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a) to (d) of s. 239 was not raised expressly in the argument before the Court ARG |
But the ultimate decision of the case would negative such argument ARG |
Mr. Bhimasankaram then relying upon the decision in R. v. Dawson ( [1960] 2 W.L.R. 435, contended that in any event it was not desirable to try the respondents at the same trial for as many as 83 offences and pointed out that these observations had received the approval of this Court in The State of Andhra Pradesh v. K... |
In the first place there the trial had not actually begun ARG |
Again, what was said by this Court was that it is undesirable to complicate a trial by introducing a large number of charges spread over a long period but even so this was a question of propriety which should be left to the discretion of the judge or Magistrate trying the case ARG |
Objection was taken very seriously by Mr. Bhimasankaram to the charge of conspiracy framed in this case ARG |
That charge reads thus :" "Adverting to the portion which we have bracketed, his first objection was that the charge comprises within it not merely the conspiracy but also what was in fact done in pursuance of the conspiracy ARG |
His next objection was that it brought within its purview all the various offences which were alleged to have been committed by the respondents ARG |
The third objection was that no charge of conspiracy could have been framed after the conspiracy had borne its fruits ARG |
The last objection was that the charge of conspiracy was added to the charge sheet very late ARG |
We shall first deal with the third point ARG |
The offence of conspiracy is an entirely independent offence and though other offences are committed in pursuance of the conspiracy the liability of the conspirators for the conspiracy itself cannot disappear ARG |
In the Indian Penal Code, as originally enacted, conspiracy was not an offence ARG |
S. 120 -B which makes criminal conspiracy punishable was added by the Indian Criminal Law Amendment Act, 1913 (8 of 1913) along with s. 120-A. Section 120-A defines conspiracy and s. 120- B provides for the punishment for the offence of conspiracy ARG |
Criminal conspiracy as defined in s. 120-A and consists of an agreement to do an illegal act or an agreement to do an act which is not illegal by illegal means Ratio |
S. 120 B provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards shall be punishable in the same manner as if he has abetted such offence unless there was an express provision in the Code for ... |
Criminal conspiracy was, however, not an unknown thing before the amendment of the Indian Penal Code in 1913 Ratio |
But what the amendment did was to make that conspiracy itself punishable Ratio |
The idea was to prevent the commission of crimes by, so to , speak, nipping them in the bud Ratio |
But it does not follow that where crimes have been committed the liability to punishment already incurred under s. 120-B by having entered into a criminal conspiracy is thereby wiped away Ratio |
No doubt, as already stated, where offences for committing which a conspiracy was entered into have actually been committed it may not, in the particular circumstances of a case, be desirable to charge the offender both with the conspiracy and the offences committed in pursuance of that conspiracy Ratio |
But that would be a matter ultimately within the discretion of the court before which the trial takes place Ratio |
In so far as the fourth point is concerned, that would have a bearing not on the form of the charge but on the credibility of the evidence bearing on the point of conspiracy Ratio |
As we are remanding the appeal to the High Court for a fresh decision after full consideration of the evidence adduced in the case it would be open to it to consider this matter particularly while judging the credibility of the-evidence of the approver Ratio |
In so far as the portion included in the bracket is concerned we agree with the learned counsel that it should not have found place there Ratio |
The ideas, however, of the committing magistrate in stating all that is said there appears to have been merely to describe the conspiracy and do nothing more Ratio |
We do not think that either that or the other objection raised, that is, that the charge embraces within it all the offences said to have been committed by the respondents can properly Ratio |
be said to vitiate the charge Ratio |
The object in saying what has been set out in the first charge was only to give notice to the respondents as to the ambit of the conspiracy to which they will have to answer and nothing more Ratio |
Even assuming for a moment that this charge is cumbersome in the absence of any objection by the respondents at the proper time and in the absence of any material from which we could infer prejudice, they are precluded by the provisions of s. 225 from complaining about it at any rate after their conviction by the trial... |
Coming to the next point of Mr Ratio |
Bhimsankaram regarding the abuse of powers under s. 342 his first contention was that long and involved questions were put to the respondents Ratio |
