Purushottamdas Dalmia vs The State Of West Bengal on 19 April, 1961

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

Court: supreme-court

Case Number: Not extracted

Decision Date: 19 April 1961

Coram: K. Subba Rao, Raghubar Dayal

In this appeal, which was granted special leave to be heard by the Supreme Court of India, the petitioner Purushottamdas Dalmia sought review of an order dated 16 May 1958 issued by the Calcutta High Court. That High Court order had summarily dismissed the petitioner’s challenge to a conviction rendered by a learned Single Judge after a jury trial. The conviction was for offences punishable under section 120B read with section 471 of the Indian Penal Code, together with two separate counts under section 471 read with section 466 of the same Code, the latter relating to two specific documents. A co‑accused, identified as L. N. Kalyanam, had been tried in the same proceeding and found guilty of offences under section 120B read with section 471, two counts under section 466, and an additional offence under section 109 read with section 471 of the Indian Penal Code. Unlike the petitioner, Mr Kalyanam chose not to file any appeal against his conviction.

The prosecution case was based primarily on the petitioner’s role as a partner in a firm called Laxminarayan Gourishankar, whose principal office was situated in Gaya and which maintained a branch at Calcutta, located at 19 Sambhu Mallick Lane. On 26 April 1952, the petitioner applied for a licence authorising the import of art‑silk yarn valued at one crore rupees. A provisional licence was issued by the Joint Chief Controller of Imports, Calcutta, on 2 May 1952. Under the applicable regulations, the licence required confirmation within two months by the Deputy or Chief Controller of Imports, after which it would become valid for one year. Failure to obtain such confirmation within the stipulated period would result in automatic cancellation of the licence. The provisional licence was not confirmed within the two‑month window, and the petitioner was duly informed that the licence would be refused confirmation. The petitioner appealed this refusal, but the appeal was rejected in September 1952, and the provisional licences were returned. A letter dated 26 September 1952, issued from the office of the Joint Chief Controller of Imports, communicated the dismissal of the appeal and the return of the licence to the petitioner.

Instead of acting on the instruction contained in the earlier letter, the appellant filed an application on 7 October 1952 requesting that his correspondence be returned to him. The authorities complied, and the requested documents were handed back to the appellant on 9 October 1952. No further action or communication took place concerning his licence until the end of March 1953. On 31 March 1953 the appellant drafted a lengthy letter addressed to the Chief Controller of Imports in New Delhi. In that letter he expressed his grievance regarding the conduct of the Joint Chief Controller of Imports and Exports in Calcutta and pleaded for a sympathetic reconsideration of his case. The Chief Controller replied by a letter dated 20 April 1953, informing the appellant that the order issued by the Joint Chief Controller could not be revised for the reasons set out in that communication. The reply, however, contained an error in the numerical identifier of the appellant’s firm, stating it as “16” whereas the correct number should have been “19”. Apart from this mistake, the address and other particulars in the letter were correct. The appellant subsequently claimed that he never received this letter from the Chief Controller.

In August 1953 the appellant encountered a man named L. N. Kalyanam in Calcutta. Kalyanam informed the appellant that he might be able to secure validation of the licence through the assistance of an acquaintance in Delhi named Rajan. Following this suggestion, both Kalyanam and the appellant travelled to Delhi in August 1953 and met Rajan. The appellant handed over the file containing his licences to Kalyanam, who then passed the same file to Rajan. Within two to three days Kalyanam returned the licences to the appellant. The returned licences bore what were alleged to be forged endorsements. One endorsement purported to confirm the licence and was dated 2 July 1952; the other purported to re‑validate the licence and was dated 25 April 1953. These forged endorsements were claimed to extend the validity of the licence until 2 May 1954.

