S. Swamirathnam vs State Of Madras

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 14 September, 1956

Coram: Imam, J.

In this matter, three separate appeals were filed by way of special leave against the judgments of the High Court of Madras. The respondents had been tried for the offence of conspiracy to cheat members of the public and also for distinct offences of cheating that were alleged to have been committed in furtherance of that conspiracy. The Additional Sessions Judge of Tirunelveli had acquitted the appellant identified as Swamirathnam of every charge that had been framed against him. Conversely, the same judge had found the appellants known as Abbas and Abu Bucker guilty of the conspiracy offence. Abbas was additionally convicted on the specific charge of cheating a person identified as P. W. 47, Krishnaswami Naicker. Abu Bucker, however, was acquitted of all specific cheating charges that had been framed against him. After these decisions, the convicted individuals Abbas and Abu Bucker, together with the State, lodged appeals in the High Court challenging the acquittals of Swamirathnam and Abu Bucker. The identities of the remaining accused who were either convicted or acquitted by the Sessions Judge were not repeated, because their cases did not form part of the present appeals. The High Court set aside Swamirathnam’s acquittal, convicted him of both the conspiracy offence and the cheating of another approver, Ramaswami Mudaliar, who had been examined at trial as P. W. 91. The High Court likewise reversed the acquittal of Abu Bucker on charge No. 11, which related to cheating, and sentenced him for that offence.

Both the Sessions Court and the High Court, after examining oral testimony and documentary evidence, concluded as a matter of fact that a conspiracy had existed during the period from 1945 to 1948. This conspiracy involved several of the accused together with the approvers named Ramaswami Mudaliar and Vellayam Pillai, who had been examined as P. W. 91 and P. W. 61 respectively. The scheme that the conspirators allegedly employed was to persuade members of the public, who could be induced, to hand over money in exchange for counterfeit five-rupee notes offered at half their face value. After receiving the genuine money, the conspirators would disappear with it. At a certain stage of the transaction, one of the conspirators, posing as a police officer, would arrest the member of the public who was carrying the box that contained the money, and would seize the box, thereby depriving the victim of his money without delivering any counterfeit notes. Upon careful review of the judgments rendered by the Sessions Judge and the learned High Court judge, it was found that both tribunals were well-founded in concluding, based on the evidence presented, that the prosecution had successfully proved the existence of the alleged conspiracy to cheat members of the public. No special circumstance emerged from the record that would warrant interference with the factual findings of the lower courts, because the evidence was deemed overwhelming and convincing in establishing the conspiracy during the relevant years.

In this case the Court observed that the material on record did not reveal any special circumstance that would warrant setting aside the findings of fact arrived at by the lower courts. It emphasized that the evidence presented was both overwhelming and convincing in establishing that, during the relevant years, a conspiracy existed among certain accused persons and the approvers to cheat members of the public. The Court identified the principal issue on appeal as the determination of whether each appellant had been a participant in that conspiracy and whether they were guilty of the specific offences of cheating that were alleged to have been committed in furtherance of the conspiracy. To resolve this issue, the Court considered it appropriate to examine the case of each appellant separately.

With respect to the appellant identified as Abbas, both the trial court and the appellate court had convicted him of the offence of conspiracy as well as of the specific cheating charge against the witness identified as Krishnaswami Naicker, who was recorded as PW 47. The cheating charge was numbered as charge 11. The Court noted that the testimony of Krishnaswami Naicker had been accepted as truthful by both lower courts and that his account was corroborated by several prosecution witnesses, including the approver Ramaswami Mudaliar, who was recorded as PW 91. The Court stressed that the assessment of evidence is the function of courts of fact and that there was no reasonable basis to conclude that PW 47 had committed perjury. Although the appellant’s counsel argued that the other witnesses who supported Krishnaswami Naicker’s version were either the approver or persons who ought to be characterised as accomplices, the High Court had ruled that, apart from the approver, the remaining witnesses could not be properly described as accomplices. Even assuming, for the sake of argument, that those witnesses were accomplices, the conviction of the appellant did not rest solely on their testimony. The primary evidence against the appellant was the testimony of the victim, PW 47, who, being the cheated party, could not be considered an accomplice. The Court found that the lower courts had examined the victim’s evidence with great care and that nothing in the record suggested any unreasonable reliance on his testimony. Consequently, the offence of cheating the victim was found to be fully proved against the appellant.

