Banwari Lal Jhunjhunwala and Others vs Union of India and Another

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

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 113, 114 and 190 of 1961

Decision Date: 21 November 1962

Coram: Raghubar Dayal

In this matter the Court recorded that the petition was filed by Banwari Lal Jhunjhunwala and other respondents against the Union of India and another party, and that the judgment was delivered on 21 November 1962 by a bench consisting of Justice Raghubar Dayal and Justice K. Subbarao. The citation of the decision appeared as 1963 AIR 1620 and 1963 SCR Supplement (2) page 338. The operative statutes mentioned were the Criminal Trial Act, specifically the provision that defined “every distinct offence,” the Indian Penal Code sections dealing with conspiracy, and Section 233 of the Code of Criminal Procedure of 1898.

The factual matrix narrated by the Court described a firm that had two partners and that entered into a contract to supply one thousand three hundred six and a half tons of bottom boards made of certain specified varieties of hardwood for railway wagons to the Central Railway Administration. The contract required delivery of the wood at various locations in differing quantities. The firm, however, delivered wood of inferior quality. Officers identified as Thomson and other officials issued false inspection notes that falsely certified that the supplied wood met the contractual specifications. Relying on those falsified inspection notes the firm obtained payment amounting to three lakh seventy‑seven thousand seven hundred seventy‑one rupees.

Consequently the accused were charged under sections 109, 120‑B and 420 of the Indian Penal Code and under section 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act. The case was originally placed before the Special Judge in Kerala, where the charges were framed. The Court then transferred the proceedings to the Special Judge in Poona, who amended certain charges and added a new charge against some of the appellants. The accused filed a revision petition before the High Court of Bombay, challenging the legality and propriety of the various charges. The High Court ordered minor modifications to the charges. Both the accused and the Union of India subsequently obtained special leave to approach this Court.

The primary contention advanced on behalf of the accused was that each separate bill presented for payment constituted a distinct offence, and that, in view of Section 233 of the Code of Criminal Procedure, a separate charge should have been framed for each bill. They argued that the charge as framed combined a number of cheating offences arising from the presentation of eighteen or nineteen bills and therefore violated the provisions of Section 233. Additionally, the accused contended that the charge of cheating should have been framed only against the partner who had actually submitted the bill and received the money.

The Court held that the expression “every distinct offence” in Section 233 of the Code of Criminal Procedure carries a meaning different from the phrases “every offence” or “each offence.” Offences would be regarded as distinct only if they were not in any way inter‑related. The Court approved the earlier decision in Chunne v. The State, AIR 1954 All 795, and further concluded that a single charge for cheating committed in furtherance of a conspiracy did not contravene Section 233. The Court explained that the conspiracy undertaken by the appellants was not intended to obtain many separate sums by cheating, but rather to obtain the entire contract amount through cheating. Accordingly, the cheating contemplated by the conspirators constituted one offence of obtaining, by cheating, the full amount due under the contract. While each individual bill could represent a cheating act, the overall conduct aimed at securing the total contract price formed a single composite offence, and the accused could not be punished for more than that one offence.

A single charge of cheating committed in furtherance of a conspiracy did not violate the provisions of section 233 of the Code of Criminal Procedure. The conspiracy entered into by the accused was not aimed at obtaining a series of separate sums by cheating on individual bills; rather, it was directed at obtaining the entire contract price by cheating. The conspirators contemplated one offence, namely the fraudulently obtaining the full amount due under the contract for the material supplied. While each instance of money obtained by presenting an individual bill constituted the offence of cheating, the totality of the scheme—obtaining the whole contract sum pursuant to the terms of a single contract and a single conspiracy—also constituted the offence of cheating. Because a person cannot be punished for more than one such offence arising from the same conduct, the law does not intend that the accused be charged separately for each act that is subsumed within the complete offence created by the entire course of conduct under the conspiracy. The Court referred to the authority in Bhagat Singh v. State, [1952] 2 S.C.R. 371, and approved the earlier rulings in Empress v. Raghu Rai, (1881) A.W.N. 154; Poonit Singh v. Madho Bhot, (1886) I.L.R. 13 Cal. 270; Joan Subrna v. The King Emperor, (1905) 10 C.W.N. 320; and Promotha Nath Bay v. King Emperor, (1912) 17 C.W.N. 478. Both partners jointly conspired to cheat the Government; the bills were presented on behalf of the firm, making each partner responsible for obtaining the money. Consequently, charging both of them was proper.