Subsequent to receiving the allegedly re‑validated licence, the appellant placed orders for goods on its basis. When the goods arrived, an attempt was made to clear them at the customs office in Madras. The clearing officials there examined the confirmation and re‑validation endorsements and harboured serious doubts about their authenticity. Their suspicions were confirmed upon further scrutiny, and the officials referred the matter to the police. The police investigation and preliminary inquiry led to the appellant and Kalyanam being committed to the High Court for trial.

The trial proceeded with the framing of eight separate charges. The first charge alleged a criminal conspiracy between the two accused. It specified that Purushottamdas Dalmia and L. N. Kalyanam, together with one or more unknown persons, between April and December 1953, at locations including Calcutta, Howrah, Delhi, Madras and other places, were parties to a conspiracy to commit an offence punishable by rigorous imprisonment of two years or more. The offence described was forgery by means of a certificate or endorsement purporting to be a confirmation and another endorsement purporting to be a validation of Import Trade Control Licence number 331913/48 (the Exchange Control copy being Exhibit 5 and the Customs copy being Exhibit 6). The forged endorsements were presented as if they had been made by public servants, namely the officers and staff of the Chief Controller of Imports and Exports.

The indictment comprised eight distinct charges. The first charge alleged that the two accused, namely Purushottamdas Dalmia and L.N. Kalyanam, had entered into a criminal conspiracy between April and December 1953 in Calcutta, Howrah, Delhi, Madras and other places. The alleged conspiracy was to commit an offence punishable by rigorous imprisonment of two years or more, specifically the offence of forging a certificate or endorsement of confirmation and validation of Import Trade Control Licence No. 331913/48. The forged documents were said to include the Exchange Control copy (Exhibit 5) and the Customs copy (Exhibit 6), both purportedly made by officers of the Chief Controller of Imports and Exports. The charge further alleged that the accused used the said licence, containing the forged certificates and endorsements, either fraudulently or dishonestly, knowing or having reason to believe that the documents were forged, thereby committing an offence punishable under Section 120B read with Section 466 and/or Section 471 read with Section 466 of the Indian Penal Code.

Charges two, three and four related to false endorsements on the Exchange Control copy (Exhibit 5). Charge two, framed under Section 466 of the Indian Penal Code, was directed solely against Kalyanam. Charges three and four were framed against the appellant, Purushottamdas Dalmia, for abetting Kalyanam’s forgery and for using the forged document as genuine. Charges five, six and seven dealt with similar matters concerning the Customs copy (Exhibit 6). The eighth charge, also against Kalyanam alone, alleged that he abetted the appellant in fraudulently and dishonestly treating the Customs copy as genuine.

The jury returned a verdict of not guilty on charges three and six and also on the conspiracy charge under Section 120B read with Section 466. The jury found the appellant guilty of the conspiracy charge under Section 120B read with Section 471, as well as on charges four and seven. It was not contested that forgeries had indeed been made in both Exhibit 5 and Exhibit 6.

Counsel for the appellant raised several points. First, he argued that the offences of using the forged documents as genuine were committed in Madras, and therefore the Calcutta courts lacked jurisdiction to try those offences under Section 471 read with Section 466. Second, he contended that alternative conspiracies could not be charged because each must arise from a distinct agreement among conspirators. Third, he alleged that the trial judge misdirected the jury by presenting certain matters in a misleading manner. The alleged misdirections included: (a) that the accused must have known, from the ante‑dating of the confirmation endorsement, that the re‑validation of the licence was a forgery; (b) that even if a proper departmental officer had signed the re‑validation, it would still constitute a forgery because of the ante‑dating; (c) that a letter from the Chief Controller of Imports and Exports dated 20 April 1953, although addressed incorrectly, must have been received by the appellant; and (d) that the judge’s strong expressions of opinion could have unduly influenced the jury’s deliberations, compelling it to reach the same conclusions.

The appellant further submitted that the jurisdiction of the Calcutta High Court to try a criminal conspiracy under Section 120B of the Indian Penal Code was...

