Kadiri Kunhahammad vs The State Of Madras

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 27 January 1959

Coram: P.B. Gajendragadkar, A.K. Sarkar, K. Subba Rao

In this case, the Supreme Court of India heard an appeal by special leave filed by Kadiri Kunhahammad against an order of the Madras High Court dated 27 January 1959. The High Court had confirmed the appellant’s conviction under Section 409 of the Indian Penal Code and had imposed a term of rigorous imprisonment of four years and six months. The appeal was heard by a bench consisting of Justices P.B. Gajendragadkar, A.K. Sarkar and K. Subba Rao, with Justice P.B. Gajendragadkar authoring the judgment.

The prosecution alleged that the appellant and eight other persons charged alongside him were participants in a criminal conspiracy whose common object was to dishonestly misappropriate the property of the Meenangadi Producers-cum-Consumers Cooperative Society Ltd. and to dispose of that property in violation of law. The cooperative society had been created for the procurement and distribution of food-grains in the two revenue divisions of Purakkadi and Muttil in Wayanad Taluk, and it held a licence granted under the food-grains control orders. The appellant served as President of the society, while the eight other accused were its directors. The society’s secretary, who was also alleged to have been part of the conspiracy, was listed as a co-accused in the charge-sheet, had been granted a pardon, and gave evidence at trial, identified as PW 3 in the record.

The learned Assistant Sessions Judge of South Malabar, before whom the trial was conducted, framed fourteen charges against the nine accused persons. The principal charge was a conspiracy charge under Section 120B read with Section 409 of the Indian Penal Code. The remaining charges related to various illegal acts alleged to have been committed by one or more conspirators in furtherance of the conspiracy. Charge number six, which was directed specifically at the appellant, comprised three separate counts. Under the first count, the appellant was charged under Section 409 for committing criminal breach of trust involving a sum of Rs 26,000 during the period from April 1949 to October 1951. The second count charged the appellant under Section 471 for fraudulently or dishonestly treating as genuine a voucher purportedly issued by a person named Kadiri Assoo, which the appellant knew or had reason to believe was forged. The third count, under Section 477A, alleged that, about the same time and place and in furtherance of the conspiracy, the appellant, acting as director and President of the society and with intent to defraud, falsified the society’s day-book.

The learned trial judge held that the principal charge of conspiracy had not been proved. He also found that the charges other than charge six, which had been framed against the other accused, had not been established.

The trial judge observed that the prosecution had failed to establish the participation of the other accused persons, and therefore he acquitted every accused of the offences that were alleged against them. Regarding the sixth charge, the judge determined that the first and third counts of that charge had been proved against the appellant beyond a reasonable doubt, whereas the second count had not been established. Consequently, the judge acquitted the appellant of the second count and found him guilty of the first and third counts. For the offence punishable under Section 409, the judge imposed a term of rigorous imprisonment of four years and six months and also ordered the appellant to pay a fine of one thousand rupees; the judge further stipulated that if the fine were not paid, the appellant would suffer an additional six months of rigorous imprisonment. For the offence punishable under Section 477A, the judge sentenced the appellant to one year of rigorous imprisonment. The judge directed that the two periods of imprisonment should run at the same time, meaning that the sentences were to be served concurrently.

The appellant challenged the order of conviction and the sentences by filing an appeal before the High Court of Madras. The High Court examined the appeal and accepted the appellant’s contention concerning the conviction under Section 477A; it set aside that conviction and consequently acquitted the appellant of that particular charge. The High Court, however, affirmed the conviction under Section 409 and upheld the original term of four years and six months of rigorous imprisonment. While confirming the conviction, the High Court held that, in view of the already imposed term of rigorous imprisonment, it was unnecessary to enforce the monetary fine, and therefore it set aside the fine that had been ordered by the trial court. The appellant now contests this order of conviction and sentencing before this Court. In the present appeal, the appellant is not permitted to dispute the correctness or propriety of the High Court’s finding that the charge under Section 409 had been proved beyond a reasonable doubt, because that finding is a matter of fact. The High Court, in reaching its conclusion, agreed with the trial judge’s view, and both courts concluded that the prosecution’s evidence established the appellant’s guilt for the offence under Section 409. The trial judge had reasoned that, out of the total amount of twenty-six thousand rupees that formed the basis of the charge under Section 409, a breach of trust had been proved with respect to five thousand eight hundred rupees. The High Court noted a slight doubt concerning an alleged breach involving two hundred rupees, but nonetheless held that there was no doubt that the appellant had committed a breach of trust amounting to five thousand six hundred rupees. Although this discrepancy is minor, the overall finding against the appellant was founded not only on the testimony of the approver (exhibit P.W. 3) but also on material admissions made by the appellant himself, which appeared in Exhibits P. 64-A and P. 86. The relevant

