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SUPREME COURT OF INDIA
23rd May, 1957.
JAGANNADHA DAS, SINHA AND GAJENDRAGADKAR, JJ.
Sardul Singh Caveeshar, Appellant
Versus
The State of Bombay, Respondent.
Parmeshwar Nath Kaul, Appellant
Versus
State of Bombay, Respondent.
Vallabhdas Phulchand Mehta, Appellant
Versus
State of Bombay, Respondent.
Charuchara Guhan, Appellant
Versus
State of Bombay, Respondent.
Criminal Appeals Nos. 53 to 56 of 1957.
Cri. App. No. 53 of 1957.
Cri. App. No. 54 of 1957.
Cri. App. No. 55 of 1957.
Cri. App, No. 56 of 1957.
Advocates appeared
Mr. A. S. R. Chari Senior Advocate, (Mr. M. S. K. Sastri, Advocate with him) for Appellants; M/s. K. J. Khandalawala, Porus A. Mehta and R. H. Dhebar, Advocates, for Respondent.
Held: Where the appeals before the High Court and before the Supreme Court are against the convictions and sentences based on the acceptance of the verdict of the jury against each of the accused scope for interference on appeal either by the High Court or by the Supreme Court is very limited. - Section 4 - Evidence of person not - party.
Held: Evidence even of the conduct of a deceased conspirator is not admissible under S. 8 of the Evidence Act on the very terms of S. 8. The evidence of conduct admissible under S. 8 of the Evidence Act is of a conduct of a person who is al1artyto the action. - Sections 10, 14-Colispiracy to commit criminal breach of trust -Evidence relating to acts outside period of conspiracy.
The appellants were committed for trial in the Court of the sessions
Judge of Greater Bombay on charges of conspiracy to commit criminal breach of trust of the funds of the Jupiter, General Insurance Co. Ltd. And in pursuance of the said conspiracy having committed criminal breach of trust some of them being Directors and Agents of the said Company.
S who was the brain behind the conspiracy and who at the time was the Managing Director and had the control of the Tropical Insurance Co. Which by then was financially in a tottering condition, planned along with his confederates to obtain the control of the Jupiter which at the time was in a sound financial position by acquiring the controlling block of shares of the Jupiter and utilizing the funds of the Jupiter itself for the acquisition of such shares By, the date of the conspiracy the pitter had investments of the face value of Rs. 2 crores. It had issued 1,24,966 Ordinary Shares of Rs. 100/- each of which Rs. 15/-pet share was called up. It had also issued Cumulative Preference Shares G and T were at the time, that is in 1948, in control of the Jupiter. These persona owned through the name, of Prahlad "Mills Ltd. the controlling block of shares of the Jupiter, that is about 63000 shares of the Jupiter between themselves and their nominees,
After the negotiations a bargain was settled with T for the purchase of these controlling block, of shares at Rs. ,53/- per share for It sum of Rs.33,39, 000 ",Out of this amount a sum of :Rs. 5;39;000/- was to be paid over to G & T directly in cash and only Rs. 28,00,000/. would be shown as the price for the purchase of these shares. The arrangement was that on receipt of the case of Rs.5,39,000/ the management of the Jupiter was to be handed over to 8 and his group and that the balance money due of Rs. 28 lakhs was to he paid over to T on or before 20th January 1949. In default of such payment within the prescribed time 8 representing the Tropical should pay to T. Sum of Rs. 5 lakhs as damages for breach. In pursuance pf this agreement Rs. 4,85,000/- were paid over to G on or about 29th December1948, and a formal agreement dated 29th December 1948 was entered into, in cooperating the above terms. On that very day G and other Directors of Ts group held a meeting and allotted 1250 shares straightway to s and, four of his nominees, each 250 shares as qualifying shares for each, They confined the transfer of these shares by a Resolution and coopted S and his nominees as Directors and themselves resigned their respective offices as Directress thereafter G resigned his position as Managing Director of the Jupiter and at the same meeting S was appointed in his place as the Managing Director of the Jupiter.