His second contention was that reference was made to a number of documents in some of these questions and those documents were not made available to the respondents for answering those questions ARG |
The third contention was that the questions were involved, confusing and bordered on cross-examination ARG |
Finally he said that the court did not perform its duty under s. 342 (4) of the Code as amended as it failed to bring to the notice of the respondents that they may, if they chose, give evidence in their defence ARG |
In support of his first contention he referred to questions Nos ARG |
4, 8, 9, 10 and 20 put to the respondent No ARG |
I and question No. 12 put to the respondent No. 2 and tried to show that those questions rolled up a large number of separate questions and that it could not have been possible for the respondents to give any rational answers to those questions ARG |
We have read the questions and so also the answers ARG |
While we are disposed to agree with learned counsel that the questions embrace a number of matters and that it would have been better if those matters had been made the subjects of separate questions, the answers given by the respondents clearly show that they understood the questions and wherever possible they have gi... |
That is to say, they have given their explantion regarding the circumstances appearing in the evidence set out in the questions and wherever that was not feasible they have said that they would do so in their written statements ARG |
In fact written statements have been filed by each of them in which every point left over has been fully answered Ratio |
We are informed that the questions had been prepared before hand by the learned Additional Sessions judge, copies thereof were made available to each of the respondents and it was with reference to those copies that they gave their answers in the court Ratio |
A pointed reference was made to question Ratio |
No. 20 put to respondent Ratio |
No Ratio |
I which contains as many as 22 sub-heads and it is said that it was an extremely unfair and embarrassing question Ratio |
What the learned Additional Sessions judge has done is to err on the side of over-cautiousness by putting every circumstance appearing in the evidence to the respondents for eliciting their explanations Ratio |
His object was to obviate the possibility of a complaint before the appellate court that they were denied the opportunity of explaining the circumstances appearing in evidence against them because of defective questions Ratio |
Nor again, do we think that there is any substance in the complaint made that the respondents had no opportunity of referring to the documents to which reference has been made in certain questions Ratio |
No objection was taken on their behalf before the learned Additional Sessions judge and from the manner in which they have answered the questions there is no doubt that they must have had opportunity to look at the relevant documents and answer the questions Ratio |
We are also satisfied that there is no substance in the complaint that the questioning bordered on cross-examination Ratio |
Undoubtedly the learned Additional Sessions judge has questioned the respondents very fully and elaborately but to say that this bordered on cross- examination is wholly unjustifiable Ratio |
The object of the learned Additional Sessions Judge quite clearly was, as already stated, to leave no loophole for a complaint to be made before the appellate court of incomplete or insufficient examination under s. 342.Finally we are clear that it was not the duty of the court to draw the pointed attention of the resp... |
4) of s. 342 and tell them that they may, if they chose, enter the witness box Ratio |
It is true that by introducing this provision the disability placed on an accused person in respect of giving evidence on oath in his own defence has been removed and to that extent such person is placed on par with an accused person under the English law Ratio |
The new provision, however, does no more than lift the ban and does not impose a duty on the court to draw the attention of an accused person to its contents Ratio |
Apart from that, the respondents were represented by counsel at the trial who knew very well what the law was Ratio |
No complaint was made by the respondents even in appeal that they were ignorant of their right, that had they known about it they would have given evidence on oath in their defence and that because of this they have been prejudiced Ratio |
In the circumstances this point must also be rejected as being without substance Ratio |
The irrelevant evidence to which Mr. Bhimasankaram referred was certain account books Ratio |
The entries in the. account books of VESCO show that certain sums of money were paid to various parties, Crompton Engineering Co., Lumin Electric Co., D. Brothers, Radio and Electrical, Madras, Vizagapatam Municipality, P. V. Ramanayya Bros., and Andhra Power System Ratio |
They also show payment case was that the payments which were entered in the account of VESCO do not find a place in the account books of the corresponding firms or authorities because they were never made by VESCO Ratio |