It was not contested that the court possessed jurisdiction to try the offence of criminal conspiracy under section 120B of the Indian Penal Code. It was also not contested that the overt acts which were carried out in furtherance of the conspiracy formed part of the same transaction that encompassed the conspiracy itself and the acts executed pursuant to it. Nevertheless, the appellant argued, relying on section 177 of the Code of Criminal Procedure, that a court which had jurisdiction to try the conspiracy could not also try the separate offence constituted by those overt acts when those acts were committed outside the territorial jurisdiction of that court. The appellant supported this position by citing the decision in Jiban Banerjee v. State, a case which, on its face, appeared to uphold the appellant’s contention. The present Court examined that precedent with care and concluded that the decision in Jiban Banerjee had not been correctly decided.

The Court observed that it is plainly desirable to try the offence of criminal conspiracy together with all overt acts that were committed in furtherance of that conspiracy. To prove the conspiracy, the prosecution must introduce evidence of the overt acts, and that evidence will inevitably be subjected to cross‑examination by the accused. The trial judge will then have to assess the credibility of the evidence and, based on that assessment, decide whether the conspiracy has been established. Once that determination is made, the same judge can readily render a verdict of guilty or not guilty against the individuals who actually performed the overt acts. If some of those overt acts had occurred outside the jurisdiction of the court hearing the conspiracy charge, and if the law were interpreted to bar that court from trying those acts, the prosecution would be forced either to abandon the prosecution of the accused for those acts or to initiate a second proceeding in another court. This would require the prosecution to present the same evidence again and would compel the accused to undergo a second round of credibility testing, thereby creating unnecessary duplication of effort and expense. Moreover, a second court might reach a different conclusion, giving rise to the risk of inconsistent judgments. The Court also noted that a later court could be urged to refrain from reaching a different conclusion on the basis of what had been said in Pritam Singh v. The State of Punjab, quoting: “The acquittal of Pritam Singh Lohara of that charge was tantamount to a finding that the prosecution had failed to establish the possession of the revolver Ex. P‑56 by him. The possession of the revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he had been charged. That fact was found against the prosecution and having regard to the observations of Lord MacDermott quoted”.

The Court observed that, as stated in the earlier citation, the evidence could not be proved against Pritam Singh Lohara in any further proceedings between the Crown and him. In the present circumstances, the Court held that the provisions of the Code of Criminal Procedure should not be interpreted narrowly solely on the basis of the construction advanced by the Calcutta High Court. Rather, the provisions should be read so as to give the court that is trying the offence of criminal conspiracy the power to try all overt acts that were carried out in furtherance of that conspiracy. The Court found no persuasive reasons to endorse the narrow view expressed by the Calcutta High Court.

The Court then explained that the legislature attaches great importance to the jurisdiction of courts that try offences. It distinguished two kinds of jurisdiction. The first kind relates to a court’s authority to try particular categories of offences; this goes to the very root of the matter, and if a court lacking such authority attempts to try an offence, the entire trial is void. The second kind is the territorial jurisdiction of a court, which the Court said does not enjoy the same level of importance. This view is reflected in sections 178, 188, 197(2) and 531 of the Criminal Procedure Code. Section 531 provides that no finding, sentence or order of any criminal court shall be set aside merely because the inquiry, trial or other proceeding in which it was rendered took place in an incorrect sessions division, district, subdivision or other local area, unless it appears that such error actually caused a failure of justice.

The Court explained that the disparity in consequence between a trial conducted by a court that lacks substantive jurisdiction and a trial conducted by a court that has substantive jurisdiction but lacks territorial jurisdiction is understandable. The power to try offences is conferred on courts according to the legislature’s assessment of each court’s capability and responsibility; a higher degree of capability and responsibility justifies a broader substantive jurisdiction over offences. Territorial jurisdiction, by contrast, is provided mainly for administrative convenience, taking into account the work‑load of the court, the convenience of the accused, and the convenience of witnesses. Accordingly, section 177 requires that an offence ordinarily be tried by a court within the local limits of whose jurisdiction the offence was committed.

