellant that the order of the Joint Chief
Controller of Imports and Exports could not be revised for the reasons
mentioned in that letter. This letter gave the wrong number of the appellant's
firm. It mentioned its number as '16' instead of the correct number '19'. In
other respects the address of this letter was correct. The appellant states
that he did not receive this letter.
In August 1953, the appellant met Kalyanam at
Calcutta.
Kalyanam told the appellant that he could get
the licence validated through the good offices of one of his acquaintances,
Rajan by name, at Delhi. Both these persons came to Delhi in August, 1953, and
visited Rajan. The appellant made over the file containing the licences to
Kalyanam who in his turn made over the same to Rajan. Two or three days later
Kalyanam returned the licences containing the alleged forged endorsements to
the appellant.
The forged endorsements related to the
confirmation of the licence and its re-validation till May 2, 1954. The
confirmation endorsement was purported to be dated July 2, 1952, and the
re-validating one purported to be dated April 25, 1953.
Thereafter, orders were placed on the basis
of the revalidated licence and when the goods arrived attempt was made to clear
them at Madras. The clearing office at Madras suspected the genuineness of the
confirmation and revalidating endorsements and finding the suspicion confirmed,
made over the matter to the Police. As a result of the investigation and
preliminary enquiry, the appellant and Kalyanam were committed to the High
Court for trial.
Eight charges were framed. The first charge
related to the criminal conspiracy between the two accused and was as follows:
"That the said (1) Purushottamdas Dalmia
and (2) L. N. Kalyanam along with the person or persons name or names unknown
between the months of April and December one thousand nine hundred and fifty
three at Calcutta, Howrah, Delhi, Madras and other places were parties to a
criminal conspiracy to commit an offence punishable with rigorous imprisonment
for two years or upwards, to wit, an 105 offence of forgery by certificate or
endorsement of confirmation and an endorsement of validation of the Import
Trade Control Licence being licence no. 331913/48 (the Exchange Control Copy
whereof is Ext. 5 and the Customs Copy whereof is Ext. 6) purporting to be made
by public servant, to wit, the officers and staff of the Chief Controller of
Imports and Exports and/or the offence of fraudulently or dishonestly using the
aforesaid licence containing the aforesaid forged certificates and endorsements
as to the confirmation and validation thereof knowing or having reason to
believe the same to be forged documents and thereby they the said (1)
Purushottamdas Dalmia and (2) L. N. Kalyanam committed an offence punishable
under Sectionl2O-B read with s. 466 and/or section 471 read with s. 466 of the Indian
Penal Code within the cognizance of this Court." Charges Nos. 2, 3 and 4
were with respect to the false endorsements on the copy of the licence Ext. 5. The
second charge was under s. 466, Indian Penal Code, against Kalyanam alone and
charges Nos. 3 and 4 were against the appellant for abetting the offence of
forgery by Kalyanam and of using the forged document as genuine. Charges 5, 6
and 7 related to corresponding matters with respect to the licence copy Ext. 6.
The eighth charge was against Kalyanam alone and was for his abetting the
appellant in his committing the offence of fraudulently and dishonestly using
as genuine the Customs Copy of the said licence, Ext. 6.
The jury returned a verdict of 'not guilty'
with respect to charges Nos. 3 and 6 and also with respect to the charge of
conspiracy under s. 120-B read with s. 466, Indian Penal Code. The jury
returned a verdict of 'guilty' against the appellant on the charge of
conspiracy under s. 120-B read with s. 471, Indian Penal Code and the other
charges Nos. 4 and 7.
It is not disputed, and cannot be disputed,
that forgeries were committed in the two documents Exts. 5 and 6. The following
points were raised by learned counsel for the appellant:
14 106 (i) The offences of using the forged
documents as ,genuine were committed at Madras and therefore the Courts at
Calcutta had no jurisdiction to try these offences under s. 471 read with s.
466, Indian Penal Code.
(ii) Alternative conspiracies could not be
charged as they must be the result of different agreements between the
conspirators.
(iii) The learned Judge misdirected the jury
in putting certain matters before it in the form he had done. The chief
criticisms in this connection were that (a) the accused must have known from
the ante-dating of the confirmation endorsement that the re-validation of the
licence was a forgery; (b) even if the proper officer of the Department had
signed the re-validation, it would still be a forgery when it was ante-dated;
(c) the letter of the Chief Controller of Imports and Exports dated April 20,
1953, though wrongly addressed, must have reached the appellant;
(d) the learned Judge expressed his opinions
strongly and this could have unduly affected the mind of the jury and forced it
to come to the same conclusions.