The Court also recalled that, before the High Court, the appellants’ counsel had conceded that a specific instance of cheating proved beyond doubt against any accused would provide the strongest corroboration of a conspiracy, because the conspiracy represents the underlying plan and the particular cheating instances constitute its fruits. Since the cheating charge against the appellant had been established, it supplied ample corroboration for the approver’s evidence that the appellant had taken part in the conspiracy to defraud the public. Accordingly, the Court affirmed that the appellant’s conviction under Section 120-B and Section 420 of the Indian Penal Code was properly supported by the evidence.

The Court observed that the conviction was entirely justified. The two appellants, Swamirathnam and Abu Bucker, each had separate counsel appearing before this Court, and each counsel presented the submissions of his client. Since the appellants had put forward a joint submission, the Court found it convenient to address that argument first. It was submitted that, having regard to the previous decisions of this Court and of the Privy Council, the High Court ought not to have disturbed the order of acquittal pronounced by the Sessions Judge in respect of the two appellants. The Sessions Judge had acquitted Swamirathnam of every charge that had been framed against him, and had likewise acquitted Abu Bucker of the specific cheating charge identified as charge No. 11. The High Court’s decision to set aside those acquittals, the submission argued, was unreasonable because there was no compelling necessity to overturn the Sessions Judge’s finding. The evidence of the approver, Ramaswami Mudaliar, recorded as PW 91, had not been supported by any conclusive proof that would link the appellants to the offences alleged in the charges. The High Court judge, according to the record, was fully aware of the authority of this Court and the Privy Council concerning the limited circumstances in which a higher court may validly set aside an acquittal. Consequently, the question that remained was whether the High Court judge, in overturning the acquittals, had acted unreasonably and beyond the limits set by those precedents.

The Court then turned to the conspiracy charge that had been framed against Swamirathnam. The Sessions Judge had acquitted him of that charge on the primary ground that the testimony of the approver lacked reliable corroboration capable of connecting Swamirathnam with the alleged conspiracy. The prosecution had relied on certain documentary material to corroborate the approver’s statement, but the Sessions Judge was of the opinion that those documents did not conflict with the defence’s version and therefore were insufficient. The High Court, however, reached a different conclusion and upheld the conviction, prompting the need to examine the relevant documents more closely. The Court therefore considered whether the evidence of the approver, Ramaswami Mudaliar (PW 91), had been adequately reinforced to establish the conspiracy charge beyond all reasonable doubt. The approver’s testimony, as recorded, fully described the conspiracy alleged under charge No. 1. He recounted that he had been induced to part with a substantial sum of money in the expectation of receiving counterfeit currency notes of double the value, an expectation that never materialised. He further testified that he had grown restless and had communicated to Abu Bucker that he had suffered considerable loss in the counterfeit-note business, that his creditors were causing him anxiety, and that he needed to recover his losses. The correspondence exchanged between the approver and Abu Bucker, together with the documents entered into evidence, demonstrated that during the months of October through December the alleged transactions and arrangements took place, thereby forming the factual foundation of the prosecution’s case.

In 1946 Abu Bucker sent a letter from Colombo to Ramaswami Mudaliar that appears as exhibit P 301 and is dated 23 December 1946. The Court found the letter noteworthy and, in its view, it corroborates Mudaliar’s testimony. In the correspondence Abu Bucker admits the accusation made by Mudaliar that he had deceived Mudaliar, and he expresses a desire to relieve Mudaliar of his monetary difficulties. He adds that it would take several months for the business to operate properly and that at the very least the money already paid should be returned immediately. According to Mudaliar’s evidence, an arrangement existed among Mudaliar, Abu Bucker and the appellant Swamirathnam whereby four promissory notes were to be drawn—one for a value of Rs 20,000 and three for Rs 10,000 each. These notes were purportedly written by Swamirathnam and executed by Abu Bucker in favour of Mudaliar. The approver’s evidence clearly indicates that the writing and execution of those promissory notes formed part of the alleged conspiracy to cheat. Exhibit P 177, a letter dated 18 July 1946, is addressed by Abu Bucker to accused No. 7, Guru alias Mowna Guru. In that letter Abu Bucker states that Swamirathnam, like all of them, required money, and he suggests that Mudaliar should be approached and spoken to. Abu Bucker proposes that if Mudaliar were to travel to Kandy, Ceylon, he could obtain money by executing a promissory note and would then be able to settle the obligations of all parties. He expressed confidence that this plan could be carried out and that Mudaliar would provide the necessary funds. The letter concludes with a suggestion that bringing Mudaliar to Kandy in a good-humoured manner would allow Abu Bucker to converse with him and conclude the business satisfactorily. This letter was found in the residence of Swamirathnam. When questioned by the Sessions Judge about the document, Swamirathnam denied any knowledge of it and offered no explanation as to how a letter written by Abu Bucker to Guru ended up in his house. The contents of the letter plainly indicate that Abu Bucker, Swamirathnam and others were in need of money and that they intended to persuade Mudaliar to travel to Kandy in a friendly disposition, after which Abu Bucker would execute a promissory note in Mudaliar’s favour to obtain the required sum. Exhibit P 89, dated 2 November 1946, is a letter from Abu Bucker to accused No. 11, U. K. Krishnaswami Chettiar, also sent from Colombo. In that communication Abu Bucker remarks that Mudaliar possessed a considerable amount of money, and despite Mudaliar’s apprehensions, he was prepared to rely on the support of Swamirathnam for any undertaking. Exhibit P 151, dated 8 November 1946, is a letter from Abu Bucker to Swamirathnam that was recovered from Swamirathnam’s house. The High Court judge quoted the entire letter in his judgment, and it plainly demonstrates that additional money was to be obtained from Mudaliar upon the execution of a promissory note.