The transfer of 61,750 shares for the sum of Rs. 28,15,000/- to be paid to G & T before 20th January 1949 was brought about in the following way:-
At the meeting of some of the Directors of Jupiter dated 11th January 1949 it was decided to sell the Jupiter securities of the face value of Rs. 15 lakhs at the market rate and to obtain over-draft accommodation for Rs.14 lakhs with the Punjab National Bank on the pledge of the Government securities of the Jupiter. At the same meeting a loan of Rs. 25,15,000/- purported to have been granted to C by way of equitable mortgagee on an alleged application by him dated 4th January 1949 relating to his properties at Delhi said to be given as security on the basis of an alleged valuation repel of a firm of Surveyors. There was an alleged Resolution authorizing the Director for purchase of plots of Delhi Stores for Its 2,60,000/-. This Delhi Stoles was under control of S and, according to prosecution, was the defunct organization at the time. The plan by this Resolution was that the cash was to be taken from the Jupiter partly by sale of securities and partly by pledges of securities and that money was to be shown as having been loaned to C on the secruity of his Delhi properties and a further amount as having been invested for the purchase of plots of Delhi Stores. S was to receive these amounts on behalf of and the Delhi Stores and to pay over the cash that would thus come into his hands to G and T as per the agreement. There were a number of intermediate transactions which according to the prosecution were bogus and fraudulent. The charge of conspiracy related the property from December 1948 to January 31, 1949 and comprised in all eight persons of whom S and one other died before the commencement of the trial. C and the remaining three nominees of S were sent up for trial. During the course of appeal to the Supreme Court it was considered how far evidence relating to S outside period of conspiracy could be taken into account in any conspiracy to commit criminal breach of trust
Held: Section 10 of the Evidence Act must be construed in accordance with the principle that the thing done, written, of spoken, was something one in carrying out the conspiracy and was receivable as a step in the proof of the conspiracy. In criminal trials, on a charge of conspiracy evidence not admissible under S. 10 of the Evidence Act as proof of the two issues to which it relates, viz., of the existence of conspiracy and of the fact of any particular person being a party to that conspiracy, is not admissible ,at all. What is sought to be admitted in such a case is, something said, or done, or written by any one of the co-conspirators behind the backs of the others as being in law attributable to the others and what is sought to be proved by such evidence taken by itself is the existence of the conspiracy as between the alleged conspirators and the fact that a particular person was a party to the conspiracy. It is such evidence that is inadmissible otherwise than under S. 10 of the Evidence Act. Quite clearly, in the normal class of cases, such evidence is admissible as against himself and not against others, excepting where there is relationship of agency or representative character or joint interest. In civil cases it is well settled that a principal is bound by the acts of his agent if the latter has au express or implied authority from the former and the acts are within the scope of his authority. Therefore acts of an agent are admissible in evidence as against the principal. An analogous principle is recognized in criminal matters in so far as it can be brought in under S. 10 of the Evidence Act. The principle underlying the reception of evidence under S. 10 of the Evidence Act of the statements, acts and writings of one co-conspirator as against the other is on the theory of agency. The rule in S. 10 Evidence Act, confines that principle of agency in criminal matters to the acts of the co-conspirator within the period during, which it can be said that the acts were "in reference to their common intention" that is to say "things said, done or written, while the conspiracy was; on foot" and "in carrying out the conspiracy. "It would seem of follow that where the charge specified the period of conspiracy, evidence of acts of co-conspirators outside the period is not receivable in evidence. But ill a conspiracy to commit criminal breach of trust all evidence which would go to show that certain transactions are bogus, is certainly admissible. That would be so notwithstanding that such evidence may necessitate reference. to and narration of the acts of the conspirators beyond the period of conspiracy but within reasonable limits, because if they were genuine transactions, by virtue of which money did pass on the basis of good security, showing these amounts to, be genuine business investments, then it would be: difficult to make out that there was any criminal breach of trust. It is also reasonably clear that the conduct in general of each individual co-conspirator including his acts, writings and statements is evidence against him self There can be no doubt that such conduct irrespective of the time to which it relates can be relied on by the prosecution to show the criminality of the intention of the individual accused with reference to his proved participate in the alleged conspiracy, that is, to rebut a probable defence which !ray normally arise in such a case viz., that the participation, though proved" was innocent. Such evidence would come under S. 14 of the Evidence Act It is well settled that the evidence in rebuttal of a very likely and probable defence on the question of intention can be led by the prosecution as part of its case. Though the very reference to acts and conduct of a conspirator during the year which is beyond the period of conspiracy, may conceivably be capable of being wrongly relied on by the jury in respect of issues on which they are not admissible and might be capable of producing Some prejudice, this is a possibility inherent in such cases. However carefully assessors or a jury are directed and however firmly a Judge may settle his mind against being influenced against one by the evidence admissible only against the other, nevertheless the mind may inadvertently be affected by the disclosures made by one of the accused to the detriment of the other. Undoubtedly this weighty caution has to be always kept in mind when Judges and juries have to deal with such complicated cases. But that by itself without showing that serious prejudice would, in all likelihood, have occurred in the particular case, would not be enough to vitiate the convictions. - Section 21-Admission by accused
Held, Letters written by accused were evidence only against themselves.
