Naran Karsan vs Bai Shanta and Another

Chhatpar, J.—This revision application is from an order of the Sessions Judge, Central Saurashtra, dismissing the appeal of the applicant from an order of his conviction by the First Class Magistrate at Rajkot, convicting him for on offence u/s 423, Indian Penal Code and sentencing him to one years rigorous imprisonment and a fine of Rs. 300/-. The applicant-accused was the agent at Rajkot of one Jamnadas Solanki residing in Africa who had given him a power of attorney for managing his three properties at Rajkot.

In view of the value of the properties having considerably risen, the applicant wrote a letter dated 2-5-1948to Jamnadas stating that there was of Rs. 16/- per square yard for one of the1 ties, an open plot. A reply was received sing him to sell it if Rs. 18/- per square rd were offered. On 14-7-1948 the applicant tempted to Jamnadas that he had entered into section of sale at Rs. 18/4/- per square yard and sliced him to send a power of attorney tuconveit. On 26-7-1948, Jamnadas wrote a letter scenting the power of attorney and instructed the amount-, of consideration to be deposited in a Bank.

He also wrote that he inferred that the purchaser must be moneyed person or a merchant. There are two other letters which may be referred to one dated 12-7-1948 and the .other 15-7-19411 from the applicant to Jamnadas wherein be stated that the transaction had been made puce and that Rs. 500/- were taken from the Buyer as finest money. On 21-8-1948, tire applicant intimated to Jamnadas that the consideration when received would be put in a Bank. The property was in fact conveyed by the applicant to his wife by name Manek by a deed dated 27-10-1948 for a consideration as stated therein, of Rs. 10,544/-, In the conveyance deed it was recited that Re. 1500/- were already received as earnest money.

Thereafter it seems Jamnadas became sick and his brain was affected. His wife Bai Shanta who is the complainant, got herself appointed as hi, manager. The consideration money was never Pu in Bank and it Is in evidence that some structure was constructed by the applicant or by him in the name of his wife after the conveyance, and in August 1951, the property was mortgaged for Rs.

15,000/- with one Mulji Chatrabhuj who filed a suit and obtained a decree in 1952, This mortgage deed is executed by the applicant and his wife and recites that the property was in fact purchased by the applicant became in the name of his wife. When Jamnadass wife Bal Hanta came to Rajkot in 1952, she came to know of these transactions and she published notices and objected to the sale of the property by the mortgagee. She also filed three complaints. The complaint out of which the present revision application arises, was in Case No. 39 of 1953 being Wed on 12-1-1953 and was for offences under Ss. 40i, 406, 409, 420 and 423, Indian Penal Code.

The other two complaints were filed in Cases Nos. 40 and 41 of 1953 and these related to misappropriation of rents of the other two properties which the accused was managing on behalf of Jamnadas. All these three cases were going on but it coins that the present case was being adirmivied often times for the reason that the other pending. The applicant was acquitted in Case No. 40 of 1953 by an order dated 31-3-54 and acquitted in Case No. 41 of 1953 by an order dated 30-4-1954.

In the present case his wife was also joined as a co-accused but she was discharged. The charge framed against the applicant was for offence u/s 406 and in the alternative, for offence u/s 423, I. P. C. He was however convicted of the latter offence and sentenced as above stated. His appeal to the Sessions Judge was dismissed. Now has come to this Court in revision.

Mr. G. B. Joshi, the learned advocate for the applicant, has contended that the trial of the applicant and consequently his conviction were bad wing to several illegalities and irregularities committed during the course of the trial. His first contention is that his wife, the co-accused, was never examined u/s 342, Code of Criminal Procedure the statement of the applicant was recorded on 22-3-1954 before the charge was framed. The charge was framed on the same date. Thereafter the case was fixed for further cross-examination of the proficutlon witnesses and ultimately on 11-6-1954 for further statement of the applicant.

But on 28-4-1954 an application was presented signed by the applicant and the advocate for the complainant in which they stated that the applicant had no defence to offer and requested that arguments In this case may be heard on that, day Which date was also fixed for arguments, in Case 1 No, 41 of 1083. 1

Accordingly on 23-4-1954 the further statement of the applicant was recorded. Arguments were heard on that date and on the next day, i.e., 29-4-1 also and the case was fixed for 1-5-1954 for Imminent. Right upto thin date, the staloinrnt of the applicants wife who was the co-accused was not recorded and no order of her discharge was also passed; no charge was framed against the applicants wife when the charge was framed against the applicant on 22-3-1954. On 1-5-1954, an application was made on behalf of the complainant stating that there was no case against the applicants wife and that an order of discharge may be passed in her favour. The learned Magistrate while convicting the applicant on 4-5-54 of the offence u/s 423, I. P. C, at the same date, pronounced an order of discharge in favour of his wife.