A court that tries an accused for an offence of conspiracy is empowered to try that accused for every offence committed in furtherance of the same conspiracy, irrespective of whether the other offences occurred within the territorial jurisdiction of that court. Accordingly, the charge framed by the Special Judge was upheld. The Court followed the decisions in Purushottam Das Dalmia v. State of West Bengal, [1962] 2 S.C.R. 101 and L.N. Mukherjee v. State of Madras, [1962] 2 S.C.R. 116.

The judgment concerned criminal appeals numbered 113, 114, and 190 of 1961, which were brought by special leave from the order dated 16 June 1961 of the Bombay High Court in revision applications 305 and 345 of 1961. Counsel for the appellants appeared on behalf of the parties in appeal No. 113 (criminal appeal No. 113161) and the respondents numbered 1 to 4 in appeal No. 190 of 1961. Counsel for the appellant appeared in appeal No. 114/61 and for respondent No. 5 in appeal No. 190/61. Counsel for the respondents and the appellant appeared in appeals No. 113 and 114161 and in appeal No. 190/61. The judgment was delivered on 21 November 1962 by Justice Raghubar Dayal. These three appeals, taken on special leave, arose from the criminal proceedings before the Special Judge, Poona.

In this matter, a criminal proceeding that was pending before the Special Judge at Poona concerned the appellants named in Criminal Appeals numbered 113 and 114. The first two appellants, Banwari Lal Jhunjhunwala and Champalal Jhunjhunwala, were identified as partners in a commercial enterprise called Shreeram Ramniranjan. The next two appellants, I. R. Oza and Gajraj Tiwari, were described as employees of that same firm. The appellant in Criminal Appeal 114, V. A. Thomson, held the position of Assistant Works Manager responsible for timber inspection in the Central Railways at Matunga, Bombay, at the relevant time. According to the factual record, the firm entered into a contract in 1955 with the Director General of Supplies and Disposals, New Delhi, to furnish a total of 1,306.5 tons of bottom boards made from specified varieties of hard wood for use in railway wagons belonging to the Central Railway Administration. The contract stipulated a total price of Rs 3,99,556‑8‑0. The delivery of the timber was to be made at three separate locations in differing quantities: 630 tons were to be consigned to the District Controller of Stores, C.W.E., Matunga, Bombay; 26½ tons were to be supplied to the Assistant Controller of Stores, Lallaguda; and 650 tons were to be sent to the Assistant Controller of Stores, Jhansi. Before any wood could be delivered, it was required to undergo inspection by the Chief Engineer (Sleeper Passing Branch) of the Southern Railway, Madras, or by an officer acting on his behalf. The designated inspection sites were Kallayi, Mangalore and Vallapatnam, with the first and last sites situated in the State of Kerala. Payment for the supplied timber was to be made by the Pay and Accounts Officer of the Ministry of Works, Housing and Supply, New Delhi. The contract prescribed that immediately after dispatch the contractor could present a bill and claim ninety per cent of the contract price, attaching the first copy of the inspection note to that bill. The remaining ten per cent of the price would be disbursed later, upon submission of two additional copies of the inspection note together with certain other required documents. 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 wood destined for the District Controller of Stores at Matunga. Subsequently, the Chief Mechanical Engineer of Central Railways, Bombay, was appointed as the Inspection Authority, and the Assistant Works Manager (Timber Inspection), C.W.E., Central Railways, Matunga, Bombay, was designated as the Inspecting Officer. At the same time, the locations for inspection were altered to Bombay, Calicut and Baliapatam, and the period of performance of the contract was extended, raising the total contract value to Rs 4,08,741/‑.

