TMI Blog1952 (9) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... for commission of the offences of forgery of the tender (Exhibit P-3A) and of another document, Exhibit P-24. The learned Special Magistrate convicted both the appellants on all the three charges. He sentenced R.S. Patel to rigorous imprisonment for one year under each charge and to pay fines of ₹ 2,000, ₹ 2,000, and ₹ 1,000, under the first, second and third charges respectively. The appellant Nargundkar was sentenced to rigorous imprisonment for six months under each charge and to pay fines of ₹ 2,000, ₹ 2,000 and ₹ 1.,000, under the first, second and third charges respectively. Each of the appellants appealed against their respective convictions and sentences to the Court of the Sessions Judge, Nagpur. The learned Sessions Judge quashed the conviction of both the appellants under the first charge of criminal conspiracy under section 120-B, I.P.C., but maintained the convictions and sentences under section 465, I.P.C. or the charges of forging Exhibits P-3 (A) and P-24. Both the appellants went up in revision against this decision to the High Court but without any success. An application was then made under article 136 of the Constitution of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... started by the Anti-Corruption Department. Both the accused became aware of the enquiry. In order to create evidence in their favour they brought into existence a letter (Exhibit P-24) and antedated it to 20th November, 1946. This document was forged with the intention of committing fraud and of causing injury to Amarnath (P. W. 20) and also to Doongaji (P.W. 4). Exhibit P-24 is alleged to have been typed on a typewriter (Article A) which was purchased on the 30th December, 1946, by the National Industrial Alcohol Co., Nagpur, of which accused Patel was the managing director. It Was further alleged that the endorsement made by accused 1 (Nargundkar) in the said letter No action seems necessary. File , and marked to Superintendent S was not made on the 21st November, 1946, which date it bears. This letter was handed over by accused 1 to the Office Superintendent, S.W. Gadgil (P.W. 13) about the middle of August, 1947, and thereafter accused I wrote a letter (Exhibit P. 26), on the 2nd October, 1947, to Sri S. Sanyal (P.W. 19) who was then the Excise Commissioner, requesting that this letter (Exhibit P-24) and a note sheet (Exhibit P-27) be kept in sale custody. Both the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his own admission he is an accomplice in respect of the forgery of Exhibit P-27, one of the documents alleged to have been forged for purposes of the defence but concerning which no prosecution was started. Exhibit P-27 bears date 31st October, 1946. Gadgil s statement about it is as follows: He (Nargundkar) put down his signature and the date 31st October, 1946. This order was actually written by Sh. Nargundkar in the note-sheet, Exhibit P-27, in the month of July or August, 1947. The dates were antedated. In the margin of the note sheet I have put down my initials S.W.G. and put the date 31st October, 1946. This note-sheet was not prepared on gist October, 1946. He asked me to keep it in my custody. The witness admittedly became a party to the preparation of a forged document. Whether he was telling the truth, or he was telling a lie, as appears likely from his crossexamination, he is in either event, not a person on whom any reliance could be placed. It is curious that this aspect of the evidence of Gadgil has not been noticed by any of the three courts below. When the court of first instance and the court of appeal arrive at concurrent findings of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take for granted some fact consistent with its previous theories and necessary to render them complete. It is well to remember that in cases where the evidence is of a circumstantial nature,the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intrinsic within Exhibit P-3A or ,outside and we are constrained to observe that the courts below have just fallen into the error against which warning was uttered by Baron Alder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng scale rate on the basis of the price of mahua flowers for three years 1948-51. The trial magistrate held on a construction of it that no rate or rates of separate years were asked for in this notice and that one flat rate was only asked for, for four years. Habibur Rahman and Zakirur Rahman in their tenders, Exhibits P-4 and P-5, quoted one flat rate for four years and did not mention separate flat rates for separate years. Doongaji in his tender, Exhibit P-6, mentioned separate flat rates for each separate year also. He did so because he consulted one Mr. Munshi, Personal Assistant to the Excise Commissioner, whether he should quote each rate separately and Mr. Munshi told him that he could give flat rate for the combined years as well as flat rates and also sliding scale rates for each year separately. Admittedly accused 2 was working as an agent of Habibur Rahman and his son Zakirur Rahman for the distillery contracts of Betul and Seoni, and, therefore, he must have been the author not only of his own tender but of the tenders submitted by Habibur Rahman and Zakirur Rahman, Exhibits P-4 and P-5. All of them were acting together with the object of getting the contract thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to it, being obsessed with the idea that such a quotation of flat rates for each year could not be mentioned in a tender by a contractor merely on a construction of Exhibit P-9 and without any further inquiry or without seeing the tender of somebody else who had followed that method. The next circumstance on which considerable reliance is placed is that accused 2 studiously maintained rates below the rates of Doongaji throughout, that when Doongaji lowered his rates for the second year accused 2 did the same, and when Doongaji raised his rates for the third and fourth years accused 2 also did so, at the same time maintaining rates lower than Doongaji s rates. It is said that the system followed by Habibur Rahman and Zakirur Rahman and Patel originally must have been the same as Patel was the author of all the three tenders, that Habibur Rahman srates were higher than Zakirur Rahman s by six pies and this variation was constant throughout, that in Patel s original tender which must