JUDGMENT
Jagannadhadas, J.
These are appeals by special leave by four persons, who along with one Ramniklal Keshavlal Jhaveri (since acquitted) were committed for trail in the Court of the Sessions Judge of Bombay, on charges of conspiracy to commit criminal breach of trust of the funds of the Jupiter General Insurance Co., Ltd. (hereinafter referred to as the Jupiter) and in pursuance of the said conspiracy of having committed criminal breach of trust, some of them being Directors and Agents of the said company.
They were alternatively charged for commission of the offence of criminal breach of trust by some of them as Directors and the others for abetting the commission of the criminal breach of trust committed by the Directors. The trial before the Sessions Judge was with the aid of a jury.
All of them except Jhaveri were found guilty. appellants in Criminal Appeals Nos. 53 and 54, Sardul Singh Caveeshar and Parmeshwar Nath Kaul, by a majority verdict and appellants in Criminal Appeals Nos. 55 and 56, Vallabhdas Phulchand Mehta and Charucharan Guha, by a unanimous verdict. The verdicts of the jury were accepted by the Sessions Judge who sentenced the appellants as follows:
Appellant Sardul Singh Caveeshar to rigorous imprisonment for three years and a fine of Rs. 2,500.
Appellant Parmeshwar Nath Kaul to rigorous imprisonment for five years and a fine of Rs. 5,000.
Appellant Vallabhdas Phulchand Mehta to rigorous imprisonment for five years and a fine of Rs. 5,000.
Appellant Charucharan Guha to rigorous imprisonment for three years and a fine of Rs. 2,500.
2. The charge of conspiracy related to the period from December 1,1948 to January 31,1949, and comprised in all eight persons of whom two Lala Shankarlal Hiralal Bansal (hereinafter referred to as Lala Shankarlal) and Saubhagyachand Umedchand Doshi (hereinafter referred to as Doshi) died before the commencement of the trial. One Lala Ram Sharandas alias Ramsharan Lala Haricharan Mahajan (hereinafter referred to as Mahajan) was also a party to the conspiracy. But for some reason or other, the trial against him was separated. The persons who were on trial in the present case are the following:
1. Parmeshwar Nath Kaul, accused No.1 and appellant in Criminal Appeal No.54 of 1957 (hereinafter referred to as Kaul).
2. Vallabhdas Phulchand Mehta, accused No.2 and appellant in Criminal Appeal No.55 of 1957 (hereinafter referred to as Mehta).
3. Ramniklal Keshavlal Jhaveri, accused No. 3 and since acquitted by the Sessions Judge (hereinafter referred to as Jhaveri).
4.Charucharan Guha, accused No. 4 and appellant in Criminal Appeal No. 56 of 1957 (hereinafter referred to as Guha)
5. Sardul Singh Caveeshar, accused No. 5 and appellant in Criminal Appeal No.53 of 1957 (hereinafter referred to as Caveeshar).
3. Lala Shankarlal, who was residing at No.16, Bara Khamba Road, New Delhi was the Managing Director of the Tropical Insurance Co. Ltd., New Delhi (hereinafter referred to as the Tropical). He was also a Director of the Punjab Central Bank. He had also floated and was controlling a company called the Delhi Swadesi Co-operative Stores (hereinafter referred to as the Delhi Stores). He was also a leader of the Forward Bloc in the year 1948.
4. Accused No.1, Kaul, is a Barrister and was in Lahore till the partition of the country In December 1948, he was in Delhi.
5. Accused No.2, Mehta, at all material times was the Manager of the Bombay Office (General) of the Tropical.
6. Mahajan, at all material times was the Secretary of the Tropical. He was also a Director-in-charge of the Delhi Stores.
7. Accused No.3, Jhaveri, was a Bombay Solicitor and at all material times was Carrying on his profession as a Solicitor in Bombay.
8. Doshi was, till his death, a Solicitor in Bombay and was carrying on his profession as such.
9. Accused No.4, Guha, was in December 1948, an Accountant of the Tropical.
10. Accused No.5, Caveeshar, was the Managing Director of the Peoples Insurance Co. He was also the Managing Director
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