The Court quoted the observation made in Assistant Sessions Judge, North Arcot v. Ramaswami Asari [(1914) I.L.R. 38 Mad. 779, 782], noting that the scheme of Chapter XV, sub‑chapter (A), which contains sections 177 to 189, appears intended to enlarge as far as possible the range of sites where a trial may be held and to minimise the inconvenience to the prosecution that would arise from a technical plea that the offence was not committed within the local limits of the trying court. Finally, the Court pointed out the significance of the difference in language between section 177 and section 233. Section 177 merely states that ordinarily every offence should be tried by a court within the local limits of its jurisdiction, without making this requirement peremptory or exclusive, thereby leaving the place of trial open. Consequently, there is no reason why the provisions of sections 233 to 239, which also provide exceptions, cannot be read as permitting the trial of a particular offence together with other offences in a single proceeding.

The Court observed that the purpose of the provision is to expand the range of locations where a trial may be held and to reduce the inconvenience to the prosecution that might arise from a technical defence claiming that the offence occurred outside the local limits of the trial court’s jurisdiction. The Court then turned to the distinction between section 177 and section 233 of the Code. Section 177 states simply that, ordinarily, every offence should be tried by a Court within the local limits of the jurisdiction in which the offence was committed. The provision does not limit the trial to such a Court only in the situations listed in sections 179 to 185 and 188, nor does it refer to any other special statutory provision. Consequently, section 177 leaves the question of the place of trial open and is not expressed in a peremptory manner. The Court further noted that there is no reason why the provisions contained in sections 233 to 239 could not operate as exceptions to section 177 if those sections allow a particular offence to be tried together with other offences in a single Court.

In contrast, section 233 deals with the charging and trial of offences and provides a strict rule. It reads: “For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239.” The Court emphasized that the language of section 233 is very peremptory and commands that each distinct offence must be charged separately and tried separately, unless an exception listed in sections 234, 235, 236 or 239 applies. The Court acknowledged that sections 235 and 239 do not expressly state that their provisions permit the joint trial of offences or of persons regardless of whether the offences were committed within the jurisdiction of the trial Court. However, the Court held that the proper interpretation is that these sections do not require all offences or persons to be within the same territorial jurisdiction for a joint trial. The provisions are framed in general terms. Sub‑sections (1) to (3) of section 235 allow offences to be charged and tried together in a single trial, and they permit that trial to be conducted in any Court that has jurisdiction over any one of the offences that occurred as part of the same transaction. The illustrations provided for section 235 make no reference to the places where the offences were committed; illustration (c), for example, can apply even when the offences were committed in different territorial jurisdictions. Similarly, section 239 provides for the joint charging and trial of various persons involved in the same transaction.

The Court observed that when several individuals are charged and tried together for the same offence arising out of a single transaction, it may happen that those individuals are also accused of different offences that took place during the same transaction. The Court explained that such persons would not be tried together if any of the offences were committed outside the territorial jurisdiction of the Court that could try the remaining offences, provided that the appellant’s contention were accepted. Accepting that contention would, in effect, create an exception to sections 235 and 239 of the Code by construction. The Court then noted that sections 235 and 239 are enabling provisions. Because the Legislature chose not to use language that would obligate a Court to try a person for all the offences in one trial, or to try various persons for different offences committed in the same transaction together, the omission of a peremptory requirement does not necessarily indicate that the Legislature intended to prevent a Court, which has jurisdiction over certain offences, from trying an additional offence that is part of the same transaction but lies beyond its territorial jurisdiction.