have followed the same system his rates would be lower than Habibur Rahman s by three pies throughout. Exhibit P-3A, however, shows that this is not so. Patel abandoned the system when he found th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is such that his rates work out lower than the rates of others, it may well be that he may quote lower rates in respect of all items. It was then said that Patel had adopted a particular plan in submitting the three tenders, of himself, Habibur Rahman and Zakirur Rahman and that his plan was that his rates should be less by three pies than the rates he had quoted for Habibur Rahman, that in the first five items of Exhibit 145 he stuck to that plan and did not alter the rates of those items as originally submitted by him, as those rates were lower than the rates of Doongaji but from the sixth item onwards he substituted new rates for the ones he had originally submitted and he departed from the plan so that his rates for each item were to be lower only by three pies as compared with the rates of Habibur Rahman. It is no doubt true that Patel did not adhere to the plan that he adopted in the first five items of his tender but is that a circumstance from which any inference can be drawn that the first five items are a part of his original tender or that he did so depart from them because he had seen Exhibit P-6 and he wanted to underbid Doongaji. As we have already said, the objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibit P-6. The courts below fell into this error and departed from the rule that in a criminal case an accused person is to be presumed to be innocent and that it is for the prosecution to establish his guilt conclusively. Next it was urged that in the covering letter Exhibit P-3 sent by Patel he mentions three appendices numbered 1, 2 and 3, The same expression finds place in the covering letter Exhibit P-4 of Habibur Rahman and Exhibit P 5 of Zakirur Rahman, that appendices 1 to a of the tender of Habibur Rahman and Zakirur Rahman correctly answer to the reference in the covering letters but this is not so in Patel s case; on the other hand, instead of appendix 1, Patel has appendix 1 (a) and 1 (b) and the number of his appendices thus goes up to four and this departure from Exhibits P-4 and P-5 came about because of his having seen Exhibit P-6 and the number of appendices annexed to it. It was urged that the original tender of Patel must have contained three appendices like those of Habibur Rahman and Zakirur Rahman and not appendix l(a) and l(b) as now found and that this circumstance showed substitution of the tender. The learned magistrate, in our opinion, in giving impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i and his partner with Mr. Amarnath in the office room of his residence with some office files. From the papers I could recognize my tender open on the table in front of them. As soon as I went there, all of them were astonished and they could not speak with me for a moment, and then they carried on some dry general conversation with me. Same way after about a week, when I went to Seoni for mahua bill, when Mr. Amarnath visited for sanctioning the advance, I had the opportunity to see Mr. Amarnath in dak bungalow at about 9-30 p.m. when I saw Mr. Mehta the exmanager of Mr. Edulji (who is also the manager of Seoni Electric Co.) with Mr. Amarnath near table with the same file of the tender. No doubt after seeing the above two incidents I requested Mr. Amarnath to be fair in this affair. I am bringing these incidents to your notice, as I fear that something underhand may not be going on, and I am afraid that my tender may be tampered with. Hoping to get justice, Yours faithfully, Sd. R.S. Patel. The words Congress Nagar, Nagpur, 20th November, 1946 are in manuscript, while the rest of the letter has been typed. The digit 6 of the year 1946 has been over-written on di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing been written on the 20th November, it would be quite a correct thing to say that he saw him last week and the next recital when he said that about a week thereafter he saw him again is quite consistent with his going and seeing him on the 16th or 17th November. That would be about a week after the first visit. To draw any conclusion adverse to the accused from a slight inaccuracy in the description of dates and to conclude therefrom that it was established that the accused Patel had seen Amarnath on the 9th November, 1946, amounts to unnecessarily stretching a point against the accused. The recitals in the letter, true or false, are quite consistent with the letter bearing date 20th November, 1946. The magistrate observed that the vagueness about the date and the week shows that the allegations therein are not correct. We have not been able to understand how -the vagueness about the date could lead to the conclusion arrived at. Emphasis was laid on the overwriting of the figure 6 over the figure 7 in the manuscript part of the letter. It was said that the normal experience is that it becomes a subconscious habit to automatically write the year correctly when several months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date that the letter bears. It is dear that no forger would have in such a clumsy manner corrected 1947 into 1946 so as to leave the original figure 7 intact and thus leave evidence of its suspicious character writ large on its face. There was no hurry about it, and a second letter without the alteration could easily have been typed. Next it was argued that the letter was not typed on the office typewriter that was in those days, viz., article B, and that it had been typed on the typewriter article A which did not reach Nagpur till the end of 1946. On this point evidence of certain experts was led. The High Court rightly held that opinion of such experts was not admissible under the Indian Evidence Act as they did not fall within the ambit of section 45 of the Act. This view of the High Court was not contested before us. It is curious that the learned Judge in the High Court, though he held that the evidence of the experts was inadmissible, proceeded nevertheless to discuss it and placed some reliance on it. The trial magistrate and the learned Sessions Judge used this evidence to arrive at the finding that, as the letter was typed on article A which had not reached Nagpu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
