Banwari Lal Jhunjhunwala And Ors. vs Union Of India (Uoi) And Anr.

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 21 November 1962

Coram: K. Subba Rao, Raghubar Dayal

In this case, the Court noted that three appeals were filed by way of special leave against a criminal proceeding that was pending before the Special Judge in Poona. The criminal proceedings, recorded as Criminal Appeals Nos. 113 and 114, concerned the appellants who were accused of offences arising out of a contract for the supply of timber to the Indian Railways. The first two appellants, Banwari Lal Jhunjhunwala and Champalal Jhunjhunwala, were identified as partners in a business entity called Shreeram Ramniranjan. Two further appellants, I.R. Oza and Gajraj Tiwari, were described as employees of that firm. The appellant in Criminal Appeal 114, identified as V.A. Thomson, held the position of Assistant Works Manager (Timber Inspection) with Central Railways at Matunga, Bombay, at the relevant time.

The Court explained that the firm had entered into a contract in 1955 with the Director General of Supplies and Disposals, New Delhi, for the provision of 1,306.5 tons of bottom boards made of certain specified varieties of hardwood, intended for use in railway wagons belonging to the Central Railway Administration. The aggregate contract price for the entire supply was Rs 3,99,556‑8‑0. The timber was to be delivered to three separate locations in differing quantities: 630 tons were to be consigned to the District Controller of Stores, Central Railways, C.W.E., Matunga, Bombay; 26½ tons were to be supplied to the Assistant Controller of Stores at Lallaguda; and 650 tons were to be delivered to the Assistant Controller of Stores at Jhansi. Before delivery, the wood was required to be inspected by the Chief Engineer (Sleeper Passing Branch) of Southern Railway, Madras, or by an officer acting on his behalf. The designated places of inspection were Kallayi, Mangalore and Vallapatnam, the first and the last of which lay within the State of Kerala. Payment for the timber was to be made by the Pay and Accounts Officer of the Ministry of Works, Housing and Supply, New Delhi. The procedure for payment stipulated that, immediately after dispatch, the contractor could submit a bill and claim ninety per cent of the contract price, provided that the first copy of the inspection note was attached. The remaining ten per cent of the price would be released later, when two additional copies of the inspection note and certain other required documents were produced. Subsequently, after the tender had been accepted, the District Controller of Stores, Central Railways, C.W.E. Depot, Matunga, was added as the Inspection Authority and Inspection Officer for the portion of wood destined for that depot. Later, the Chief Mechanical Engineer of Central Railways, Bombay, was appointed as the Inspection Authority, and the Assistant Works Manager (Timber Inspection) of C.W.E. Central Railways, Matunga, Bombay, was designated as the Inspecting Officer. The locations for inspection were altered to Bombay, Calicut and Baliapatam, and the contract period was extended, increasing the total contract value to Rs 4,08,741/‑.

In this case, the prosecution alleged that the timber actually delivered was of an inferior quality and that the officer named Thomson together with other officials had issued false inspection notes that falsely certified the wood as meeting the required specifications. According to the allegation, the reliance on those fabricated inspection notes enabled the firm to obtain a payment of rupees three lakh seventy‑seven thousand seven hundred seventy‑one from the Pay and Accounts Officer in the Ministry of Works, Housing and Supply, Government of India.

The matter first came before the Special Judge in Kerala, where six charges were framed against the accused. The first charge, which named all the accused, invoked Section 120‑B of the Indian Penal Code for conspiracy. The second charge targeted the two partners of the firm and was based on Section 420 of the Indian Penal Code for cheating. Charges three and four were framed against two employee‑appellants for an offence under Section 420 read with Section 109 of the Indian Penal Code. The fifth charge, of a similar nature, was directed at Thomson, while the sixth charge, also against Thomson, alleged an offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, claiming that he had abused his official position to obtain a pecuniary advantage for the partners of the firm. The second charge specifically related to the firm receiving rupees one lakh forty‑one thousand three hundred nine for the supply of five hundred twenty‑one tons of timber. The sixth charge further asserted that Thomson, by abusing his public office, obtained personal benefit from the partners of the firm.