The Court further stated that no definitive conclusion could be drawn about legislative approval of the interpretation of sections 235 and 239 given by the Calcutta High Court in Bisseswar v. Emperor or by the Madras High Court in In re: Dani and in Sachidanandam v. Gopala Ayyangar [(1929) I.L.R. 52 Mad. 991, 994], especially because another case expressing a contrary view had been reported. The Court remarked that the body of case law relevant to the issue was sparse. The Court then referred to the decision in Gurdit Singh v. Emperor [(1917) 13 Crl. L.J. 514, 517], where the conspiracy to murder was formed in the Montgomery district of Punjab and the attempted murder was carried out within the jurisdiction of the Magistrate at Roorkee in the United Provinces. The Court quoted Justice Broadway, J.: “It appears that, rightly or wrongly, an allegation has been made that the abetment by conspiracy or by instigation took place in the Montgomery District, and that, therefore, the case can be tried either at Roorkee or in Montgomery. Section 180, Criminal Procedure Code, is clear on this point and no further discussion is needed.” The Court also discussed In re: Govindaswami, wherein a person murdered A and B on the same night, the two houses being separated by a street that formed the boundary between two districts. The accused was sent for trial before the separate Courts having jurisdiction over the murder of A and the murder of B. The learned Judges observed that these two murders, committed consecutively by the same appellant on the same night, presented an additional aspect worthy of comment.

The Court observed that because the two murders arose from the same confession, they ought to have been tried before a single Sessions Judge. However, the street separating the houses of Govindan Servai and Malayappa Konan formed the boundary between the districts of Tiruchirapalli and Tanjore. As a result, one murder was committed within the territorial jurisdiction of the Sessions division of Tiruchirapalli and the other within the jurisdiction of the Sessions division of Tanjore. This jurisdictional divide appears to have been the only reason why two separate charge‑sheets were prepared for the two killings. The learned Public Prosecutor agreed that no legal impediment existed to trying both murders together under section 234(1) of the Criminal Procedure Code and stressed that it was evident that one court should have dealt with both offences. The Court further held that if the provisions of section 234 were subject to sections 177 to 188, which govern the territorial jurisdiction of criminal courts, neither of the two Sessions Courts could have tried both cases together. In the earlier decision of Sachidanandam v. Gopala Ayyangar, Justice Odgers, relying on Bisseswar v. Emperor, determined that when the abatement of an offence occurs outside a court’s territorial jurisdiction, that court cannot invoke section 239 to try the abatement along with the principal offence. He expressed doubt but, after giving due consideration to the opinion of the Calcutta High Court, suggested that jurisdiction, being the foundation of the charge, is presumed to be present throughout the procedural steps of the Code and therefore must govern section 239. The Court noted that legislative approval of a particular construction of an Act’s provisions is presumed only when a consistent series of cases have adopted that construction. Finally, the Court found implied support for its view in the observations of the Judicial Committee in Babulal Choukhani v. The King Emperor, which held that section 239(d) imposes no limit on the number of offences, the sole limitation being that the offences must be “committed in the course of the same transaction.” The Committee explained that the phrase “the same transaction” includes conspiracies wherein several persons commit overt acts in pursuance of the conspiracy, and such acts are regarded as part of the same transaction, encompassing both the conspiracy and the acts performed.

The Court observed that the only restriction on a court’s power to join several accused in a single trial under clause (a) of section 239 of the Criminal Procedure Code is that the accusation must relate to offences committed in the course of the same transaction. It emphasized that the common concert and agreement which create the conspiracy serve to unite the acts performed in furtherance of that conspiracy. Accordingly, the Court held that because the overt acts alleged against the accused were performed pursuant to a single conspiracy, the offences were necessarily “committed in the course of the same transaction.” Consequently, persons charged with such offences may be tried together under the said provision. Applying this principle, the Court concluded that the Calcutta Court possessed jurisdiction to try the appellant for offences alleged under section 471 read with section 466 of the Indian Penal Code, even though the acts forming part of the conspiracy were carried out at Madras. This held that geographic location of the overt acts did not defeat the requirement of a common transaction for jurisdiction.

