1. Conspiracy to commit criminal breach of trust and falsify accounts of a company — Conviction by Sessions Court — Acquittal by High Court — Appeal by State. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 )
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1963 Supreme(SC) 141
SUPREME COURT OF INDIA
23rd April 1963
K SUBBA RAO, RAGHUBAR DAYAL AND J.R. MUDHOLKAR, JJ.
The State of A.P., Appellant
Versus
Cheemalapati Ganeswara Rao and another respondent .
Criminal Appeal No. 39 of 1961.
Advocates appeared
Mr A. S.R. Chari, Senior Advocate, (M/S. K. R. Chaudhuri and P. D. Menon Advocates with him), for Appellant; Mr. Bhimasankaram, Senior Advocate, (Mr .R. Thiagarajan Advocate, with him), for Respondent No.1 Mr. R. Mahalingier, Advocate, for Respondent No.2. 1854
Advocates:
A.S.R.CHARI, BHIMASANKARA, K.R.CHAUDHARY, P.D.MENON, R.MAHALINGA IYER, R.THIAGARAJAN
A.S.R.CHARI, BHIMASANKARA, K.R.CHAUDHARY, P.D.MENON, R.MAHALINGA IYER, R.THIAGARAJAN
The Supreme Court held that Section 239 CrPC provisions can be applied cumulatively to avoid multiplicity of trials. It ruled that conspiracy charges remain valid after the commission of planned offences and that the absence of account entries is relevant evidence under Sections 5 and 11 of the Evidence Act.
Headnote:(A) Code of Criminal Procedure, 1898 - Sections 233, 234, 235, 236, 239, 337, 342, 537 - Indian Penal Code, 1860 - Sections 120-B, 409, 467, 471, 477-A - Indian Evidence Act, 1872 - Sections 5, 11, 34, 159, 160 - Joinder of charges and persons - The provisions of Section 239 are enabling and can be applied cumulatively to avoid multiplicity of trials. The limitation under Section 234(1) regarding the number of offences of the same kind committed within twelve months does not override Section 239 when several persons are tried jointly for offences committed in the course of the same transaction. (Paras 25, 26, 29)
(B) Indian Penal Code, 1860 - Section 120-B - Criminal Conspiracy - The offence of conspiracy is an independent offence. Even if the offences planned in the conspiracy are actually committed, the liability of the conspirators for the conspiracy itself does not disappear. (Para 39)
(C) Code of Criminal Procedure, 1898 - Section 337 - Pardon of Approver - A pardon granted by an Additional District Magistrate is valid if the power is conferred by government directions. A pardon granted bona fide is protected under Section 529. (Paras 54, 55)
(D) Indian Evidence Act, 1872 - Sections 5, 11, 34 - Admissibility of account books - While Section 34 does not explicitly address the non-existence of entries, the absence of entries in account books is a relevant fact under Section 11, as it may be inconsistent with the fact in issue, and under Section 5, which allows evidence of the non-existence of every fact in issue. (Para 44) (E) Code of Criminal Procedure, 1898 - Section 342 - Examination of accused - The court's duty is to provide the accused an opportunity to explain circumstances appearing in evidence. It is not mandatory for the court to explicitly draw the attention of an accused person, represented by counsel, to the right to give evidence on oath under subsection (4). (Para 43)
Facts of the case:
Employees of a company were charged with criminal conspiracy, criminal breach of trust, falsification of accounts, and forgery. The trial court convicted the respondents, but the High Court subsequently acquitted them on grounds including misjoinder of charges, the illegality of the pardon granted to an approver, and the inadmissibility of certain account books. The State appealed the acquittal to the Supreme Court.
Findings of Court:
The court found that the joinder of charges was legal as Section 239 allows for cumulative application of its clauses. The charge of conspiracy was maintainable despite the commission of the substantive offences. The pardon granted to the approver by the Additional District Magistrate was legally valid. Furthermore, the absence of entries in the account books of third parties was held to be relevant evidence under the Evidence Act. The examination of the accused under Section 342 was deemed fair.
Issues: (1) Whether the various clauses of Section 239 of the Code of Criminal Procedure can be applied cumulatively to try several persons for multiple offences. (2) Whether a charge of conspiracy is maintainable after the planned offences have been committed. (3) Whether a pardon granted to an approver by an Additional District Magistrate is valid when the case is pending before a District Magistrate. (4) Whether the absence of entries in account books is admissible and relevant evidence.
Ratio Decidendi: Section 239 is an enabling provision intended to prevent the multiplicity of trials; its clauses are not mutually exclusive and can be used together. Conspiracy is a distinct offence that persists regardless of whether the intended crime was completed. Under the Evidence Act, the non-existence of a fact (such as an account entry) is relevant if it is inconsistent with a fact in issue or is itself a fact in issue.