The prosecution alleged that the timber actually delivered under the contract was of interior‑grade quality rather than the specified hard‑wood grade. It further claimed that Thomson, together with other concerned officers, fabricated false inspection notes that falsely certified the timber as meeting the contractual specifications. Relying on those allegedly falsified inspection notes, the firm was said to have obtained a payment of Rs 3,77,771/‑ from the Pay and Accounts Officer of the Ministry of Works, Housing and Supply, Government of India. The false certification, according to the prosecution, enabled the appellants to receive the said amount despite the alleged deficiency in the quality of the timber supplied.

In this case, the proceedings initially went before the Special Judge in Kerala, where six separate charges were framed against the accused. The first charge, which named all of the accused, alleged an offence punishable under section 120‑B of the Indian Penal Code. The second charge was directed at the two partners of the firm and concerned an offence under section 420 of the Indian Penal Code. The third and fourth charges targeted the two employee‑appellants and each alleged an offence under section 420 read with section 109 of the Indian Penal Code. A fifth charge, of a similar nature, was framed against Thomson. The sixth charge, also against Thomson, alleged a violation of section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act. The second charge relating to section 420 was based on the allegation that the firm had obtained a sum of Rs 1,41,309 for the supply of 521 tons of timber. Charge six further stated that Thomson, by abusing his position as a public servant, had obtained a pecuniary advantage for the partners of the firm on behalf of the firm.

The Supreme Court later transferred the case from the Kerala Special Judge to the Special Judge in Poona. The Poona judge amended the existing charges and added a seventh charge against the four appellants associated with the firm, accusing them of abetting Thomson in the offence under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act. In the amended charge two, the scope was expanded to cover the supply of the entire quantity of wood, identified as 13,061 tons, and the receipt of Rs 3,77,771. Similarly, the amended charge six clarified that Thomson, by misusing his public office, had obtained an advantage for himself from the firm’s partners.

The accused‑appellants subsequently sought revision in the High Court of Bombay, challenging the legality and propriety of the various charges. The High Court permitted certain minor modifications to the charges but, for reasons of jurisdiction, limited charge two to the original allegation of supplying 521 tons of wood and receiving Rs 1,41,309, as originally framed by the Kerala Special Judge. The court held that the Kerala court lacked authority to try offences connected with the supply of timber to locations outside its territorial jurisdiction. Dissatisfied with this restriction, the Union of India filed Criminal Appeal No. 190 of 1961 contesting the High Court’s order that confined charge two. The principal conspiracy charge, as quoted in the judgment, stated: “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 ….”

According to the prosecution, the accused conspired to supply bottom boards that were made of inferior jungle wood rather than the species of Aine, Kalpine and Haldu that had been specified in the contract and tender. The scheme involved accused No. 5, who was a public servant, abusing his official position by obtaining false inspection notes and certificates that falsely claimed the boards were of the required species. The false documents were prepared by accused No. 5 and by others who colluded with him, and they were issued through corrupt and illegal means. Those documents were then used to obtain a pecuniary advantage for accused No. 5 as well as for accused Nos. 1 and 2. By presenting bills that were supported by the falsified inspection notes, the conspirators induced the Assistant Pay and Accounts Officer of the Ministry of Works, Housing and Supply to release a sum of Rs 3,77,771 as payment for the alleged supply. The conduct was alleged to constitute offences punishable under sections 420 and 109 of the Indian Penal Code, under section 5(2) of the Prevention of Corruption Act, 1947, and thereby to amount to an offence under section 120‑B of the Indian Penal Code.

The appellants, in appeal No. 113 of 1961, argued that each separate bill presented for payment represented a distinct offence and that, under section 233 of the Code of Criminal Procedure, a separate charge should have been framed for each instance of cheating. They further contended that the charge as framed combined numerous cheating offences arising from the presentation of eighteen or nineteen bills, which they claimed violated the provisions of section 233. The appellants also submitted that the charge for cheating should have been directed only at the specific accused who submitted each bill and obtained the money. The High Court examined these contentions and concluded that a detailed schedule enumerating each item of cheating satisfied the legal requirement. It observed that the bills were presumably signed by the firm in the same manner as the forwarding letters, and therefore both partners of the firm could be properly charged with cheating. The Court held that the cheating was carried out as part of the larger conspiracy among the accused. The principal features of that conspiracy were the supply of inferior wood in breach of a contract for 1,360½ tons of specified timber, the obtaining of false inspection certificates from the Inspecting Officers, and the attachment of those falsified notes to the bills presented for payment. The overarching objective of the conspiracy was to obtain the full contract price from the Government by delivering wood of inferior quality in place of the material stipulated in the contract.