The High Court had examined the evidence related to this point, the pleas presented by the appellant and the evidence he led in support of those pleas, and it concluded that, based on the material before it, there was no doubt that the charge against the appellant was proved beyond a reasonable doubt. The Court indicated that this conclusion of the High Court could not be contested in the present appeal. The appellant’s counsel, however, argued that the principal charge of conspiracy should not have been framed against the appellant and that the trial had been unnecessarily complicated by the addition of several other charges on the basis that those offences were alleged to have been committed in furtherance of the main conspiracy. He relied heavily on the trial Court’s explicit finding that the conspiracy had not been established, and he contended that the breach of trust for which the appellant had been convicted should have been tried separately, without joining other parties or other charges. The Court examined this line of argument and found it untenable. It noted that Section 239(d) expressly permits a joint trial of persons accused of different offences when those offences arise out of the same transaction, and that the appropriate inquiry for such a joint trial is the nature of the prosecution’s accusation.

The Court explained that it would be unreasonable to suggest that, even if the prosecution’s accusation warranted a joint trial of multiple persons, the validity of that trial could be contested merely because the accusation had not been proved according to law. While acknowledging that courts must scrutinise the nature of the accusation when framing charges against more than one person and ordering a joint trial, the Court held that if the prosecution’s allegation, on its face, shows that several persons are charged with distinct offences that appear to have been committed in the course of the same transaction, then a joint trial may and should be ordered. The Court cited the Privy Council decision in Babulal Choukhani v Emperor, which held that the test for whether the offences were committed in the same transaction is to be applied at the time the accusation is made, not at the end of the trial when the result is known. Accordingly, the Court rejected the appellant’s contention that the framing of the conspiracy charge was unjustified and that the joint trial of the appellant with other persons was improper or illegal.

In addressing the contention that the prosecution should not have included the appellant in the joint trial for the specific breach of trust act described in charge six, the Court found the contention to be wholly untenable. The statute governing such situations is Section 235(1) of the Code, which provides that when a series of acts are so connected as to constitute the same transaction, and a single individual commits more than one offence within that series, that individual may be charged with each offence and may be tried for all of them in a single trial. Separately, Section 239(d) permits the joinder of multiple persons in a criminal trial. Section 235(1) likewise permits the joinder of multiple charges, subject to the conditions set out in those two provisions. Accordingly, these sections constitute an exception to the general rules laid down in Section 233 and to the limitation expressed in Section 234(2). Consequently, there is no doubt that, in a case involving conspiracy, where specific offences are carried out in furtherance of the conspiracy, every person who participates in the conspiracy and who is also involved in the specific offences may lawfully be tried together in the same proceeding. The principle was illustrated in the earlier decision of Rash Behari Shaw v. Emperor. The statutory scheme therefore permits the prosecution to proceed with the joint trial for the appellant notwithstanding the specific breach of trust allegation.