The jurisdiction of the Calcutta High Court
to try an offence of criminal conspiracy under s. 120-B, Indian Penal Code, is
not disputed. It is also not disputed that the overt acts committed in
pursuance of the conspiracy were committed in the course of the same
transaction which embraced the conspiracy and the acts done under it. It is
however contended for the appellant, in view of s. 177 of the Code of Criminal
Procedure, that the Court having jurisdiction to try the offence of conspiracy
cannot try an offence constituted by such overt acts which are committed beyond
its jurisdiction and reliance is placed on the decision in Jiban Banerjee v.
State (1). This case undoubtedly supports the appellant's contention. We have
considered it carefully and are of Opinion that it has not been rightly
decided.
The desirability of the trial, together, of
an offence of criminal conspiracy and of all the overt acts committed in
pursuance of it, is obvious. To establish the offence of criminal conspiracy,
evidence of the (1) A.I.R. 1959 Cal. 5oo.
107 overt acts must be given by the
prosecution. Such evidence will be necessarily tested by cross-examination on
behalf of the accused. The Court will have to come to a decision about the
credibility of such evidence and, on the basis of such evidence, would
determine, whether the offence of criminal conspiracy has been established or
not. Having done all this, the Court could also very conveniently record a
finding of 'guilty' or 'not guilty' with respect to the accused said to have
actually committed the various overt acts. If some of the overt acts were
committed outside the jurisdiction of the Court trying the offence of criminal
conspiracy and if the law be that such overt acts could not be tried by that
Court, it would mean that either the prosecution is forced to give up its right
of prosecuting those accused for the commission of those overt acts or that
both the prosecution and the accused are put to unnecessary trouble inasmuch as
the prosecution will have to produce the same evidence a second time and the
accused will have to test the credibility of that evidence a second time. The
time of another Court will be again spent a second time in determining the same
question. There would be the risk of the second Court coming to a different
conclusion from that of the first Court. It may also be possible to urge in the
second Court that it is not competent to come to a different conclusion in view
of what has been said by this Court in Pritam Singh v. The State of Punjab (1):
"The acquittal of Pritam Singh Lohara of
that charge was tantamount to a finding that the prosecution had failed to
establish the possession of the revolver Ex. P-56 by him.
The possession of that revolver was a fact in
issue which had to be established by the prosecution before he could be
convicted of the offence with which he had been charged.
That fact was found against the prosecution
and having regard to the observations of Lord Mac Dermoidal quoted above, could
not be proved against Pritam Singh Lohara. in any further proceedings between
the Crown and him." (1) A.I.R. 1956 S. C. 415, 422.
108 In these circumstances, unless the
provisions of the Code of Criminal Procedure admit of no other construction
than the one placed upon them by the Calcutta High Court, they should be
construed to give jurisdiction to the Court trying the offence of criminal
conspiracy to try all the overt acts committed in pursuance of that conspiracy.
We do not find any compelling reasons in support of the view expressed by the
Calcutta High Court.
It is true that the Legislature treats with
importance the jurisdiction of Courts for the trial of offences.
Jurisdiction of Courts is of two kinds. One
type of jurisdiction deals with respect to the power of the Courts to try
particular kinds of offences. That is a jurisdiction which goes to the root of
the matter and if a Court not empowered to try a particular offence does try
it, the entire trial is void. The other jurisdiction is what may be called
territorial jurisdiction. Similar importance is not attached to it. This is
clear from the provisions of ss. 178, 188, 197(2) and 531, Criminal Procedure
Code. Section 531 provides that:
"No finding, sentence or order of any
Criminal Court shall be set aside merely on the ground that the inquiry, trial
or other proceeding in the course of which it was arrived at or passed, took
place in a wrong sessions division, district, sub-division or other local area,
unless it appears that such error has in fact occasioned a failure of
justice." The reason for such a difference in the result of a case being
tried by a Court not competent to try the offence and by a Court competent to
try the offence but having no territorial jurisdiction over the area where the
offence was committed is understandable. The power to try offences is conferred
on all Courts according to the view the Legislature holds with respect to the
capability and responsibility of those Courts. The higher the capability and
the sense of responsibility, the larger is the jurisdiction of those Courts
over the various offences.
