Anil Kumar Bose Vs. State of Bihar
 INSC 89 (10 April 1974)
KHANNA, HANS RAJ
CITATION: 1974 AIR 1560 1974 SCR (3) 902 1974
SCC (4) 616
Penal Code---S. 420--Guilty intention an
essential ingredient of offence of cheating--mens rea.
The appellants. an accountant and a cashier,
along with another person, were accused of preparing false pay bills and
disbursing the amounts drawn from the treasury Lo fictitious persons. The
Sessions Judge convicted and sentenced them under S. 420 read with s. 34,
I.P.C. On appeal, the High Court confirmed the convictions and sentences passed
against both of them.
On further appeal to this Court, Allowing the
HELD : For the purpose of holding the
appellants guilty the evidence adduced must establish beyond reasonable doubt
means rea on their part. [904 E] On the evidence all that could be said at the
highest was that it was a failure on the part of the accountant to perform his
duties or to observe the rules of procedure laid down in the duty chart in a
proper manner and may therefore be an administrative lapse on his part.
Without, however, anything more it will not be correct to impute guilty
intention which is an essential ingredient of the offence of cheating. [905 D] The
material before the High Court together with the significant observations made
by it against the Superintendent and Deputy Superintendent do make out a case
for giving benefit of reasonable doubt to the cashier as well. It is not
possible to hold that the requisite means rea had been established against him.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal Nos. 223 and 224 of 1970. Appeals by Special Leave from the Judgment and
Order dated the 4th August 1970 of the Patna High Court in Crl. Appeals Nos.
213 and 236 of 1967.
S. Balakrishnan, N. M. Ghatate and B.
Chakravarti, for the appellant (in Crl. A. No. 223/70).
Nuruddin and S. M. Singh for the appellant
(in Crl. A. No.224 of 1970).
R. C. Prasad for the Respondent (in Crl. A.
D. Gobrurdhan for the Respondent (in Crl. A.
The Judgment of the Court was delivered by
GoswAmI, J. These appeals by special leave are directed against the judgment of
the Patna High Court convicting the two appellants and another under section
420/34, Indian Penal Code. They have each been sentenced. to rigorous
imprisonment for one year and a fine of Rs. 200/-, 'in default regorous
imprisonment for six months. Dr. Rama Shankar (PW 14) and Dr. Ram Balak Singh
(PW 4) were 90 3 House Physicians. and Dr. Sailendra Kumar (PW 5) was a House
Surgeon in the Durbhanga Medical College Hospital. Hospital House Surgeons or
House Physicians are usually appointed for different sections of the Hospital
by the Superintendent of the Hospital for a period of six months, January to
June and July to December and their monthly emoluments total Rs.125/-; Rs. 75/towards
stipend and Rs. 50, as diet allowance.
The prosecution case is that for the month of
March 1963 a fictitious pay bill for Rs. 125/ was prepared in the name of Dr.
Rama Shankar, who had worked only for six months up to December, 1962 and had
made over charge in January 1963. A similar pay bill for March 1963 was
prepared for Dr.
Sailandra Kumar, who was working in Ear, Nose
and Throat Department, but this bill was prepared in the Pediatric Section.
Likewise another fictitious pay bill for the same month was prepared in the
name of Dr. Ram Balak Singh, although he never joined that post and he was
substituted by Dr. Rana Chandraketu. The amounts of the three aforesaid pay
bills were drawn from the Treasury and disbursed to fictitious persons. The
letters of appointment and the joining reports of the various House Staff were
as usual sent to the Accounts Department for preparation of the pay bills.
Yogesh Prasad Thakur was the Bill Clerk, who
has not appealed against his conviction. The Accountant, Raghunath Prasad and
the Cashier, Anil Kumar Bose, are the two appellants before us. Criminal Appeal
No. 223 of 1970 is by Anil Kumar Bose and Criminal Appeal No. 224 of 1970 is by
Raghunath Prasad. Both these appeals are heard together and are disposed of by
this common judgment.