In this case, the Court observed that the contract required the supply of wood to be performed at three different locations, so the whole quantity could not be delivered at a single time or at a single place. The wood that was inspected at one inspection point could subsequently be divided and sent to the various places of supply. Consequently, a bill could correspond either to a delivery made by the firm to one location alone or to deliveries made to more than one location at a particular moment. From these facts, the Court concluded that the accused had not devised a scheme to obtain several smaller amounts by cheating; rather, they intended to obtain the entire contract price through cheating. This factual circumstance supported the view that the cheating contemplated by the conspirators amounted to a single offence, namely the dishonest acquisition of the full sum due under the contract for the supplied material. The Court held that the charge under section 420 of the Indian Penal Code did not conflict with section 233 of the Code of Criminal Procedure, because the charge related to one distinct offence. The Court also considered an alternative perspective. It noted that each individual bill, when supported by a falsified inspection note, represented an act of cheating carried out in furtherance of the conspiracy. However, all those individual acts were of the same nature as the single offence of obtaining the total contract price by presenting the multiple falsified bills. In view of section 71 of the Indian Penal Code, a person cannot be punished more than once for an offence that is composed of several parts, each of which would itself be an offence, unless a statute expressly provides otherwise. The Court illustrated this principle with the example that a person who strikes another fifty times with a stick commits one offence of voluntarily causing hurt by the whole beating, as well as fifty separate offences for each blow. If the law punished each blow separately, the offender could face fifty years of imprisonment, which the provision prevents by allowing only one punishment for the entire beating. The Court noted that while each blow is itself an offence, the complete beating is regarded as one offence. Applying this reasoning, the Court stated that although the dishonest receipt of money for each individual bill constituted cheating, the dishonest receipt of the total contract price in accordance with the single contract and the single conspiracy also constituted cheating. Because the law does not permit multiple punishments for the same conduct, it would be contrary to legislative intent to charge the accused separately for every individual bill that forms part of the overall scheme. The appropriate charge is therefore the single offence that encompasses the whole course of conduct pursued by the conspirators.

Section 233 of the Criminal Procedure Code 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.” The expression “every distinct offence” must be understood as having a different meaning from the expressions “every offence” or “each offence.” A separate charge is required for each distinct offence, but this does not necessarily mean a separate charge for every single offence that may arise from the facts. The key issue, therefore, is what the statute means by “every distinct offence.” The word “distinct” signifies “not identical,” and it emphasizes the characteristics that differentiate one offence from another, whereas “separate” merely stresses that two things are not the same. Two offences will be distinct only if they are not in any way inter‑related. If there is some interrelation between the acts, then distinctness is lacking, and whether separate charges are required will depend on the particular circumstances in which the offences were committed. This approach has been adopted in several decisions of the High Courts and this Court. In Chunnoo v. State, Justice Kidwai observed that the use of the word “distinct” is of great significance; the legislature, having inserted it, must be given a meaning and not treated as redundant. He warned that “every distinct offence” cannot be equated with “every offence.” The only meaning the word “distinct” can have in the statutory context is to indicate that there should be no connection between the various acts that give rise to criminal liability. If such a connection exists, one act is not “distinct” from another, and even if each act constitutes an offence, it does not constitute a “distinct” offence. In Bhagat Singh v. The State, Justice Fazl Ali explained that the term “offence” under the Criminal Procedure Code means “any act or omission made punishable by any law for the time being in force.” He held that a single act of firing a gun at two persons should be regarded as one offence, and it would be an extremely narrow and artificial view to split it into two offences. He referred to several reported cases that follow this reasoning and noted that they have not been incorrectly decided. At the same time, Justice Fazl Ali quoted the decision in Sudheendrakumar Ray v. Emperor, noting that when a person, pursued by two constables, fired several times at them, the court rightly assumed that the firing did not constitute more than one offence, even though the point was not specifically raised for decision. Thus, the jurisprudence consistently interprets “distinct offence” to require the absence of any substantive link between the acts, and where such a link exists, the conduct is treated as a single offence for purposes of charging and trial.

