TMI Blog1957 (9) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... rently. The prosecution was initiated on a private complaint filed by one Louis Anton Cornea on June 30, 1952, against four persons of whom the appellant was designated therein as the first accused and one Santram as the fourth accused and two other persons, A. A. Rowji and S. A. Rowji, as second and third accused respectively. Bailable warrants were issued against all the four by the learned Magistrate but it appears that warrants could not be executed against accused 2, 3 and 4. They were reported as absconding. The trial was accordingly separated as against them and proceeded only as against (the first accused) the appellant herein. The convictions and sentences have been confirmed on appeal by the High Court at Bombay. The complainant is a businessman from Goa and was the director of a firm in Goa which was trading in the name of Colonial Limitada doing business in import and export. At the relevant time there was severe scarcity of rice in Goa. The complainant was accordingly anxious to import rice urgently into Goa. He got into touch with a friend of his by name Rosario Carvalho in Bombay who was doing business as a commission agent. Carvalho in his turn got into touch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low to Jasawalla and obtained receipts from him, purporting to be the agent of the appellant. 1. On July 23, 1951 ...Rs. 81,000 2. On August 28, 1951 ...Rs. 2,30,000 3. On August 29, 1951 ... ₹ 2,36,900 All these amounts are held to have been received by the appellant in due course. It is admitted, however., that no rice was in fact shipped to the complainant and the amounts have not been returned back to the complainant. The defence of the appellant is to the effect that the amounts were not in fact paid to any person who was his agent and not in fact received by him at all and that he was unable to supply the rice as the complainant did not comply with the terms of the contract by opening a letter of credit at Karachi or paying him in Pakistani currency. This defence has not been accepted and the appellant has been found guilty as charged by the courts below. He was therefore convicted and sentenced as above stated. It is necessary to set out somewhat in detail the essential facts held to have been proved by the courts below to appreciate the legal contentions that have been urged before us. As previously stated, the complainant got into touch with his friend Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a which seem to indicate that he was trying to shift his position by asking for 50% as advance deposit. For a few days thereafter the complainant did not turn up at Bombay with the funds and the appellant by his telegram dated July 16, asked Jasawalla why there is no further information about the transaction. By a telegram dated July 17, he informed Jasawalla that S. S. Olinda was sailing in a few days and that it would be too late to ship the rice and that the matter should be hurried up. On July 18, the complainant sent a telegram to Jasawalla informing him that he was coming with funds and that if the rice was not shipped it may be shipped by S.S. Olinda which was about to start on July 21. The appellant also sent a telegram to Jasawalla on July 18, asking why the deal was not coming on and that he had already reserved space by the steamer of the 21st. On July 19 again Jasawalla received a telegram from the appellant informing him definitely that space was reserved in the steamer. The complainant also sent a telegram to Jasawalla on the same day informing him that he was coming and that at least 500 tons must be shipped at once. The complainant-arrived at Bombay on July 20. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having received the sum of ₹ 81,000 as above, changed his front from July 24, 1951. The facts held to have been proved in respect of this change of front may now be stated. On July 24, 1951, the appellant sent to Jasawalla a telegram mentioning difficulties created by the Exchange Controller in shipping the goods. When Jasawalla conveyed his protest and insisted upon the shipping of the goods at once, the appellant sent a telegram on July 25, informing him that the difficulties were of a minor character and that the space for shipping was already booked. Jasawalla by his telegram of the same date asked for confirmation of loading of 1,200 tons by S. S. Olinda and requested him that if the full quantity could not be loaded, a portion thereof might be sent immediately. The appellant by his letter dated July 26, acknowledged Jasawalla's letter dated 23rd (informing him about the payment of ₹ 81,000) and intimated that the rice would be shipped by the next steamer S. S. Umaria sailing for Malaya and that the said steamer can touch Goa if the quantity of rice to be shipped is raised to 2,000 tons. By a letter dated July 26, Jasawalla protested against the new conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters and telegrams passed between the complainant and Jasawalla on the one hand and the appellant on the other. As a result of efforts made in this interval, it appears that the Pro. Consul, Mr. Alphonso, was prepared to give the exchange-guarantee of the State Bank of Pakistan for payment in sterling of the price of rice. The appellant then by his letter dated August 13, informed Jasawalla that the State Bank was not insisting on exchange guarantee but that it would be sufficient if a certificate was issued by the Portuguese authority that the rice was required for replenishing the ration shops in Goa. A similar letter was also written by the appellant on August 14, to the complainant. Thereupon the complainant and Jasawalla approached the concerned authority at Goa, viz., one Mr. Campos, the Trade Agent to the Portuguese Government. Mr. Campos thereupon sent telegrams on August 16, to the State Bank of Pakistan, to the Pro-Consul, Mr. Alphonso, and to the appellant certifying that rice was required for replenishing the ration shops in Goa. After this there was a further change of tactics by the appellant. By a telegram dated August 20, 1951, the appellant informed the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was shocked that no space was reserved, though everything had been done on his side. The appellant sent a reply by telegram dated September 1, 1951, protesting against the language used by Jasawalla in the telegram and informed him that space was reserved but the Company could not wait as the goods could not be shipped. On September 5, the appellant informed Jasawalla by a letter that space was reserved by S.S. Pentakota and that everything was ready for shipment. Meanwhile the complainant feeling very nervous and anxious about the fulfilment of the transaction proceeded in person to Karachi on September 4. According to the complainant he stayed at Karachi for about two weeks. He was shown some godowns containing rice bags suggesting