Territorial jurisdiction is provided just as
a matter of convenience, keeping in mind the administrative point of view with
respect to the work of a particular Court, the convenience of the accused 109
who will have to meet the charge levelled againt him and the convenience of the
witnesses who have to appear before the Court. It is therefore that it is
provided in s. 177 that an offence would ordinarily be tried by a Court within
the local limits of whose jurisdiction it is committed.
It was said in Assistant Sessions Judge,
North Arcot v. Ramaswami Asari (1):
"The scheme of chapter XV, sub-chapter
(A) in which sections 177 to 189 appear, seems to me to be intended to enlarge
as much as possible the ambit of the sites in which the trial of an offence
might be held and to minimise as much as possible the inconvenience which would
be caused to the prosecution, by the success of a technical plea that the
offence was not committed within the local limits of the jurisdiction of the
trying Court." It is further significant to notice the difference in the
language of s. 177 and s. 233. Section 177 simply says that ordinarily every
offence would be tried by a Court within the local limits of whose jurisdiction
it was committed. It does not say that it would be tried by such Court except
in the cases mentioned in ss. 179 to 185 and 188 or in cases specially provided
by any other provision of law. It leaves the place of trial open. Its
provisions are not peremptory.
There is no reason why the provisions of ss.
233 to 239 may not also provide exceptions to s. 177, if they do permit the
trial of a particular offence along with others in one Court. On the other
hand, s. 233, dealing with the trial of offences, reads:
"For every distinct offence of which any
person is accused there shall be a separate charge, and every such charge shall
be tried separately, except in the cases mentioned in ss. 234, 235, 236 and
239." The language is very peremptory. There is a clear direction that
there should be a separate charge for every distinct offence and that any
deviation from such a course would be only in cases mentioned in ss. 234, 235,
236 and 239.
It is true that it is not stated in express
terms (1) (1914) I.L R. 38 Mad, 779, 782, 110 either in s. 235 or s. 239, that
their provisions would justify the joint trial of offences or of persons
mentioned therein in a Court irrespective of the fact whether the offences to
be tried were committed within the jurisdiction of that particular Court or
not. But such, in our opinion, should be the interpretation of the provisions
in these two sections. The sections do not expressly state that all such
offences which can be charged and tried together or for which various per. sons
can be charged and tried together must take place within the jurisdiction of
the Court trying them. The provisions are in general terms. Sub-sections (1) to
(3) of s. 235 provide for the offences being charged with and tried at one
trial and therefore provide for the trial of those offences at one trial in any
Court which has jurisdiction over any of the offences committed in the course
of the same transaction. The illustrations to s. 235 also make no reference to
the places where the offences were committed. In particular, illustration (c)
can apply even when the offences referred to therein were committed at places
within the territorial jurisdiction of different Courts. Similarly, s. 239 provides
for the various persons being charged and tried together for the same offence
committed in the course of the same transaction are accused of different
offences committed in the course of the same transaction. Such offences or
persons would not be tried together if some of the offences are committed by
some of them outside the jurisdiction of the Court which can try the other
offences, if the contention for the appellant be accepted and that would amount
to providing, by construction. an exception for these sections.
As ss. 235 and 239 of the Code are enabling
sections, the legislature, rightly, did. not use the expression which would
have made it incumbent on the Court to try a person of the various offences at
one trial or to try various persons for the different offences committed in the
course of the same transaction together. The omission to make such peremptory
provision does not necessarily indicate the intention of the legislature that
the Court having jurisdiction to try certain offences cannot try an offence
committed 111 in the course of the same transaction, but beyond its
jurisdiction.
No definite conclusion about the approval of
the legislature to the interpretation put on the provisions of ss. 235 and 239,
Criminal Procedure Code, by the Calcutta High Court in Bisseswar v. Emperor (1)
or by the Madras High Court in re: Dani (2) and in Sachidanandam v. Gopala
Ayyangar (3) can be arrived at when it is found that there had been some cases
which expressed the contrary view. The case law having a bearing on the
question under determination is, however, meagre.
In Gurdit Singh v. Emperor (4) the conspiracy
to murder a person was entered into in the district of Montgomery in Punjab and
the attempt to murder that person in pursuance of that conspiracy was made
within the jurisdiction of the Magistrate at Roorkee in the United Provinces.