According to the rules of procedure, such pay
bills used to be prepared by the Bill Clerk, checked by the Accountant and then
placed for signature before the Superintendent of the Hospital. After his
signature, the bills were handed over to the peon of the Hospital who took
these to the Treasury and after collecting the money there from made over the
same to the Cashier, who made relevant entries in his cash Book and other
connected registers. Then, in accordance with the Acquittance Roll, the money
used to be disbursed to the various persons who signed in token of receipt of
the amounts on the Acquaintance Roll. After disbursement of the money, a
certificate used to be given by the Deputy Superintendent to the effect that
the money had been disbursed in his presence.
Some time in may 1963, in the course of
preparation of the Annual Establishment Return for submission to the Accountant
General, Bihar, the Head Clerk, Bhola Nath Jha (PW 3) noticed that in the
Acquittance Roll for March 1963, there were names of more Housemen than the
After enquiry by several officers at
different levels, an information was lodged to the police who ultimately
submitted a charge-sheet against the two appellants and Yogesh Prasad Thakur,
the Bill Clerk. The accused were tried by 904 the Court of Sessions ending in
their conviction under section 420/ 34 I.P.C. The High Court or appeal affirmed
the conviction and sentence. Hence these appeals by special leave.
We are not concerned with the conviction of
the Bill Clerk, Yogesh Prasad Thakur, who accepted the same.
The defence of the Accountant, Raghunath
Prasad, is that these bills did not pass through him and so he had no knowledge
about the correctness of the same and they were directly put up before the
Superintendent of the Hospital for his signature and he signed them. Thereafter
these were sent to the Treasury for encashment and after that he had nothing to
do with those pay bills.
The defence of the Cashier, Anil Kumar Bose,
is that he has nothing to do with the preparation of the bills. He came into
the picture when the entire cash of these bills and other bills was handed over
to him and he disbursed the money in accordance with the Acquittance Roll, as
prepared by the Accounts Department. He did not know these three Doctors
personally and he was not guilty of cheating.
Since the Bill Clerk's conviction stands, it
may be accepted that he prepared the three fictitious bills with a view to
cheat the Government.
We are now concerned whether the two
appellants also are guilty under section 420/34 I.P.C.
For the purpose of holding them guilty, the
evidence adduced must establish, beyond reasonable doubt, mens rea on their
part. We will, therefore, consider the case of each appellant from that aspect.
With regard to the Accountant, Raghunath Prasad, the evidence relied upon by
the High Court for its conclusion of guilt of this appellant may be set out in
its own words :
"Ext. 1 is the duty chart of the
The first item of this chart is 'Sole in
charge of accounts and to exercise general supervision on all staff working
under him for the efficient working of the Accounts Section'. The third item of
this chart is 'To complete the Bill Book and get it checked and signed by the
Dy. Superintendent'. I must point out that this duty has not been performed by
the Accountant in the case of these disputed bills. The fifth item of his duty
is 'To put up all salary bills prepared by the dealing assistant daily before
the Superintendent'. The Superintendent, PW 9 Dr.Safdar Ali Khan has stated
that the Accountant is responsible for keeping the Acquittance Roll in
order.... It is stated in paragraph 21 that the Accountant should check the
bill and then place for signature of higher officers.
of Course, it is in evidence that the
Superintendent had asked the office to place all bills for his signature in the
office on his table and no clerk should stand there when he 905 would sign on
those bills. This direction is clearly against item No. 5 of the Duty Chart of
the Accountant. I do not know for what purpose he made this innovation in the
procedure. But this procedure would not absolve the Accountant of his duty to
check.....the pay bills and other bills before sending them to
the.....Superintendent it is further interesting to note that..the disputed pay
bills do not bear the initial or signature of....the Accountant below the
signature of the Superintendent As the evidence shows, the Accountant did not
purposely sign on these forged bills with ,a view to get himself absolved of
the responsibility ,As a matter of course, the work of this Accountant was to
get pay bills prepared, check them and then put up before the Superintendent
for his signature so that after obtaining his signature the bills may be sent
to the treasury for encashment".