Mr. Joshi the learned advocate for the applicant, contends that this procedure was illegal.

The applicant was entitled to take advantage of this statement of his wife, the co-accused, and such statement was never recorded; but I do not see how the want of the statement of "his wife could prejudice the case of the applicant as their defence was the same. The Sessions Judge observes that the framing of the charge on 22-3-1954 against the applicant only would impliedly mean that the co-accused was discharged. The reasons of the discharge were subsequently given when the case-was entirely disposed of.

The Sessions Judge referred to a decision of the Madras High-Court in re Gevindraj AIR 1935 Mad 393 ( v. 25) (A), wherein it was held that when there are several accused in a case it is open to the Magistrate to record reasons for discharge of some of the accused at the time when final judgment is passed against the remaining accused. At the most, in my opinion this is a mere irregularity which would not vitiate the trial of the applicant as no prejudice has been caused to him. I therefore overrule this contention of Mr. Joshi.

The next argument advanced by Mr. Joshi; is based upon the provisions of Section 256, Code of Criminal Procedure, which requires that after a charge has been framed u/s 255, the accused should be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any; and if so, which of the witnesses for the prosecution whose evidence has been taken.

In the present case, the Court immediately after framing the charge asked the applicant whether he wanted to cross-examine any of the witnesses of the prosecution whose evidence has been taken, and did not give any reasons for doing so.

Mr. Joshi has contended that non-compliance of provisions of Section 256 amounted to an illegality which vitiated the entire trial and the applicant was entitled to an acquittal. He has relied upon some rulings of the High Courts; the question has been discussed at length in Chitaley & Raos Commentary on Code of Criminal Procedure u/s 256 as also u/s 537. In their note 4 on Section 256 the learned Commentators, state that the amendment in the Code of Criminal Procedure of 189b WPS made to make it obligatory on the part of She Magistrate to question the accused whether he wanted to cross-examine-any of the prosecution witnesses. But in Note 29 on Section 537 the learned Commentators discuss the-law on the question whether failure to comply with the provisions of Section 256 could be cured by this Section. They state that an omission to ask the accused whether he wishes to cross-examine the prosecution witnesses is an irregularity which is curable if there is no prejudice. And a number of decisions of the High Courts have been cited.

The learned Commentators also note the contrary view in some other cases wherein it has been hold that Section 150 Is a mandatory provision and consequently a breach of it would vitiate the whole trial irrespective of the question of prejudice. They however express their opinion that this latter view is not correct.

Their Lordships of the Privy Council in Subrahmania Ayyar v. King-Emperor, 25 Mad 61 (B) wherein the accused person was tried on an indictment in which he was charged with not less than 41 Acts extending over a period of two years, held that the trial was void being in contravention of Section 233, Code of Criminal Procedure and that Section 537 did not apply-to the case. Their Lordships observed:

Their Lordships are unable to regard the disobedience to an express provision as to a mode of arial as a mere irregularity. Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for different offences at the same time and those offences being spread over a longer period than by law could have been joined toe ether in one indictment. The illustration of the section itself sufficiently snows what was meant.

The remedying of mere irregularities is familiar in most systems "of jurisprudence but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here; shall not be permitted that this contravention of the Code comes within the description of error, omission or .regularity.

In the end their Lordships were of the view that an irregularities; were not illegalities but that the trial in that case was prohibited and was therefore bad. Subramanian decision (B) has been referred number of cases whenever there has been defect in the mode of the trial. The decisions are not uniform. But in Babuhil Chaukhani v. preparer C 130 (C) their Lordships of the irony Council observed:

It has been taken as settled law on all sides throughout these proceedings that the infringement of fcl. 2 (d) would, If made out constitute an illegality, distinguished from an irregularity, (c) that the conviction would require to be quashed under ;he rule stated in 28 Ind App 257 (PC) (B), as contrasted with the result of an irregularity as to which AIR 1927 44 (Privy Council) is an. authority. Their Lordships will assume that this is so, without thinking it .aero necessary to discuss the precise scope of what was decided in 23 Ind App 257 (PC (B), because in their understanding of Section 239 (d) that question does not arise.