Broadway,.
J., said:
"It appears that, rightly or wrongly, an
allegation has been made that the abetment by conspiracy or by instigation took
place, in the Montgomery District, and that, therefore, the case can be tried
either at Roorkee or in Montgomery. Section 180, Criminal Procedure Code, is
clear on this point and no further discussion is needed." In re:
Govindaswami (5) a person murdered A and B, one after the other, in the same
night. The houses of A and B were divided by a street which formed the boundary
between two districts. The accused was sent up for trial for the murders of A
and B to the various Courts having Jurisdiction to try the offences of the
murder of A and of the murder of B. The learned Judges said:
"There is a further aspect of the case
on which we would like to make some observations.
These two cases of alleged murder by the same
appellant one after the other that same night brought as they were into the
same confession should obviously have been tried by one and the same (1) A I.R.
1924 Cal, 1034.
(2) A.I.R. 1936 Mad. 317.
(3) (1929) I.L.R. 52 Mad. 991, 994.
(4) (1917) 13 Crl. L.J. 514. 517.
(5) A I. R. 1953 Mad372, 373.
112 Sessions Judge. The street between the
houses of Govindan Servai and Malayappa Konan appears however to have been a
boundary between the districts of Tiruchirapalli and Tanjore and one murder was
committed in the jurisdiction of the Sessions division of Tiruchirapalli and
the other in the jurisdiction of the Sessions division of Tanjore. This appears
to have been the only reason why two separate charge sheets were laid in
respect of these murders.
The learned Public Prosecutor agrees that
there was no impediment to the two murders being tried together under s.
234(1), Cr. P. C., and it is indeed obvious that one Court should have dealt
with both these murders." The two cases could not be tried by any one of
the two Sessions Courts if the provisions of s. 234, Criminal Procedure Code,
were subject to the provisions of ss. 177 to 188 with respect to the
territorial jurisdiction of Criminal Courts.
In Sachidanandam v. Gopala Ayyangar (1)
Odgers, J., relying on the case reported as Bisseswar v. Emperor (2) held that
unless the abetment of an offence took place within its territorial
jurisdiction, a Court could not avail itself of the provisions of s. 239 to try
such abetment along with the principal offers. He observed:
"I am doubtful about the matter, I must
say;
but giving the best consideration I can to
it, and with this expression of opinion of the Calcutta High Court, I am
inclined to think that jurisdiction, being the foundation of the charge, is to
be imported or understood as present in all the subsequent procedure set out in
the Code; and if that is so, it clearly must govern s. 239." The approval
of the Legislature of a particular construction put on the provisions of an Act
on account of its making no alteration in those provisions is presumed only
when there had been a consistent series of cases putting a certain construction
on certain provisions.
(1) (1929) I.L.R. 52 Mad. 991, 994(2) A.I.R.
1924 Cal. 1034.
113 Lastly, an implied support to the view we
are inclined to take is to be obtained from the observations of the Judicial
Committee in Babulal Choukhani v. The King Emperor ( 1):
"Nor is there any limit of number of
offences specified in s. 239(d). The one and only limitation there is that the
accusation should be of offences 'committed in the course of the same
transaction'. Whatever scope of connotation may be included in the words 'the
same transaction', it is enough for the present case to say that if several
persons conspire to commit offences, and commit overt acts in pursuance of the
conspiracy (a, circumstance which makes the act of one the act of each and all
the conspirators), these acts are committed in the course of the same
transaction, which embraces the conspiracy and the acts done under it. The
common concert and agreement which constitute the conspiracy serve to unify the
acts done in pursuance of it.,, This indicates that the only limitation on the
jurisdiction of the court to charge and try together various persons in
pursuance of the provisions of cl. (a) of s. 239, Criminal Procedure Code, is
that the accusation against those persons should be of offences committed in
the course of the same transaction. It cannot be disputed that the accusation
against the accused with respect to the overt acts committed by them in pursuance
of a conspiracy is with respect to offences committed in the course of the same
transaction and that therefore persons accused of these offences can be tried
together at one trial in pursuance of the provisions of el. (a) of s. 239. We
therefore hold that the Calcutta Court had jurisdiction to try the appellant of
the offences under s. 471 read with s. 466, Indian Penal Code, even though
those offences, in pursuance of the conspiracy, were committed at Madras.
