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SUPREME COURT OF INDIA
V. RAMASWAMI, V. BHARGAVA AND RAGHUBAR DAYAL, JJ.
Bakhshish Singh Dhaliwal, Appellant
Versus
The State of Punjab, Respondent.
Criminal Appeals Nos 150 and 1151 and 196 to 199 of 1962, D/- 31-8-1966.
Advocates appeared
Mr. R. L. Anand, Senior Advocate, (M/s. Hira Lal Sibal, J. C. Talwar and R. L. Kohli, Advocates, with him), for Appellant (In Cri-As. Nos. 150 and 151 of 1962) and the Respondent (In Cri. As. Nos. 196 to 199 of 1962); Mr. Purshottam Tricumdas, Senior Advocate, (M/s. K. C. Chawla and R. N. Sachethey, Advocates, with him), for Respondent (In Cri. As. Nos. 150 and 151 of 1962) and Appellant (In Cri. As. Nos. 196 to 199 of 1962).
CRIMINAL LAW - Cheating - Ingredients - Representation made by appellant to Burma Government for payment of money for works not carried out by him - Payments made on basis of reports of officers verifying claims - Appellant's conviction for cheating upheld - Offence under S. 417, I. P. C., not committed - Trial of appellant along with abettor without sanction under S. 197, Cr. P. C., not vitiated - Special Tribunal constituted under Ordinance 29 of 1943 - Validity - Punjab Ordinance III of 1946 and Punjab Act X of 1950 - Effect - Constitution of Tribunal - Validity - Examination of witnesses - Opportunity to appellant - Denial - Absence of - War Diaries - Admissibility - S. 35, Evidence Act - Scope - Examination of accused under S. 342, Cr. P. C. - Scope - Sentence - Reduction by High Court - Interference by Supreme Court.
Fact of the Case:
The appellant, a contractor, submitted a number of claims to the Government of Burma for works allegedly executed by him and materials supplied. These claims were verified by three different officers and payments were made to the appellant in respect of those claims. Subsequently, suspicions were aroused concerning many of the claims made by the appellant and it was discovered that some of the claims were false and bogus. Consequently, further investigations were made and the appellant was prosecuted in respect of ten different charges of cheating.
Finding of the Court:
The Supreme Court upheld the conviction of the appellant for cheating in respect of three charges. The Court held that the representations made by the appellant in his claims amounted to false representations which induced the Burma Government to make payments to him. The Court also held that the payments were not the result of any wrong representations contained in the reports of the officers who verified the claims, but were made only because the appellant had submitted those claims in the first instance. The Court further held that the trial of the appellant along with an abettor without sanction under S. 197, Cr. P. C., was not vitiated, as the abettor was not being prosecuted for the act of certification of the correctness of the bills, but for abetment of the offence of cheating committed by the appellant. The Court also held that the Special Tribunal constituted under Ordinance 29 of 1943 was validly constituted and that the Punjab Ordinance III of 1946 and Punjab Act X of 1950 continued the powers of the Tribunal and its validity. The Court further held that the appellant was given an adequate opportunity to produce his defence evidence and that the War Diaries were admissible in evidence. The Court, however, reduced the compulsory fine imposed on the appellant in respect of one of the charges.
Issues: 1. Whether the appellant was guilty of cheating under S. 420, I. P. C.? 2. Whether the trial of the appellant along with an abettor without sanction under S. 197, Cr. P. C., was vitiated? 3. Whether the Special Tribunal constituted under Ordinance 29 of 1943 was validly constituted? 4. Whether the appellant was given an adequate opportunity to produce his defence evidence? 5. Whether the War Diaries were admissible in evidence?