Fallowing this case, a distinction has been drawn by the High Courts between an irregularity and an illegality. In Pulukuri Kottaya v. Emperor, AIR 1947 67 ( v. 34) (E), their Lordships held that the view that the distinction drawn in many of the cases in India between an illegality and an iregularity was one of the degree rather than of Kaul, and when there is an error in procedure with arises out of mere inadvertence and there is no prejudice, such error could not vitiate the rail. At pp. 69-70 of the report, it was observed:

Even on this basis, Mr. Prifct for the accused as argued that, a breach of a direct and important provision of the Code of Criminal Procedure cannot be cured, but must lead to the quashing of conviction. The Crown, on the other hand, contend.: that the failure to produce the note book in question amounted merely to an irregularity in he proceedings which can be cured under the provisions of Section 537, Code of Criminal Procedure, if the Court is tuned that such irregularity has not in fact justice.

There are, no doubt, authorises, in India Which and some support to Mr. Pritts contention, and reference may be made to Tirkha v. Nanak AIR 1927 Ul 350 l v. 14) (F) in which the Court expressed the view that Section 537, Code of Criminal Procedure, applied only to errors of procedure arising out of mere in-yrtence. and not to cases of disregard of, or tendency to mandatory provisions of the Code that to Madura Muthu Vannian v. Emperor AIR 1922 lad 512 ( v. 9) (G) in which the view was expressed that any failure to examine the accused madder Section 342, Code of Criminal Procedure was fatd to the validity of the trial and, could not be cured u/s 37

In their Lordships opinion this argument based on too narrow a view of the operation of S. 537. When a trial is, conducted in a manner rent from that prescribed by the Code as in 2lf App 257 (PC) (B), the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such induct, the irregularity can be cured nude:: S. 537, and none the less so because the irregularity involves, as much nearly always be the case, u breach of one or more of the very comprehensive provisions of the Code.

The distinction drawn in many of the cases in India between an illegality and an irregularity), one of derrick rather than of kind. This view hurl, support in the decision of their Lordships Hoard in 1927 PC 44 (AIR v. 14) (C), where failure t; comply with Section 535, Code of Criminal Procedure, was held to be cured by 535 and 537. The present case lulls under 3,537, and their Lordships hold the trial valid notwithstanding the breach of S. 102." In view of this clarification, I hold that non-com-plifuioe of the provisions of S, 21)6 could be cuieill by Sections 57 and 11 there was no prejudice to the accused.

In the present ease, time was not granted to the accused to make up his mind whether he would cross-examine the prosecution witnesses and for that purpose have the hearing adjourned. The Conjoins also not given reason lint the applicant did exercise his option in favour of cross examining the, prosecution witnesses and he did avail himself of this right. So it cannot be said that there was any J prejudice because he made up his mind to exercise his right and did exercise it.

So I overrule this contention of Mr. Josh I that the trial is vitiated by reason ut non- eprovisions of S. 256, Criminal P. C. The prosecution witnesses were cross-examined aftir the framing of the charge and the matter was ultimately put oil to 11-6-1954. But before this date, the accused himself filed an application jointly with the complainant that the case be proceeded with en 28th April and that he had no defence to make.

It was in pursuance of this joint application that the accused was examined on 28th April where after the matter was argued on the very same day and further argued on the, next day and then ad7 journed for delivering judgment

Mr. Joshi has next; strongly contested that this joint application was forced upon the applicant and he was hustled into ending the trial in spite of the case having been adjourned to 11-0-1954, He lias made a grievance that this application was drafted by the complainants advocate and signature of the accused was taken as he happened to be present on that day in the Court in connection with Case No. 41 of 1953 .

But on the scrutiny of the diary of the case It is clear that this grievance of Mr. Joshi, the .learned advocate for the applicant, is groundless. I Vz H, C. Shah, the seamed advocate for the complainant ointment from the bar and I have w reason to doubt it and Mr. Joshi also accepts it although this application was drafted by his partner, it was faired up by the Court clerk and that not only the applicant-accused was present but that his advocate Mr. Chaka was also present in Court and they were both anxious that the case should be finished before the Magistrate left charge owing to his transfer.

The matter was actually argued on that day and the diary of the case shows that it was so argued. The application was not drafted behind the bask of the applicants advocate. The advocate was present in Court although he had not signed the application. It is clear therefore that the contention.

Mr. Joshi, is groundless the more fact that of the case was ante-dated does not show II at the applicant was prejudiced. It was a act on his part to have forgone his defence and have requested the Court that his case be argued on that very same day, i.e. 28-4-1954.