that they belonged to the appellant and were ready for shipments But he was not afforded any opportunity for verifying that the stock was intended for shipment in respect of his transaction. The complainant went to Karachi on a Visa for three months. But after a stay of less than two weeks he was served with a quit-order from the Pakistan Government on September 18, and was bundled out of Karachi. It is the complainant's impression that this was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence has been accepted by the courts below after full consideration of the various comments and criticisms against acceptability of the same. In a case of this kind a question may well arise at the outset whether the evidence discloses only a breach of civil liability or a criminal offence. That of course would depend upon whether the complainant in parting with his money to the tune of about ₹ 5 1/2 lakhs acted on the representations of the appellant and in belief of the truth thereof and whether those representations, when made were in fact false to the knowledge of the appellant and whether the appellant had a dishonest intention from the outset. Both the courts below have found these facts specifically against the appellant in categorical terms. These being questions of fact are no longer open to challenge in this Court before us in an appeal on special leave. Learned counsel for the appellant accordingly raised before us the following contentions: 1.The appellant is a Pakistani national, who, during the entire period of the commission of the offence never stepped into India and was only at Karachi. Hence he committed no offence punishable under the Indian Penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the context of the other letters and telegrams to which they purport to be replies and which form the chain of correspondence as indicating the genuineness of the disputed letters. Learned counsel objected to this approach on a question of proof. We are, however, unable to see any objection. The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in ss. 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts no presumption can arise. 'Indeed that section with the illustrations thereto has nothing to do with presumptions but only with relevance. Some cases relating to this have been cited before us. We have considered the same but it is unnecessary to deal with them. Next taking the question relating to telegrams the main objection is as to the proof of the genuineness of the various telegrams said to have been received from the appellant. In this case since we are largely concerned with the nature and contents of the representations said to have been made by the accused to the complainant or to Jasawalla, it is obvious that what are relevant or important are the telegraphic messages delivered to the complainant or Jasawalla provided the authorship of the original is made out. These messages have been proved by producing the messages actually handed over. to either of these persons or the transit copies of the originals recorded at the receiving end. The real objection, however, appears to be that there is no proof as to the appellant having been the author of these messages. It is true that under s. 88 of the Evidence Act there is a presumption only that the message receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses, viz., the com- plainant, Jasawalla and Sequeria, each set of evidence having been considered as affirmative of the other and in the aggregate as proving the authorship of the disputed documents. The fourth contention raised by the appellant's counsel relates to the validity of the conviction under s. 420/34 of the Indian Penal Code. Learned counsel argued that persons designated as accused 2, 3 and 4 in the complaint, were all in Bombay and the appellant in Karachi and that therefore no conjoint offence could be committed by them within the mean- ing of s. 34 of the Indian Penal Code. He relies upon the dictum in Shreekantiah Ramayya Munipalli v. The State of Bombay [1955] 1 S.C.R. 177, 1188 to the effect that it is essential that the accused should join in the actual doing of the act and not merely in planning its perpetration. We do not think that case or the dictum therein relied on, have any bearing on the facts of the present case. It is also necessary to observe that what in fact has been found in this case is the commission of the offence by the appellant himself. Though the trial Magistrate and one of the learned Judges of the High Court referred to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l he has been restored or has been given an opportunity of returning. This section, however, has no bearing in the present case, since, as already stated, the appellant was surrendered under the Fugitive Offenders Act which contains no analogous provision. Section 8 of the Fugitive Offenders Act only provides for an optional repatriation of the surrendered person at his request if he is acquitted of the offence for which he is surrendered. Learned counsel urges that the principle underlying s. 3(2) of the English Extradition Act is a general one and that it should be applied by analogy also to a surrender under the Fugitive Offenders Act. We are unable to accede to that contention. It may also be mentioned that even if his arrest in India for the purpose of a trial in respect of a fresh offence is considered not to be justified, this by itself cannot vitiate the conviction following upon his trial. This is now well-settled by a series of cases. (See Parbhu v. Emperor A.I.R. (1944) P.C. 73; Lumbhardar Zutshi v. The King A.I.R. (1950) P.C. 26; and H. N. Rishbud v. The State of Delhi (1955) 1 S.C R. 1150, 1 163. This contention must accordingly be overruled. We are left, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of jurisdiction in this specific form to be argued before us. But the learned Judges of the High Court have entertained it and dealt with it on the stated assumption that the appellant is a Pakistani national. To overrule the objection at this stage without finally deciding whether the appellant continues to be an Indian citizen (after remanding for additional finding, if need be,) would not be fair or satisfactory. In the circumstances we have felt it desirable to allow arguments to proceed on the same assumption which the High Court has made. We, therefore, proceed to deal with it. The learned Judges of the High Court decided against the objection of the appellant as to the jurisdiction of the court to try him for the alleged offence relying on s. 179 of the Code of Criminal Procedure which provides as follows: When a person is accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done, or any such consequence has ensued. In view of the above provision, the learned Judges sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns to the complainant through letters, telegrams and telephone talks, some times directly to the