V. Kalyanasundaram vs The Inspector of police (Crime Branch) Salem

Arunachalam, J.—Petitioner was arrayed as A-2 in C.C. No. 596 of 1989 on the file of Judicial Magistrate No. 6, Salem. He was charged, along with three others, the first of whom is his father and the other two, his brothers, alleging that all the four of them, who are partners of M/s. A.S. Venkatachalam and Sons, acting as brokers at Tiruppur for Jawahar Mills Limited, Salem, for distributing and selling yarn to customers in various places in and around Tiruppur agreed to do and cause to be done certain illegal acts, at Tiruppur, between 1.5.1973 and 31.7.1978, namely, to commit the offence of cheating Jawahar Mills Limited, Salem by false representations and submitting false statement of accounts and making false accounts to conceal the offence of cheating and thereby committed an offence punishable u/s 120-B, I.P.C. Since all acts were committed by them, in pursuance of a conspiracy, they were further charged u/s 420, I.P.C. alleging that during the said period, in pursuance of the conspiracy, referred to above, all the accused, acting as brokers of Jawahar Mills Limited, Salem, cheated the said Mills by furnishing false Indian Overseas Bank counterfoils and making false representations as if yarn cone purchasers at Tiruppur have paid their dues to Jawahar Mills totaling in all Rs. 81,195.49 in respect of yarn supplied through the accused and thereby caused wrongful loss to Jawahar Mills. The last charge was u/s 477-A, I.P.C. alleging that in the course of the same transaction and in pursuance of the conspiracy referred to above during the very same period, they willfully and with intention to conceal the offence of cheating committed by them, dishonestly and fraudulently prepared false and bogus pay-in slips counterfoils of the Indian Overseas Bank, Tiruppur and submitted them to Jawahar Mills, Salem, as though they were by yarn cone buyers mentioned in the counterfoils.

After an elaborate trial, learned trial Magistrate acquitted all the accused of the charges under Ss.l20-B and 420, I.P.C. A-3 and A-4 were also acquitted of the charge u/s 477-A, I.P.C. Petitioner (A-2) and his father (A-l) were alone convicted u/s 477-A, I.P.C. and sentenced to undergo rigorous imprisonment each, for one year. Aggrieved Petitioner and his father preferred Criminal Appeal No. 69 of 1991 before the Principal Sessions Judge, Salem. Appellate Court held that there was no clinching evidence against Venkatachalam, father of the Petitioner, and hence acquitted him of the charge u/s 477- A, Indian Penal Code. as well. Conviction and sentence imposed on the Petitioner alone were confirmed and hence this revision.

Though Mr. N.P.K. Menon, learned Counsel appearing on behalf of the Petitioner, submitted that a broker would not fall u/s 477-A, Indian Penal Code. since the word "broker" has been omitted, contra distinguished from its presence in Section 409, I.P.C, it was controverted by Mr. R. Raghupathi, learned Additional Public Prosecutor, stating that the Petitioner had acted as an agent and hence distinction sought to be drawn by Petitioner''s learned Counsel may not ensure in favour of the Petitioner. It was further submitted by Petitioner''s learned Counsel, that the conviction on the Petitioner, solely rests on the evidence of the Handwriting Expert, who has offered his opinion, that the writings in Exs.P.23 and P.27 tallied with the writings of the person in Ex.P.37, forwarded to him, for comparison. The argument was that Thiru Ramanathan, Inspector of Police, who had allegedly obtained the specimen signatures, of the Petitioner could not be examined, since he died pending investigation and hence there was no proof that the writings compared by the Expert were that of the Petitioner, This argument cannot be easily brushed aside as not significant for even during pendency of investigation, Thiru Ramanathan had died and his successor, P.W.I9, took up further investigation. It was the successor who had forwarded the specimen signatures and the disputed writings to the Expert. He must have been aware that the specie; men writings must be established to be that of the Petitioner and towards that end when he was aware that Thiru Ramanathan, the previous Investigating Officer had expired, ought to have obtained fresh specimen writings or in any event proved clinchingly by secondary evidence, that the specimen writing was that of the Petitioner. That not having been done, a lacuna does exist, more so since the accused has denied his involvement in the crime alleged.

But, even the said lacuna can be kept aside, for on a more vital ground, this revision is bound to be allowed. I have already extracted the nature of charges framed. It is apparent from the substance of the charges that the conspiracy was to cheat by falsifying documents. The manner of cheating was by falsification of documents. If the charges framed u/s 120-B, I.P.C. and 420 I.P.C, resulted in an acquittal, naturally it will be destructive of the charge framed u/s 477-A, I.P.C, since falsification was the mode for cheating. If there is no cheating, falsification of accounts alone cannot survive, more so on the facts unfurled. If any authority is required for that proposition, useful reference can be made to the principle laid down by Alagiriswami, J. as he then was, in Public Prosecutor Vs. P.C. Raju and Others, . The Head Note reads as hereunder:

Accused charged with breach of provisions of Import and Export (Control) Act - Accused falsifying accounts with a view to facilitate original Offence - Original Offence failing - Charge u/s 477-A also fails.

The learned Judge observed as follows:

The whole of the prosecution case rests upon the basis that there has been a contravention of the Imports and Exports Control Act, 1947, and the Exports (Control) Order as well as the conditions of the licence. That the various accused have brought into existence various documents, in order to show that the chilies which were exported, were the produce of the members of the primary societies and that they were exported from their respective headquarters of the primary societies is, the whole of the charge in respect of falsification of accounts as well as the preparation of the other documents. Once it is held that there has been no contravention of the provisions of either Imports and Exports Control Act 1947 or the Exports (Control) Order, or any of the conditions of the licence, the accused could not be held to be guilty of the charge of falsification of accounts.

The converse position was considered by the Supreme Court in Amritlal Ratilal Mehta and Another Vs. State of Gujarat, ). The relevant portion, reads as hereunder:

Held that the question whether an earlier finding which had attained finality is binding in the subsequent proceedings in the case would depend on the question as to what the allegations were, what facts were required to be proved and what findings were arrived at. On the facts of the case the finding of fact to the effect that the gate-passes were made inadvertently and negligently and not willfully or with intent to defraud which led to the acquittal of the accused on the charge u/s 477-A, must, that acquittal having become final, operate for the benefit of the accused and lead to their acquittal on the charge u/s 420 also. The finding that the gate-passes were made inadvertently and negligently, wad destructive of the charges under both Sections 420 and 477-A. The accused were therefore entitled to acquittal on the first charge u/s 420/34, I.P.C. also.

On the factual perspective as well as on the law laid down, Petitioner is bound to succeed. His conviction and sentence are set aside and he is acquitted. This revision is allowed.