TMI Blog1961 (1) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... her, Kishenprasad Jwalladutt Pilani (hereinafter called accused No. 2) was appointed as one of the Directors of the Company on May 18, 1948. In March 1949 accused No. 1 took some employees of the Company in his confidence and told them that they should arrange for payment of at least Rs. 10,000 per month to him from the stores of the Company. To implement this object, from the date of the said arrangement until March 1956, accused Nos. 1 and 2 with the help of accused Nos. 3 to 16--accused Nos. 5, 6, 8, 11, 12, 14, 15 and 16 were the employees of the Company, and accused Nos. 8, 11, 14 and 16 were its Managers from time to time; accused No. 6 was its storekeeper, accused No. 12 a clerk, accused No. 15 a cashier, and accused Nos. 3, 4, 7, 9, 10 and 13 were some of the dealers with the Company entered into many fraudulent transactions, committed offences of criminal breach of trust and forgeries and thereby large amounts, aggregating in all about Rs. 6 lakhs, belonging to the Company were misappropriated between March 14, 1949 and March 20, 1956. On those allegations a charge-sheet was filed in the Court of the Presidency Magistrate alleging that the accused were guilty of criminal c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r real or fictitious for rendering certain service to the Company like removing rubbish or overhauling machines; the moneys were not paid but were misappropriated. (3) Contracts with non-existent firms: fictitious contracts were entered into with non-existent firms and the moneys alleged to have been paid by the Company were misappropriated. (4) Contracts with genuine firms: some of the dealers who were genuinely supplying goods to the Company entered into fictitious transactions with the Company and repaid the moneys received by them to accused Nos. 1 and 2. In short, in the first three categories of fraud only accused Nos. 1 and 2 and the employees of the Company were involved, for in the case of genuine sales the sale price was not accounted for either wholly or in part and in the case of fictitious services and contracts with non-existent firms only wrong entries were made in the account books and the moneys were misappropriated; the third parties came into the picture only in the case of contracts with genuine firms and under this category fall the Appellants, accused No. 13 (Respondent No. 9) and accused No. 7 (Respondent No. 8). 5. The learned Magistrate addressed himself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the common object of the conspiracy was to find money for accused Nos. 1 and 2 and to enable them to misappropriate and commit criminal breach of trust of those moneys and that with that end in view the employees of the Company and the dealers acted and in fact achieved that object. In the words of the High Court, there were different strands of the chain of which the dealers were the end pieces . The High Court also held that there was a prima facie case against accused No. 8, the manager of the Company, and that he should not have been discharged. The High Court confirmed the order of discharge passed by the Magistrate in respect of other accused. In the result the High Court has framed as many as 91 charges against the ten accused i.e., the two Appellants and Respondents Nos. 2 to 9 before us, and committed them to sessions. Hence this appeal. 7. Learned counsel for the Appellants argued that the Presidency Magistrate elaborately considered the material placed before him and came to the conclusion that no prima facie case that the Appellants were parties to the first conspiracy had been made out and that in exercise of his discretion the Magistrate refused to frame a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommittee in Babulal Choukhani v. The King-Emperor AIR 1938 P C 130 : (1938) L R 65 I A 158 : 40 Bom. L R 787, where it laid down the scope of Section 239 of the Code of Criminal Procedure vis-a-vis the offence of criminal conspiracy. There the Appellants were charged, together with a number of other persons, with being parties to a criminal conspiracy to commit theft of electric energy by tampering with meters and one of the two Appellants was charged with having committed theft of electric energy and the other with having abetted him in the commission of that offence. The Magistrate convicted the Appellants of conspiracy as well as of theft. On appeal the High Court held that the charge of conspiracy failed, but that did not make the trial illegal. The Judicial Committee posed the question for decision thus: Is it enough if the conspiracy is to be found in the accusation or must it be found in the eventual result of the trial ? Is the relevant point of time that of the accusation or that of the eventual result ? The Judicial committee came to the conclusion that to invoke Section 239 (d) of the Code of Criminal Procedure it would be enough if the conspiracy was found in the accusa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by which cases which should be comparatively short and simple become unwieldy, complicated and lengthy. But, even so, that can be no ground why the Court should misconstrue the section. Indeed, it is difficult to think that such apprehensions are justified. It must be hoped, and indeed assumed, that Magistrates will exercise their discretion fairly and honestly. Such is the implied condition of the exercise of every discretionary power. This passage indicates the injustice that would be caused to the accused and cautions Magistrates to exercise their discretion fairly and honestly. 