The High Court has pointed out that the main evidence on which the prosecution rests its case that the amount represented by the entries against these various firms were in Ratio |
fact misappropriated by the, respondents in the circumstance that there are no corresponding entries in the account books of those firms Ratio |
The argument before the High Court was and before us is that, the absence of an entry cannot of electricity duty to Government Ratio |
The prosecution be established by reference to s. 34 of the Indian Evidence Act which reads thus Ratio |
What it does is to make entries in books of account regularly kept in the course of business relevant in all proceedings in a court of law Ratio |
These entries are, however, not by themselves sufficient to charge any person with liability Ratio |
Therefore, when A sues B for a sum of money it is open to him to put his account books' in evidence provided they are regularly kept in the course of business and show by reference to them that the amount claimed by him is debited against B Ratio |
The entry though made by A in his own account books, and though it is in his own favour is a piece of evidence which the court may take into consideration for the purpose of determining whether the amount referred to therein was in fact paid by A to B Ratio |
The entry by itself is of no help to A in his claim against B but it can be considered by the court along with the evidence of A for drawing the conclusion that the amount was paid by A to B Ratio |
To this limited extent entries -in the account books are relevant and can be proved Ratio |
S. 34 does not go beyond that Ratio |
It says nothing about non-existence of entries in account books Ratio |
We, therefore, agree with the High Court that the account books of the various concerns to whom payments are said to have been made by the respondents are not by themselves evidence of the fact that no payments were received by them Ratio |
The decision in Queen Empress v. Grees Chunder Banerjee ((1884) I. L. R. 10 Ratio |
Cal 1024.), upon which reliance is placed by the High Court in support of its view is also to that effect Ratio |
Similarly in Ram prashad Singh v. Lakhpati Koer ((1902) I. L. R. 30 Ratio |
Cal 231, 247 Ratio |
Lord Robertson during the course of the hearing has observed that no inference can be drawn from the absence of any entry relating to any particular matter which observation supports the view taken in Queen Empress v. Girish Chander Banerjee ( (1884) I.L.R. 10 C.L 1024 Ratio |
That , however, is not the Only provision to be Considered Ratio |
There is s. II of the Evidence Act which provides that facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact Ratio |
Some of the facts in issue in this case are whether payments of certain sums of money were made to Crompton Engineering Co., and other firms or authorities Ratio |
These are relevant facts Ratio |
Absence of entries in their account books would be inconsistent with the receipt of the accounts and would thus be a relevant fact which can be proved under s. 11 Ratio |
The fact that no payments were received by those firms has been deposed to by persons connected with those firms and whose duty it was to receive and acknowledge amounts received by the firms or who were in charge of the accounts of these firms Ratio |
For the purpose of showing that no amounts were received by the firms, their account books would thus be as relevant as the VESCO account books for the purpose of showing the contrary Ratio |
Similarly there is s. 5 of the Evidence Act which reads thus:" "It is the case of the prosecution that the alleged payments were never made by VESCO to the various firms STA |
It is also their case that these firms maintain their accounts in the regular course of business and it is their practice to enter in those accounts all payments received by them STA |
Both the sets of facts are relevant, that is, non-receipt of the amounts by the firms and non-existence of entries in their account books pertaining to those amounts STA |
It is permissible, therefore, for the prosecution to lead evidence to , Drove both these facts STA |
The best evidence to prove the latter set of facts consists of the account books of the firms themselves STA |
It is under these provisions that the account books of the firms must be held to be relevant STA |
What value to attach to them is another matter and would be for the Court of fact to consider STA |
It may further - be mentioned that the account books of VESCO show certain payments made to Billimoria & Co. of Kharagpur STA |
Papers seized by the police include receipts purporting to have been signed by one J. J. Billimoria on behalf of the firm STA |
The prosecution case is that these receipts are forged documents and the entries in the account books of VESCO are false STA |
One of the partners of the firm was examined by the prosecution as a witness in the case and he produced the account books of the firm STA |
Those account books are in Gujrati and he stated in his evidence that the accounts were regularly kept and that there were no entries in them corresponding to the entries in the VESCO accounts STA |
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