Subsequently, the Supreme Court transferred the case from the Special Judge in Kerala to the Special Judge in Poona. The Poona Special Judge amended the charges and appended a seventh charge against the four appellants associated with the firm, accusing them of abetting Thomson in committing the offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act. The amendment to charge two expanded the allegation to cover the entire quantity of wood, namely one thousand three hundred six and a half tons, and the receipt of rupees three lakh seventy‑seven thousand seven hundred seventy‑one. The amendment to charge six clarified that Thomson, by abusing his public position, obtained personal advantage from the firm’s partners. The accused‑appellants filed a revision before the Bombay High Court, challenging the legality and propriety of the various charges. The High Court ordered minor modifications to the charges, which are not the focus here, and limited charge two to the supply of five hundred twenty‑one tons of wood and the receipt of rupees one lakh forty‑one thousand three hundred nine, reasoning that the Kerala Special Judge lacked jurisdiction to try offences relating to timber supplied outside its territorial jurisdiction. The Union of India subsequently filed Criminal Appeal No. 190 of 1961, contesting the High Court’s order that restricted charge two to the five hundred twenty‑one tons and the lesser sum.

The Court reproduced the portion of the charge of conspiracy that was directed against all of the accused, stating: “That you all between July 1955 and September 1956 at Bombay, Baliapatam, Kannanore, Calicut, Ferok, Kallayi entered into conspiracy, by agreeing among yourselves to commit illegal acts and/or acts by illegal means, to wit, to supply in fulfilment of the contract ‘bottom boards’ in inferior jungle wood and not in the species of Aine, Kalpine and Haldu, as agreed to supply as per contract and tender, referred to above, to have the said bottom boards fraudulently passed by accused No. 5, by abusing his position as public servant by corrupt and illegal means to get false inspection notes and certificates from accused No. 5 and others to the effect that the bottom boards were of the species of Aine, Kalpine and Haldu as per species and specifications detailed in the said contract, when to your knowledge they were not, but were of inferior jungle wood and which inspection notes and certificates were issued by accused No. 5 by abusing his position as public servant by corrupt and illegal means to obtain pecuniary advantage for himself and for others i.e., accused Nos. 1 and 2; to induce the Assistant Pay and Accounts Officer in the Ministry of Works, Housing and Supply to part with a sum of Rs. 3,77,771/‑ as value thereof, by claiming in bills, supported with inspection notes, which acts amount to ‘offence’ punishable under sections 420 and 109 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947, and thereby committed an offence punishable under section 120‑B of the Indian Penal Code.” The appellants, in appeal No. 113 of 1961, argued that each separate bill that resulted in receipt of money constituted a distinct offence and that, in accordance with section 233 of the Code of Criminal Procedure, a separate charge should have been framed for each such offence. They further contended that the charge as framed improperly amalgamated numerous cheating offences arising from the presentation of eighteen or nineteen bills, thereby violating the provisions of section 233. The appellants also submitted that the cheating charge ought to have been framed only against the individual accused who submitted each bill and obtained the money. The High Court examined these objections and held that a schedule setting out the details of each cheating item satisfied the legal requirements. It observed that the bills were presumably signed by the firm in the same manner as the forwarding letters, and consequently both partners could be properly charged with the offence of cheating. The Court further explained that the cheating was carried out in pursuance of the conspiracy entered into among the various accused. The essential features of that conspiracy were that, under the contract for the supply of 1,306 ½ tons of specified wood, inferior wood was to be supplied, and that the success of the scheme depended on obtaining false inspection certificates, which would be used to support the fraudulent bills.