The next point urged by Mr. Joshi Is that applicant was under the impression that all the cements produced in the other two cases referred above would also be considered as evidence in the treason case; but there is no justification for time notion. As a matter of fact, a number of docents have been exhibited in this case and the complainant Bai Shanta, wife of Jarnnadas, was attained in connection with all the document son the accused wanted to produce in defence. Some of the documents were admitted by her while the copies of certain letters alleged to have been .bitten by the applicant to her husband, were not Emitted. Those copies obviously cannot come in evidence without proof.

Mr. Joshi has strongly urged that the applicant, in the interest of justice, should be given a fresh opportunity to adduce defence evidence to privet those documents .which have not been ad matted by the complainant, wherein the applicant sacs he had informed Jarnnadas that the transaction of sale in question was made in favour of his wife, and that he was prepared to render accounts of his agency, not only in respect of this present transition, but in respect of some other matters also.

But I am not prepared to grant any further opportunity. The case has lingered on for a long time and the applicant had ample opportunity to lead any evidence that he required. Nor do I think that I hold exercise my powers u/s 428, Code of Criminal Procedure and permit additional evidence to be recorded. Commenting upon this aspect of the case, the learned Sessions Judge of the lower appellate Court says:

The learned advocate referred to the epsilon of Shantahai Ex. 1, paras 31, 32 and 41. In the paras she has denied that letters dated 20-1-W. 1-8-48 and 16-6-49 were received by her. Copies of these letters from the duplicate book were shown to Santana at that time, and these copies were marked by the learned Magistrate. The leant advocate for the Appellant urged that if these loiters had been produced in the case, the learned Magistrate would not have held that the plot of tad belonging to Jarnna das was sold by the appestat without mentioning the name of the vendee to He further udder that from these -letters it would be clear that the Appellant had rendered no-no of the money received by him to Jarnnadas. Mauricio not think, the Appellant had no adequate urinary to produce letter in the lower Milt Khantabai war examined on 24-2-I14, and on Two letters dated 20-1-49 and l-fi-48 were shown to Rbantabnin 24-2-54 and the third letter dutiful 1(10-40 howdy to her at the time of her 28 was recorded on 22-1-E4.

Still, with his statements, he did not produce the copies of these Jotters, and did not even sdjegn that he had mentioned to Jarnnadas that the Plot of land was sole to his wife. Ho also did not mention that the document was rendered by him to armadas. Sliantabar was further cross-examined of31-3.-I34, and thereafter Appellants further state-in the record on 28-4-54. Even then the Appellant produce the copies of those Idlers. He also did not prod ace any witnesses in support of his allegation, it cannot, therefore, be said that the Appellant did riot adequate opportunity to produce copies of these fetters in the lower Court.

On the contrary, the Appellant and the advocate for the complainant Shantabai both signed the application, Ex. 28 and presented it to the learned Magistrate to hear the arguments on that day, and to record his further statement, Only on this application, the learned Magistrate agreed to record the further statement of the Appellant, and to hear the arguments. The Appellant cannot, therefore urge that adequate opportunity was not given by the lower Court to make his defence. I cannot therefore, allow the Appellant to produce any additional evidence. I also cannot accede to the request of the Appellant to order re-trial.

I fully agree with the analysis and conclusion of1 the learned Sessions Judge and hold that this is not a lit case where any opportunity should be given to the accused to adduce further evidence.

On the merits of the case, so far as the conviction is concerned, both the lower Courts have come to the conclusion that the statement in the sale deed that consideration was received was false. In fact, as admitted in the mortgage document, the sale was benami in the name of the Appellants wife, the real purchaser being the applicant himself. I have already referred to the letters exchanged in July and August 1948 between Jarnnadas and the applicant wherein Jarnnadas had shown his anxiety a see that the money was deposited in some Bank, and the applicant had assured him that it would be so deposited. But in his letter dated 10-1-1949 to Jutunadas, after the conveyance had been executed, the applicant mentioned that the vendee has raisedtain objections and had not paid the purchase price. This vendee was his own wife.

This is a clear indication that the recital in the conveyance deed that the amount had been paid was a false one and it was made fraudulently and dishonestly within the meaning of Section 423, Indian Penal Code. The subsequent conduct of the applicant in dealing with this property confirms such dishonest or fraudulent intention. So the ingredients of the offence are sufficiently proved. There is a concurrent finding of the two lower courts Taking all the important features of the case anxiously the consideration, I am of opinion that this is not a case in which I should interfere in revision. The revision application is therefore dismissed. The applicant to" surrender himself to his ball.