On the above evidence at the highest it was a
failure on the part of the Accountant to perform his duties or to observe the
rules of procedure laid down in the Duty Chart in a proper manner and may,
there-fore, be an administrative lapse on his part about which we are not
required to pronounce any opinion in this case. Without, however, anything more
we do not think it will be correct to impute to this appellant a guilty
intention which is one of the essential ingredients of the: offence of cheating
under section 420 I.P.C. Apart from this, the High Court is not correct and
indeed had no material to hold that "the Accountant did not purposely sign
on these forged bills with a view to get himself absolved of the
responsibility". The evidence of the Superintendent, which is extracted
above, runs counter to that conclusion.
With regard to the other appellant, the
Cashier Anil Kumar Bose, we may read what the High Court has relied upon for
"Coming to the case of the Cashier, I
find that his Duty Chart is Ext. 1/1. His first duty is 'Daily. receipt and
disbursement of cash'. A note in this Duty Chart shows 'To be solely responsible
for the performance of above duties'. . . . The Deputy Superintendent (PW 6)
has stated in paragraph 8 of his deposition that it was the duty of the Cashier
to see that the payment was made to the correct or right person. of course, in
the Duty Chart it is not written in so many words.
But as his duty was to disburse the money,
this disbursement was to be made in a bona fide manner, that is,, after due
enquiry about the payee, if the latter is not known to the Cashier. In case of
P.W. 5 one payment was made on the 5th April for the month of March and the
next payment to a person of that name was made on 10th April, that is, only
after five days. The Cashier ought to have detected this if his case of bona
fides is to be accepted. The argument advanced on his behalf is that it was not
possible for him to know all the Housemen. It may be so, but he cannot be
allowed to take shelter that he paid the money without ascertaining who was the
real recipient. It was also the906 practice to make the payment in presence of
the Deputy ,Superintendent and then to take his initial below the seal, that,
is, rubber stamp. In these disputed cases no such signature was obtained of the
Deputy Superintendent, and .there is no explanation as to why this was not
done. The Deputy Superintendent has clearly stated that against these disputed
entries his signature was not obtained and no rubber .stamp concerning the
payment was affixed.... In my opinion, therefore, the, Cashier also cannot
claim to be absolved of the charge against him. It was his duty to have seen
that the payment was made to the correct person. It is not clear in evidence
that these payments were made in presence of the Deputy Superintendent of the
said Hospital. The witnesses have spoken only about the usual practice".
The learned Judge of the High Court made a
significant observation in the following terms "I am constrained to remark
that both, the Superintendent and the Deputy Superintendent have shown
carelessness in their duties and these things came to happen because of the
latitude which they had given to these employees. Had the Superintendent been
careful to see whether the signature of the Accountant was given in the pay
bills, he must have detected that in the disputed pay bills there was no signature
of the Accountant, and that should have aroused his suspicion about the
correctness of the pay bills".
Even on the finding of the High Court, there
was nothing in the Duty Chart that the duty of the Cashier was to see that the
payment was made to the correct or right person. There is further no evidence
that these three Doctors were known to the Cashier. On the other hand, the High
Court has not absolutely repelled the argument advanced on 'his behalf that it
was not possible for him to know all the Housemen.
The High Court has come to an adverse
conclusion against him on account of his not properly "ascertaining who
was the real recipient" of the money before he disbursed the same.
The material before the High Court together
with the significant observation against the Superintendent and the Deputy
Superintendent do make out a case for giving benefit of reasonable doubt to the
Cashier as well. On the evidence which the High Court has relied upon against
him, it is not possible to hold that the requisite mens rea has been
established against this accused. As observed in the case of the Accountant, it
may be at the highest a case of an error of judgment or breach of performance
of duty which, per se, cannot be equated with dishonest intention to establish
the charge under section 42O I.P.C. In the result, the appeals ,are allowed.
The judgment of the High Court so far as these two appellants are concerned is
set aside. The two appellants herein are acquitted of the charge and shall be
discharged from their bail bonds.
P.B.R. Appeals allowed.