In the scheme that the appellants had devised, the false inspection notes obtained from the Inspecting Officers were intended to be attached to the bills that were presented as if they were for the supply of wood conforming to the stipulated specifications. The purpose of the conspiracy was to cause the Government to pay the full contract price while the material actually delivered was of inferior quality compared with that which had been promised under the contract. The contract required the supply of one thousand three hundred six and a half tons of specified wood, but the delivery could not be accomplished in a single operation even if it were to be made at a single location. In practice the delivery was to be carried out at three distinct locations. Wood that had been inspected at a particular inspection point could be divided and dispatched to any of the three places of supply. Accordingly, a bill could represent the supply made at a given moment either to a single place or to more than one place. From these facts it follows that the conspiracy was not aimed at obtaining the contract price in several separate portions by cheating on each individual transaction; rather, it was aimed at obtaining the entire contract price by means of cheating. This reasoning supports the view that the conspirators contemplated a single offence, namely the offence of obtaining, by cheating, the whole amount due under the contract for the material supplied. Accordingly, the charge that had been framed under section 420 of the Indian Penal Code did not run afoul of the requirement of section 233 of the Code of Criminal Procedure.

Another way of looking at the same set of facts is to treat each bill that was supported by a false inspection note as giving rise to an individual offence of cheating carried out in pursuance of the conspiracy. Each of those individual offences, however, was of the same character as the single offence of obtaining the total contract price through the presentation of the various bills. Section 71 of the Indian Penal Code provides that when an offence consists of several parts, each of which is itself an offence, the offender shall not be punished for more than one such offence unless the statute expressly provides otherwise. The illustration in that provision explains that a person who inflicts fifty blows with a stick may be said to have committed the offence of voluntarily causing hurt by the whole beating as well as by each individual blow, but the law permits only a single punishment for the whole beating and not a separate punishment for each blow. In the present case the whole beating corresponds to the single offence of cheating by obtaining the entire contract sum, while each blow corresponds to the cheating involved in obtaining money on the basis of an individual bill. Thus, although the obtaining of money on the presentation of each individual bill constituted an offence of cheating, the overall conduct that resulted in the receipt of the entire contract amount under the single contract and the single conspiracy also constituted one offence. Consequently, the accused could not be punished for more than one offence arising from the same course of conduct, and the law does not intend that the accused be charged separately for each of the constituent offences that are subsumed within the complete offence made up by the entire conspiracy.

In this case the Court observed that the offence of cheating, although it may contain several acts that individually could constitute separate offences, must be treated as a single offence for the purpose of punishment. Accordingly, when the law does not permit the imposition of multiple punishments for more than one such offence, it cannot be the intention of the legislature to charge the accused with each of the constituent offences that are subsumed within the overall conduct pursued in furtherance of the conspiracy. The Court then turned to the language of Section 233 of the Code of Criminal Procedure, which provides that “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.” It held that the phrase “every distinct offence” must be understood as having a different import from the broader expressions “every offence” or “each offence.” A separate charge is required for each distinct offence, but this requirement does not extend to every separate act that may amount to an offence. To determine the meaning of “distinct,” the Court explained that the word signifies “not identical” and emphasizes characteristics that differentiate one offence from another, whereas “separate” merely points to the fact that two things are not the same. Two offences will be distinct only if they are not inter‑related in any manner; if some inter‑relation exists, distinctness is lacking and the necessity for separate charges will depend on the particular circumstances of the case. This interpretation has been adopted in several decisions of the High Courts and this Court. For example, in Chunnoo v. State, Kidwai J. explained that the use of the word “distinct” is of great significance and that the legislature must not have used it redundantly. He observed that “every distinct offence” cannot be treated as having the same meaning as “every offence” and that “distinct” indicates that there should be no connection between the various acts giving rise to criminal liability; where a connection exists, one action is not distinct from another and, although each may constitute an offence, it does not amount to a distinct offence. Similarly, in Bhagat Singh v. The State, Justice Fazl Ali held that the term “offence” in the Code of Criminal Procedure means any act or omission punishable by law, and that a single act of firing a gun, even though it may injure two persons, should be regarded as one offence rather than being split into two artificial offences. The Court noted that several reported cases have adopted this view and have not been incorrectly decided, and it indicated that these authorities would be cited again later in the judgment.