complainant and some times through Jasawalla, that he had ready stock of rice, that he had reserved shipping space and that on receipt of money he would be in a position to ship the rice forthwith. These representations were made to the complainant at Bombay, notwithstanding that the appellant was making the representations from Karachi. The position is quite clear where the representations were made through the trunk phone. The statement of the appellant at the Karachi-end of the telephone becomes a representation to the complainant only when it reaches cognition of the complainant at the Bombay- end. This indeed has not been disputed. It makes no difference in principle if the representations have in some stages been conveyed by telegrams or by letters to the complainant directly or to some one of the appellant's agents, including Jasawalla in that category. There is also no question that it is as a result of these representations that the complainant' parted with his money to the tune of about ₹ 5 1/2 lakhs on three different dates. It has been found that the representa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an offence, whose locality is in India, that the liability is fastened on the person and the punishment is awarded by the law, if his presence in India for the trial can be secured. That this is part of the ordinary jurisdiction of a Municipal Court is well recognised in the common law of England as appears from Halsbury's Laws of England (Third Edition) Vol. 10, p. 318. Paragraph 580 therein shows that the exercise of criminal jurisdiction at common law is limited to crimes committed within the territorial limits of England and para. 581 states the jurisdiction in respect of acts outside English territory as follows: For the purposes of criminal jurisdiction, an act may be regarded as done within English territory, although the person who did the act may be outside the territory; for instance, a person who, being abroad procures an innocent agent or uses the post office to commit a crime in England is deemed to commit an act in England. If a person, being outside England, initiates an offence, part of the essential elements of which take effect in England, he is amenable to English jurisdiction. It appears that even though the person who has initiated such an offence is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the footnote. In noticing the provisions of International Law in this context we are conscious that what we have to deal with in the present case is a question merely of municipal law and not of any International Law. But as is seen above, the principles recognised in (1) Publications, Permanent Court of International justice, Series A, Nos. 10, 23. International Law in this behalf are virtually based on the recognition of those principles in the municipal law of various countries and is really part of the general jurisprudence relating to criminal responsibility under municipal law. No doubt some of the above dicta have reference to offences actually committed outside the State by foreigners and treated as offences committed within the State by specific legislation. But the principle emerging therefrom is clear that once it is treated as committed within the State the fact that he is a foreigner corporeally present outside at the time of such commission is no objection to the exercise of municipal jurisdiction under the municipal law. This emphasizes the principle that exercise of criminal jurisdiction depends on the locality of the offence and not on the nationality of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which indicate the actual presence of the culprit as a necessary ingredient of the offence. Of course, for such offences a foreigner ex hypothesi not present at the time in India cannot be guilty. The only general sections of the Indian Penal Code which indicate its scheme in this behalf are ss. 2,3, and 4 and as they stand at present, they are as follows: 2. Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India. 3. Any person liable, by any Indian law, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India. 4. The provisions of this Code apply also to any offence committed by- (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be. Explanation:-In this section the word 'offence' includes every act committed outside India which, if committed in India, would be punishable under this Code. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have specifically said so. We are unable to accept this argument. These sections have reference to particular difficulties which arose with reference to what may be called, a related offence being committed in India in the context of the principal offence itself having been committed outside India-that is for instance, abetment, giving false information and harbouring within India in respect of offences outside India. Questions arose in such cases as to whether any criminal liability would arise with reference to the related offence, the principal offence itself not being punishable in India and these sections were intended to rectify the lacunas. On the other hand, a reference to s. 3 of the Code clearly indicates that it is implicit therein that a foreigner who commits an offence within India is guilty and can be punished as such without any limitation as to his corporeal presence in India at the time. For if it were not so, the legal fiction implicit in the phrase as if such act had been committed within India in s. 3 would not have been limited to the supposition that such act had been committed within India, but would have extended also to a fiction as to his physical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the present Constitution. It is enough to refer to the case of Croft v. Dunphy and to the decision of Spens, C.J., in Governor-General v. Raleigh Investment A.I.R. (1944) F.C. 51, 60,61. In the latter case Spens, C.J., indicates. that there has been considerable change in the concept of the doctrine of extra-territorial legislation, subsequent to Macleod's case (1891) A.C. 455 and the criticism of Macleod's case (2) in certain Canadian decisions and of the Privy Council itself has been adverted to. Learned counsel invited our attention to a passage from the report of the Indian Law Commissioners quoted at p. 274 of Ratanlal's Law of Crimes (Eighteenth Ed.). It is enough to say that though this quotation may be valuable as a matter of history, it cannot be a legitimate guide for the construction of the section. That construction must be based on the meaning of the words used, to be gathered according to the ordinary rules of interpretation and in consonance with the generally accepted principles of exercise of criminal jurisdiction. It is not necessary and indeed not permissible to construe the Indian Penal Code at the present day in accordance with the notions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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