Result: Acquittal set aside and case remanded to the High Court for decision on merits.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Misjoinder of charges and persons — Illegal pardon of approver — Inadmissible evidence — Abuse of powers under Section 342, CrPC — Unreliability of approver's evidence. (Para 18 , 19 )
3. Clauses of Section 239, CrPC can be applied cumulatively — Conspiracy is an independent offence — Account books are relevant under Section 11, Evidence Act to prove non-receipt. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 )
4. Section 239, CrPC allows cumulative application of its clauses to avoid multiplicity of trials — Misjoinder does not vitiate conviction unless it causes failure of justice. (Para 25 , 29 , 33 )
5. Can the various clauses of Section 239 of the Code of Criminal Procedure be applied cumulatively for joint trials?
Yes, the clauses are enabling provisions and can be applied cumulatively to avoid multiplicity of trials, provided the offences are committed in the course of the same transaction. (Para 24 , 25 , 29 , 30 )
6. Can a charge of conspiracy be framed if the offences planned in the conspiracy have already been committed?
Yes, criminal conspiracy is an independent offence. The liability for the conspiracy itself does not disappear even if the planned crimes are actually committed. (Para 34 )
7. Does a misjoinder of charges automatically entitle an accused to have their conviction set aside?
No, under Section 537 of the Code, a finding or sentence cannot be set aside on the ground of misjoinder unless it has occasioned a failure of justice. (Para 33 )
Judgement
MUDHOLRAR, J. : The respondent No.1 was tried before the Court of Session. Visakhapatnam for offences under S.120-B Indian Penal Code, S.409, S.477-A and S.471 read with S.467, I.P.C while respondent No. 2 was tried for an offence under S. 120-B and for offences under S. 409 read with Ss. l09, 477-A and 471 read with S. 467 I. P. C. Each of the respondents was connected of the first two offences, but the respondent No.1 alone was convicted of the other two offences. Various sentences were passed against them by the Additional Sessions Judge, Visakhapatnam, who presided over the court. The respondents preferred appeals before the High court challenging their convictions and sentences. The State on the other hand preferred an application for revision under S.439, Cr.P.C. for the enhancement of the sentences passed on the respondents. The High Court allowed the two appeals, acquitted the respondents and dismissed the application for revision preferred by the State. The State of Andhra Pradesh has come up before this Court in appeal by obtaining special leave under Art. 136 of the Constitution.
2. The prosecution case in so far as it is material for the decision of the appeal is as follows :
3. In the Year 1929 the Andhra Engineering Co., which was originally a partnership farm formed by one D. L. N. Raju was converted into a private limited company with its headquarters at Visakhapatnam.(We shall refer to this company throughout as the AECO). It obtained licences from the Government under the Electricity Act for supply of electrical energy to Visakhapatnam Anakapalli and some other Places. As the AECO did not have the necessary capital to undertake the work Raju floated in the Year 1933, a public limited company called Visakhapatnam Electric Supply Corporation LTD., (referred to hereafter as VESCO) and another in the year 1936 called the Anakapalli Electric Supply Corporation Ltd. The AECO transferred its licences for the supply of electrical energy to the consumers of Visakhapatnam to VESCO and similarly transferred to VESCO the licence to supply electrical energy to consumers at Anakapalli. The AECO was appointed Managing Agent for each of these Corporations under separate agreements. Some time later other industrial concerns, the Andhra Cements Ltd., Vijayawada and the East Coast Ceremics, Rajahmundry were started apparently by Raju himself and the AECO was appointed the Managing Agent of each of these concerns. The original managing agency agreement in favour of AECO with respect to VESCO was for a period of 15 Years i.e. from 1933 to 1948 and was later renewed for the remaining term of the currency of the licence granted by the Government under the Electricity Act. A mention may be made of the fact that in June 1952 the VESCO undertaking was acquired by the Government under the provisions of the Electricity Undertaking Acquisition Act" but nothing turns on It.
4. The VESCO had its own Board of Directors while the AECO had also its separate Board of Directors. The VESCO had no Managing Director but at each meeting of its Board of Directors one of the Directors used to be elected Chairman. The same practice was followed at the meeting of the general body of the shareholders. The AECO on the other hand always had a Managing Director first of Whom was .D.L.N. Raju. He died in the Year 1939 and was succeeded by R.K.N. G..Raju, an Advocate of Rajahmundry. This person however, did not shift to Visakhapatnam on his becoming Managing. Director but continued to stay most of the time at Rajahmundry. According to the prosecution both these concerns were running smoothly and efficiently during the lifetime of D.L.N. Raju because - he was personally attending to their D affairs. His successor, however, apart from the fact that he continued to be staying mostly at Rajahmundry, was also interested in several other ventures, including a sugar factory at Dewas in Central India. Eventually many of those ventures failed. According to the