Ratio Decidendi: 1. The representations made by the appellant in his claims amounted to false representations which induced the Burma Government to make payments to him. The payments were not the result of any wrong representations contained in the reports of the officers who verified the claims, but were made only because the appellant had submitted those claims in the first instance. Therefore, the appellant was guilty of cheating under S. 420, I. P. C. 2. The abettor was not being prosecuted for the act of certification of the correctness of the bills, but for abetment of the offence of cheating committed by the appellant. Therefore, the trial of the appellant along with the abettor without sanction under S. 197, Cr. P. C., was not vitiated. 3. The Special Tribunal constituted under Ordinance 29 of 1943 was validly constituted and the Punjab Ordinance III of 1946 and Punjab Act X of 1950 continued the powers of the Tribunal and its validity. 4. The appellant was given an adequate opportunity to produce his defence evidence. 5. The War Diaries were admissible in evidence under S. 35 of the Evidence Act, as they were records of official acts.
Final Decision: The appeals filed by the appellant were dismissed, subject to the modification that the compulsory fine imposed on the appellant in respect of one of the charges was reduced.
Judgment
BHARGAVA, J. : These six appeals, filed on the basis of certificates granted by the High Court of Punjab, arise out of a single Judgment of that Court, and consequently, they have been heard together. Two of the appeals Nos. 150 and 151 of 1962 have been brought up by Bakhshish Singh Dhaliwal (hereinafter referred to as "the appellant") against his convictions on three different charges of cheating under S. 420 of the Indian Penal Code which were upheld by the High Court. The remaining four appeals Nos. 196 to 199 of 1962 have been filed by the State of Punjab against the acquittal of the appellant in respect of offences of cheating on some other counts recorded by the High Court.
2. There were all together four trials before a Special Tribunal originally constituted under ordinance 29 of 1943. In these four trials, the appellant was charged for having committed ten different offences of cheating by making representations to the Government of Burma and obtaining payments of money to the extent of over Rs. 6 lakhs which included payments in respect of works which had not been carried out by him as a contractor, though he claimed that the work had been done and he was entitled to payment in respect of those works.
3. The facts which are relevant for the decision of these appeals fall under a very short compass. In the year 1942, the Government of Burma and the Allied Forces operating there were compelled to leave Burma as a result of the Japanese invasion. For purposes of evacuation from Burma and the defence of that country, the Government of Burma and the army had to execute certain works of the nature of construction of roads, repairs and construction of bridges, strengthening and repairing of old tracks and converting railway lines into motor roads. Some of these works were executed by the army itself, while others were entrusted to contractors.
4. After the evacuation, the Government of Burma was located at Simla. Due to the disturbed conditions, no exact records were available of the works done by the various contractors and consequently, in August 1942, the Government of Burma issued an advertisement inviting claims from contractors who had executed works or had supplied materials in Burma during this period and had not yet been paid.
5. The appellant submitted a number of claims in respect of various works which he claimed had been executed by him as well as for supply of materials. These claims were in the form of bills and were in respect of works which he claimed had been carried out under the instructions of various units of the army. These bills were sent for verification to three different officers, Henderson Nasse and Karam Singh, and after their verification, payments were made to the appellant in respect of those bills. In one or two cases, the payments were only partial, while in other cases the entire claims as recommended by those officers were paid off.
6. In the case of the appellant, it was found that he had put in 20 claims for various works alleged to have been done or materials supplied. Sixteen of these claims aggregated to an amount of Rs. 16,31,808 out of which a sum of Rs. 6,87,173 was paid by means of cheques issued by the office of the Controller of Military Accounts working with the Burma Government situated at Kohlapore.
7. Subsequently, suspicions of the Government of Burma were aroused concerning many of the claims made by various contractors including the claims made by the appellant, and it was discovered that some of the claims were false and bogus. Consequently, further investigations were made and thereafter the appellant was prosecuted in respect of ten different charges. Since there were a number of such cases to be tried, Special Tribunals were constituted by issuing Ordinance No. 29 of 1943; and two of these Tribunals were located at Lahore. The cases against the appellant were entrusted to one of these Tribunals.
8. Before the Tribunal, the ten charges against the appellant were giv
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