The Court then turned to the appellant’s second contention, which claimed that he had been charged with two alternative conspiracies and that such a charge was impermissible. The Court rejected this view, explaining that the charge was in fact a single conspiracy to commit an offence punishable with rigorous imprisonment of two years or more. The charge described the substantive offence in alternative terms: either the conspiracy involved forging a document and subsequently using the forged document, or it involved fraudulently or dishonestly using a licence containing forged certificates and endorsements. The phrase “and/or” in the charge was interpreted to mean that the conspirators could be liable for either using a forged licence, for forging the licence itself, or for both acts. Thus, the charge did not describe two distinct conspiracies but one conspiracy whose exact scope, pending evidentiary determination, could encompass either or both described offences. The Court noted that the learned Judge, in his charge to the jury (page 14), explained that the alternative language reflected uncertainty about whether the accused had agreed to commit the forgery or merely to use a forged document knowingly. The Court found that this mode of charging was authorised by section 236 of the Code of Criminal Procedure and concluded that the charge of conspiracy was not illegal. After a careful review of the alleged misdirections in the charge to the jury, the Court held that no defect existed in the charge.

In this case the charge presented to the jury was framed in alternative terms. The prosecution alleged that the accused either entered into an agreement to fabricate the document itself, including the forgery of any endorsements of confirmation or re‑validation, or that they agreed to use a document that they knew to be forged. Consequently the charge contained both “and/or” language, covering the possibility that the accused agreed to commit forgery, agreed to use a forged document, or agreed to do both – that is, to forge the document and subsequently use it while aware of its falsity. The Court observed that such a formulation of the charge is permissible under section 236 of the Code of Criminal Procedure. Accordingly, the Court expressed the view that the conspiracy charge did not suffer any legal defect.

The Court examined the submissions that the charge to the jury was misdirected. It concluded that the charge was not defective. While the trial judge at certain points articulated, in unequivocal terms, his personal interpretation of specific pieces of evidence, the Court held that these statements were not made in a manner that would compel the jury to adopt the judge’s view. The judge repeatedly reminded the jury that it was not bound by his opinion, that it must reach its own conclusions on factual matters, and that the determination of facts was exclusively the jury’s function. The Court further held that it was proper for the judge to instruct the jury that, even if the endorsements had been applied by a competent departmental officer but were dated earlier than the actual time of execution, such ante‑dating would constitute forgery. This reflects the correct legal principle that an ante‑dated endorsement creates a false document, and that knowledge of the ante‑dating necessarily implies knowledge of the forgery.

The Court also considered the argument that a mistake in a letter dated 20 April 1953, sent by the Chief Controller of Imports and Exports, rendered the letter undeliverable to the intended recipient. The appellant’s business was situated at 19, Sambhu Mallick Road, while the letter bore the address “Shop No 16.” The Court noted that Shop No 16 was in close proximity to Shop No 19, and that the same postman would normally deliver mail to both premises. Postal workers become familiar with regular addressees by name and are accustomed to locating them even when there are minor errors or omissions in the address. No evidence was adduced showing that the letter had been returned to the dead‑letter office or to the Chief Controller. If the postman delivered the correspondence to Shop No 16, ordinary practice would require the occupant of that shop to forward the letter to the neighbouring Shop No 19, where the appellant’s firm was located. The Court therefore found no basis to conclude that the letter failed to reach the appellant.

The Court observed that the appellant’s failure to make any enquiry as to the result of his representation to the Chief Controller of Imports and Exports suggested that the appellant had in fact received the reply from that official. Consequently, the Court held that an opinion expressed by the trial judge that the letter from the Chief Controller would have reached the appellant could not be characterised as a misdirection of the jury. The Court further stated that the learned judge was entirely justified in inviting the jury to consider the probabilities of the case, particularly because no direct evidence existed concerning the incidental matter of the letter’s delivery. In addition, the Court found that the arguments raised by the appellant did not amount to any misdirection of the jury. On the basis of these observations, the Court concluded that the appellant’s appeal lacked any substantive merit. Accordingly, the Court dismissed the appeal and ordered that the appeal be dismissed.