In the case before the Sessions Judge, the letter in question was understood to be a request for additional money to be obtained from Ramaswami Mudaliar upon the execution of a promissory note. The correspondence mentioned receiving either ten rupees or fifteen rupees more in addition to thirty rupees already paid. Both parties agreed that the figures actually referred to amounts of ten thousand rupees, fifteen thousand rupees and thirty thousand rupees respectively. When the Sessions Judge questioned the appellant, Swamirathnam, about this exhibit, he acknowledged that the letter related to four promissory notes which he had written and which had been signed by Abu Bucker, notes that Ramaswami Mudaliar had later spoken about. The record also contains a further letter dated 14 November 1946, identified as Exhibit 91, which was a communication from Abu Bucker to accused number eleven, U. K. Krishnaswami Chettiar, dispatched from Colombo. In that letter Abu Bucker explained that their trade was not conducted by selling in a “shandy or in the shop,” and that individuals such as Krishnaswami Chettiar and others were unaware of when and how to converse, preferring to address each person in a distinct manner so as not to betray one to another. Abu Bucker characterised this approach as a trade secret and stated that the entire reliance for the operation rested on Swamirathnam under the prevailing conditions.

Two more letters, marked as Exhibits P.160 and P.161 and dated 13 November 1946, were written by Abu Bucker to Swamirathnam and were recovered from the appellant’s residence. These documents reveal Abu Bucker’s wish to arrange a meeting with Ramaswami Mudaliar and to settle the matter properly, asserting that any sum could be obtained from Mudaliar provided an appropriate scope was given. Subsequent letters, identified as Exhibits P.295 and P.296 and dated 14 November 1946, were addressed by Abu Bucker to Ramaswami Mudaliar from Colombo. In these letters Abu Bucker suggested that Mudaliar might have met Swamirathnam, who presumably had briefed him on all relevant details. Exhibit P.296, in particular, indicates that Mudaliar was experiencing significant anxiety and worry. Abu Bucker urged Mudaliar not to abandon his resolve, regardless of any circumstances, and recalled a promise made at a retiring room in Tanjore that whatever amount Mudaliar had paid based on his word would be honoured forever. He further warned Mudaliar against offering any bribe on anyone’s advice, recalling a prior incident, and instructed Mudaliar to place his trust solely in Swamirathnam. The Sessions Judge considered it necessary to examine these documents in detail because he had expressed the view that the letters were consistent with the appellant’s defence. The appellant’s defence, without elaborating on particulars, contended that the correspondence related to transactions that had nothing to do with any conspiracy or cheating. Regarding the execution of the promissory notes referred to by Ramaswami Mudaliar, Swamirathnam admitted that he had drafted the notes and that Abu Bucker had executed them. However, Swamirathnam maintained that the transaction was innocent, asserting that his involvement had been to mediate a dispute between Ramaswami Mudaliar and Abu Bucker concerning a business matter, which ultimately led to the writing of the promissory notes.