The final argument presented by counsel for the appellant was that the charge under consideration violated the mandatory requirements of the proviso to Section 222(2) of the Code, and that such a violation vitiated the entire trial, rendering the conviction and sentence void. Section 222, found in Chapter XIX, prescribes the form of charges. Sub-section (1) requires that a charge contain the particulars of the time and place of the alleged offence, thereby ensuring that the accused receives a reasonably sufficient notice of the matters alleged against him. Sub-section (2) deals specifically with charges of criminal breach of trust and states that it is sufficient to specify the gross sum involved and the dates between which the breach was committed. The proviso adds that it is unnecessary to list particular items or exact dates so long as the period between the first and the last of those dates does not exceed one year. It was undisputed that the breach of trust forming the first count of the sixth charge spanned the period from April 1949 to October 1951, a duration of more than one year, and that this was the basis of the appellant’s objection. The Court had already considered the effect of Section 235(1), which allows multiple offences committed by conspirators to be tried together when all conspirators are jointly tried; in that context, Section 234(2) could not be invoked. Accordingly, the appellant’s submission amounted only to the contention that the wording of the charge was inconsistent with the proviso to Section 222(2). The Court noted that if the first count of the sixth charge had been

In this case the Court observed that the prosecution had not divided the first count into two separate sub-counts, each of which would have identified the amount involved in the breach of trust for a period not exceeding one year as required by the proviso to Section 222 (2). The Court held that the failure to make such a division did not create a fatal defect in the trial’s validity. It noted that the argument advanced was not one of misjoinder; rather, it concerned the formal requirement set out in the proviso to Section 222 (2) regarding the framing of breach-of-trust charges. The Court explained that this irregularity could be remedied under both Section 225 and Section 537 of the Code, provided that no prejudice was caused to the appellant’s case.

The Court further explained that a breach of any provision of the Code does not automatically invalidate a trial. It referred to the recurring judicial question concerning the effect of violations of statutory provisions within the Code. In the decision of Pulukuri Kottayya v. Emperor, 74 Ind App 65 (AIR 1947 PC 67), the Privy Council held that when a criminal trial is substantially conducted in accordance with the Code, any irregularity that occurs can be cured under Section 537, even though the irregularity usually involves a breach of one or more comprehensive provisions of the Code. The Court stressed that Indian case law often distinguishes between an illegality and an irregularity by degree rather than by kind. In Pulukuri Kottayya, the irregularity consisted of a breach of Section 162 of the Code; after examining the facts, the Privy Council concluded that the breach caused no prejudice to the accused and could not render the trial defective.

Similarly, the Court cited Abdul Rahman v. King Emperor, where the Privy Council examined a breach of Section 360 of the Code. Applying the test of actual or possible failure of justice, the Council found that the breach did not vitiate the trial. The Court also observed that, even in cases of misjoinder involving contravention of Section 234 of the Code, misjoinder alone would not invalidate a trial unless prejudice to the accused was demonstrated. The Court noted that Mr Purshottam did not dispute this principle. In the present matter, the Court emphasized that no misjoinder occurred; consequently, considering the nature of the principal charge framed against the appellant and the other accused, the argument that the breach of the proviso to Section 222 (2) automatically invalidated the trial was rejected.

The Court observed that, since the charge also concerned other accused persons, the contention that a breach of the proviso to Section 222 (2) necessarily invalidates the trial must be rejected. This observation led the Court to consider the remaining issue, namely whether any prejudice or failure of justice had been caused to the appellant. The High Court had already examined this issue and had recorded a finding that no prejudice had been caused to the appellant sufficient to amount to a failure of justice. The High Court’s finding was based on the fact that the amount of money involved in the breach of trust had been combined into a single charge, even though the alleged breach spanned a period longer than one year as prescribed by the proviso to Section 222 (2). The High Court further noted that the appellant had been acquitted of the principal charge of conspiracy as well as of the other subsidiary charges that had been framed at trial. Moreover, the charge on which the appellant was ultimately convicted was described by the High Court as a straightforward and simple charge. The Court pointed out that the appellant was fully aware of the case he needed to meet under that charge and that he had actually led evidence in support of his defence with respect to that charge. Consequently, the Court concluded that the finding of the High Court – that no prejudice to the appellant had occurred – could not be successfully challenged by Mr. Purshottam in the present appeal. Accordingly, the order of conviction and sentence pronounced by the High Court was confirmed and the appeal was dismissed.