The second contention for the appellant is
really to the effect that the appellant was charged with two conspiracies in
the alternative and that such a charge (1) (1938) L.R. 65 I.A. 158,175, 176.
15 114 is unwarranted by law. This, however,
is not the correct interpretation of the charge of conspiracy framed against
the appellant. The charge was one of conspiracy, it being a conspiracy to
commit an offence punishable with rigorous imprisonment for two years or
upwards. The particular offence to be committed was described in the
alternative.
One was to commit an offence of forgery and
to use the forged document and the other was the offence of fraudulently or
dishonestly using the licence containing the forged certificates and endorsements.
The expression 'and/or' in the first charge simply meant that the offences they
had conspired to commit consisted either of the offence to commit forgery and
subsequently to use the forged document as genuine or the object was merely to
use the licence with forged endorsements even though there was not any
conspiracy to commit forgeries in the licences. In other words, the charge was
that the appellant and Kalyanam entered into a conspiracy to commit offences
punishable with rigorous imprisonment for two years or upwards and that the
offences contemplated to include the offence of using the licence with forged
endorsements and may also include the offence of forging the licence. Thus
there was no case of two alternative conspiracies. The conspiracy was one and
it being doubtful what the facts proved would establish about the nature of
offences to be committed by the conspirators, the charge illustrated the
offence in this form. In his charge to the jury the learned Judge said at page
14:
"In this case from the circumstances, it
may not be very clear whether they actually made an agreement among themselves
to do or cause to be done forgery of the document or whether they merely agreed
to use it as a genuine document knowing that it was a forged document.
Therefore, the charge is in the alternative that either they agreed among
themselves to do or cause to be done the forgery of this document or rather,
the forgery of the endorsements of confirmation or revalidation; or in the
alternative, they agreed among themselves regarding user of such a forged
document knowing 115 that it is forged. So both and/or' is mentioned in the
charge, either they agreed to commit forgery or they agreed to use it knowing
it is forged or they agreed to do both, both to commit forgery and use it
knowing it to be a forged document." Such a charge is justified by the
provisions of s. 236 of the Code. We are therefore of the opinion that the
charge of conspiracy does not suffer from any illegality.
We have carefully considered all that has
been said in connection with the alleged mis-directions in the charge to the
jury and are of opinion that the charge does not suffer from this defect. The
Judge has at places expressed in unequivocal language what appears to him to be
the effect of certain pieces of evidence. But that, in our opinion, has not
been in such a setting that it be held that the jury must have felt bound to
find in accordance with that opinion. The Judge has, at various places, stated
that the jury was not bound by his opinion, that it had to come to its own
conclusion on questions of fact and that it was the function of the jury to
decide all questions of fact.
There is nothing wrong in telling the jury
that even if the endorsements had been made by the proper departmental officer
and they were ante-dated, forgery would have been committed. That is the
correct proposition of law. The ante-dated document would be a false document.
Knowledge of ante-dating the endorsements, naturally conveyed knowledge of the
commission of forgery.
The mistake in the letter dated April 20,
1953, from the Chief Controller of Imports and Exports, is not such as to lead
to the conclusion that the letter could not have been delivered to the proper
addressee. The appellant's firm is located at 19, Sambhu Mallick Road and the
address of this letter gave the number as 16. Shop No. 16 could not have been
at much distance from Shop No. 19. The postman delivering letters at the two
shops must be the same.
Postmen get to know the regular addressees by
their names and ordinarily locate them even if there be some slight error or
even omission in the address. The letter 116 addressed to the appellant's firm
is not proved to have returned to the dead-letter office or to the Chief Controller
of Imports and Exports. If it was delivered by the postman at the Shop No. 16,
ordinary courtesy requires that shop would have sent over the letter to the
neighboring Shop No. 19. The appellant's conduct in not taking any action to
find out what was the result of his representation to the Chief Controller of
Imports and Exports is consistent with the view that he did receive the reply
of the Chief Controller of Imports and Exports. In the circumstances, an
expression of opinion that the letter would have reached the appellant cannot
be said to amount to a misdirection.
The learned Judge is perfectly justified to
ask the jury to take into consideration the probabilities of a case, where no
definite evidence, in connection with an incidental matter, exists.
We do not consider that the contentions
raised do amount to misdirection’s.
In view of the above, we, see no force in
this appeal and accordingly dismiss it.
Appeal dismissed.
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