In the case Empress v. Raghu Rai (1) the accused was found guilty of stealing two bullocks through a single act of theft. The court held that only one offence had been committed. The reasoning was that the whole transaction of taking the bullocks, or the entire conduct leading to their theft, amounted to a single act; therefore it constituted a single offence even though more than one bullock was taken. In Poonit Singh v. Madho Bhot (2) a person who supplied the police with false information concerning two individuals was held to have committed one offence under section 182 of the Indian Penal Code. The court reasoned that although the false statement related to two persons, the statement itself was a single falsehood and thus gave rise to only one offence. In John Subarna v. King Emperor (3) a person who invited villagers to pay a specified amount per head for signing their parchas was held to have committed a single offence of cheating. The court observed that the accused addressed the villagers collectively rather than interrogating each villager individually, and therefore the attempt to obtain money from the entire group constituted one offence despite the argument that each villager represented a separate attempt. The court clarified that the accused’s act was directed at obtaining money from all the villagers he addressed, and that act in its entirety was regarded as one offence even though it could be described as asking each individual villager for money. In Promotha Natha Ray v. King Emperor a charge under section 406 of the Indian Penal Code was framed in respect of dealing with several books of accounts. The court held that the books constituted a single set of account books of the estate, were discovered together in two locked boxes, and that the keys were in the possession of the appellant; consequently the books could be treated as one item of property with which the appellant dealt in a uniform manner. The court rejected the view that a separate offence arose for each individual book. Accordingly, the court held that a single charge for cheating in the present facts does not violate the provisions of section 233 of the Code. This reasoning also resolves the objection raised with respect to charge number two, which contended that only the partner who actually signed each bill should be charged for the cheating involved in obtaining money on that bill. The court noted that both partners conspired to cheat the Government, that the bills were, as the High Court held, presumably presented on behalf of the Firm, and therefore both partners are liable for obtaining money upon presentation of each bill.

The Court observed that the charge against the accused did not suffer from any defect on the basis previously argued. The principal matter raised in the appeal filed by Thomson concerned the jurisdiction of the Special Judge at Poona to amend charge number six so as to allege that Thomson, by abusing his position as a public servant, had obtained pecuniary advantage for himself. Thomson argued that the sanction for his prosecution did not specifically state that he had misused his public office for personal gain, and therefore the amendment was beyond the judge’s competence. The Court expressly refrained from pronouncing on the merits of that contention, noting that the prosecution retained the opportunity to introduce evidence showing that the sanction was founded on facts indicating that Thomson had obtained money for himself. Moreover, the prosecution could also contend that a reasonable inference could be drawn from Thomson’s alleged conduct that he derived personal benefit. On that basis, the Court held that the trial of Thomson on the presently framed charge was not illegal. The Court then relied upon its earlier decisions in Purushottam Das Dalmia v. The State of West Bengal (1) and L. N. Mukherjee v. The State of Madras (2), which respectively affirmed that a court trying an accused for a conspiracy offence possessed the authority to try the accused for every offence committed in furtherance of that conspiracy, irrespective of whether any of those offences occurred within the court’s territorial jurisdiction. Accordingly, the Special Judge at Poona was competent to try the appellants for the offence of cheating and the abetment thereof in connection with the supply of wood to locations outside Kerala and for the receipt of the price of that wood. The Court further concluded that charge number two, as framed by the Special Judge, was correctly stated, and that the order of the High Court which limited the charge to the recovery of Rs 1,41,309 only 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, ordering the dismissal of Criminal Appeals 113 and 114 and granting the relief sought in Criminal Appeal 190. (1) [1962] 2 S.C.R. 101. (2) [1962] 2 S.C.R. 116.