In the letters it appears that Abu Bucker was involved in a business dispute with Ramaswami Mudaliar and that the dispute was settled, after which the promissory notes were drawn. The correspondence, however, indicates that the suggestion to execute those promissory notes originated with Abu Bucker. The letters further imply that Abu Bucker and Ramaswami Mudaliar were not in conflict over any business matter, and that there was an effort to induce Ramaswami Mudaliar to part with additional money by having the notes issued in his favour. A notice dated November 1946 shows Abu Bucker urging Ramaswami Mudaliar not to abandon the arrangement and promising to honour his commitment concerning the sum already paid by the approver. In the same notice Abu Bucker cautions the approver against giving any bribe to anyone, although he admits that a bribe had previously been offered. The relevance of a bribe in connection with an apparently innocent transaction is not explained. Nevertheless, the approver testified that accused number six, Swami Shanmugam, told him that a large bribe to the District Superintendent of Police would protect Ramaswami Mudaliar and that the amount required was Rs 7,000. The approver further related that he instructed accused number ten, Kumaravel Chettiar, to forward Rs 7,000 to Swami Shanmugam. Four days later Swami Shanmugam allegedly informed the approver that the District Superintendent considered the bribe insufficient and demanded an additional Rs 5,000. According to the approver, Ramaswami Mudaliar then sent Rs 5,000 through accused number seven, Guru alias Mowna Guru, and subsequently Swami Shanmugam received further payments from him on several occasions, totalling Rs 10,000, for the purpose of bribery.

The approver explained that the bribery narrative related to a separate counterfeit-note scheme and occurred prior to the drafting of the promissory notes. In the Court’s view, the circumstances surrounding the execution of the notes, as described by the approver, are supported by the letters, which provide material particulars that echo the approver’s account. The Court held that the letters do not need to prove every element of the offence against each accused; it is enough that they link the accused to the criminal conduct. Upon examination, the letters corroborate the approver’s testimony and demonstrate a connection between the appellant and the conspiracy alleged by the approver. They also reveal a close association among the approver Ramaswami Mudaliar, Abu Bucker, the appellant, and several other accused persons. Consequently, the appellant’s participation in preparing the promissory notes substantiates the prosecution’s case both for the conspiracy charge and for the cheating charge framed as charge number eight. The Court found it unnecessary to detail the evidence relating to charge number eight, considering the matter academic, and concluded that the High Court judge was justified in his conviction of the appellant.

In confirming the conviction of the appellant for the offence of conspiracy under charge No. 1, the Court observed that the learned Judge of the High Court had provided satisfactory reasons for finding that the offence described in charge No. 8 was proved against the appellant. Consequently, the Court held that the High Court’s conviction was proper, whereas the Sessions Judge’s acquittal on that charge was erroneous. The appellant, identified as Abu Bucker, argued that the charges had been improperly joined because they purportedly comprised several distinct conspiracies that had been combined and tried together. The counsel representing Swamirathnam did not advance this submission. After a careful review of the charge, the Court found no basis to accept the appellant’s contention. The charge, as framed, described a single conspiracy that had unfolded over a number of years. Its sole objective was to defraud members of the public. The fact that additional persons joined the scheme over time, or that multiple cheating incidents occurred in furtherance of the conspiracy, did not alter the nature of the conspiracy nor divide it into separate conspiracies. The argument that, although the modus operandi was similar, the separate cheating incidents were unrelated transactions was also rejected. The appellant relied on Sharpurji Sorabji v. Emperor, AIR 1936 Bom 154 (A), and Choragudi Venkatadari In re, ILR 33 Mad 592 (B). The Court noted that these authorities were not applicable: the Bombay case did not involve a charge of conspiracy, and the Madras decision was rendered before the introduction of Section 120-B into the Indian Penal Code. In the present matter, each cheating occurrence was committed in furtherance of the single conspiracy and therefore formed parts of the same transaction.

The Court further noted that the appellant Abu Bucker had been found guilty of the conspiracy offence under charge No. 1 by both the Sessions Judge and the High Court, and that the record contained ample evidence to support this conviction. No reasonable ground was found to doubt the validity of that conviction. Regarding the specific cheating offence under charge No. 11, although the Sessions Judge had acquitted the appellant, the Court agreed with the High Court’s decision to set aside that acquittal and to convict on the basis of charge No. 11. The Court deemed it unnecessary to examine in detail the material relied upon by the High Court for that conviction, since the ultimate outcome for the appellant would remain unchanged if the conviction for conspiracy under charge No. 1 was upheld. Having considered the submissions, the Court concluded that the appeals lacked merit and dismissed them.