9. The next decision is that of this Court in Krishnamurthy Iyer v. State of Madras AIR 1954 SC 406. There the Magistrate framed 67 charges against 28 persons for conspiracy to commit criminal breach of trust under Section 409, Indian Penal Code, and falsification of the accounts of a bank under Section 477A, Indian Penal Code. The case went on for two years, in the course of which over 6,000 exhibits were filed and 203 witnesses were examined. The High Court condemned the framing of the charges in strong language and quashed the charges framed and directed a de novo trial. This Court agreed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid by him. It was found on evidence that all the Appellants took part in the various acts committed pursuant to that conspiracy. In such a situation this Court held that there was only one conspiracy. The only principle this Court laid down is that an accused need not be a member of a conspiracy from its inception but he may join it at a later stage, and that every one of the conspirators need not take part in every incident. If there is one conspiracy, the said circumstances cannot obviously make any difference in the application of Section 239 (d) of the Code of Criminal Procedure. In this context a decision of an English Court is rather instructive and that is in R. v. Dawson (1960) 1 All E R 558. In that case, an indictment on which two Appellants were charged with other accused included fifteen counts. Fourteen of these charged various fraudulent offences on dates in and between 1955 and 1957. The first count charged conspiracy to defraud between November 1, 1964 and December 31, 1957. The transactions which were the subject of the other fourteen charges were within the purview of the conspiracy charge. Both the Appellants were convicted on the conspiracy charge and one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offences spread over a long period of time and committed by a large number of persons under the protecting wing of all-embracing conspiracy, if each or some of the offences can legitimately and properly form the subject-matter of a separate trial; such a joint trial would undoubtedly prolong the trial and would be a cause of unnecessary waste of judicial time. It would complicate matters which might otherwise be simple; it would confuse accused and cause prejudice to them, for more often than not accused who have taken part in one of the minor offences might have not only to undergo the long strain of protracted trial, but there might also be the likelihood of the impact of the evidence adduced in respect of other accused on the evidence adduced against him working to his detriment. Nor can it be said that such an omnibus charge or charges would always be in favour of the prosecution for the confusion introduced in the charges and consequently in the evidence may ultimately benefit some of the accused, as a clear case against one or other of the accused may be complicated or confused by the attempt to put it in a proper place in a larger setting. A Court should not be overzealous t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Magistrate in the circumstances of the case is based on sound reasons and is fair both to the prosecution and to the defence. The High Court clearly went wrong in setting aside the order made by the Magistrate on a prima facie view of the material placed before him on the basis of decisions of Courts made under different circumstances. The learned Judge of the High Court does not say anywhere in his judgment that there is material either direct or circumstantial, to support the case that the Appellants committed the offences attributed to them to implement the object of the conspiracy of 1949, or that they had even knowledge of such a conspiracy; nor did he consider the prejudicial effect of the conglomeration of a long catena of charges in one trial on the case of the Appellants. Learned Counsel for the State contended that there was no necessity to have direct evidence to establish that the Appellants were parties to the original conspiracy and that the said fact could be inferred under Section 10 of the Evidence Act from the individual acts committed by them. Section 10 of the Evidence Act reads: Where there is reasonable ground to believe that two or more persons have co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule, some prima facie evidence should be placed before the Court to enable it to form an opinion that there is reasonable ground to believe that two or more persons have conspired together; and if that condition is fulfilled the acts and declarations of a conspirator against his fellow conspirators may be admitted as evidence. In the present case no material had been placed before the Presidency Magistrate to sustain a reasonable ground to believe that the Appellants were parties to the main conspiracy and, therefore, the operation of the section even if it was applicable at that stage, would not be of any help to the State. The High Court, in the circumstances of this case, in our view, was not justified in interfering with the discretion of the Presidency Magistrate exercised in a most balanced and reasonable manner. E. F.-2. 13. This leads us to consider the case of accused Nos. 7 and 13, who are Respondents Nos. 8 and 9 before us. The Presidency Magistrate directed that a separate trial should be held against accused Nos. 1, 2, 6, 9, 10 and 13 for conspiracy to commit criminal breach of trust. Accused No. 13 was included in this conspiracy as he was involved in four transact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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