In the case of Sudheendrakumar Ray v. Emperor (I.L.R. 60 Cal. 643), the facts involved a man who, while being pursued by two constables, discharged his firearm at them on several occasions. The court observed that the act of firing, although repeated, was treated as a single offence; this conclusion was reached even though the specific question of multiple offences was not expressly raised or decided in the proceedings. In Empress v. Raghu Rai ((1881) A.W.N. 154), the accused was found guilty of stealing two bullocks in a single act of theft. The judgment held that the offence was only one, reasoning that the entire transaction – the stealing and the actions leading to it – constituted a single act, and therefore a single offence, regardless of the fact that more than one bullock was taken. Similarly, in Poonit Singh v. Madho Bhot ((1886) I.L.R. 13 Cal. 270) the court considered a situation where a person supplied false information to the police concerning two individuals. Although the statement referred to two persons, the court treated the false statement as one piece of misinformation and consequently held that only one offence under section 182 of the Indian Penal Code had been committed.

In John Subarna v. King Emperor ((1905) 10 C.W.N. 520), the accused asked a group of villagers to pay a certain amount per head for signing their parchas. The court determined that the accused committed a single offence of cheating because he addressed the villagers collectively rather than individually. The contention that each villager represented a separate attempt to obtain money was rejected; the court emphasized that the overall act of addressing the whole group and seeking money from them amounted to one offence. In Promotha Natha Ray v. King Emperor ((1912) 17 C.W.N. 479), a charge under section 406 of the Indian Penal Code was framed for dealing with several books of accounts. The books were discovered together in two locked boxes, the keys being in the possession of the appellant, and were considered a single set of account books belonging to the estate. The court held that they could be regarded as one item of property and that the appellant’s dealing with them constituted a single offence, rejecting the view that a separate offence arose for each individual book.

On the basis of these authorities, the court held that framing a single charge for the cheating alleged in the present case does not violate the provisions of section 233 of the Code. This reasoning also resolved the objection concerning charge number 2, which argued that only the partner who actually signed each bill should be charged for the cheating involved in obtaining money on that bill. The court concluded that both partners, having conspired to cheat the Government and having presented the bills on behalf of the firm, could be held liable, and therefore the charge did not suffer any defect on that ground.

The Court noted that the bill had actually been signed by the partner who was alleged to have obtained the money, and that both partners had jointly conspired to cheat the Government. The High Court had observed that the bills were, in all probability, presented on behalf of the Firm, and consequently each partner was liable for the receipt of money upon the presentation of each bill. Accordingly, the charge against them was not defective on that ground. The principal issue raised by the appellant Thomson was that the Special Judge in Poona lacked authority to amend charge number six to allege that Thomson, by misusing his public office, had secured a pecuniary advantage for himself, because the sanction authorising the prosecution did not expressly state that he had abused his position for personal gain. The Court refrained from expressing an opinion on the substance of that contention, observing that the prosecution retained the opportunity to introduce evidence demonstrating that the sanction was based on facts indicating Thomson’s personal receipt of money. The prosecution could also argue that the inference of personal benefit could be drawn from Thomson’s alleged conduct. In any event, the trial of Thomson on the presently framed charge was not deemed illegal. The Court further referred to its earlier decisions in Purushottam Das Dalmia v. State of West Bengal and L.N. Mukherjee v. State of Madras, which hold that a court trying an accused for a conspiracy may try him for all offences committed in furtherance of that conspiracy, even if some of those offences occurred outside its territorial jurisdiction. Accordingly, the Special Judge in Poona was competent to try the appellants for the offence of cheating and the related abetment concerning the supply of wood to locations outside Kerala and for the receipt of the price of that wood. The Court held that charge number two, as framed by the Special Judge, was proper, and that the High Court’s order limiting the charge to the recovery of Rs 1,41,309 for the supply of 521 tons of wood was erroneous. Consequently, the Court dismissed Criminal Appeals Nos 113 and 114 and allowed Appeal No 190 of 1961. As a result, Criminal Appeals Nos 113 and 114 were dismissed, and Criminal Appeal No 190 was allowed.