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SUPREME COURT OF INDIA
S.R. DAS, BHAGWATI AND JAGANNADHA DAS, JJ.
Kedar Nath Bajoria and another, Appellants
Versus
The State of W.B., Respondent.
Advocates appeared
Mr. N. C. Chatterjee, Senior Advocate (Messrs. S. N. Mukherji, P. N. Mehta, A. K. Dutt and Sukumar Ghose, Advocates, with him), (in No. 84) and Messrs. V. S. Sawhney, Amiya Kumar Mukherjea and R. R. Biswas Advocates, (in No. 85), for Appellants; Mr. C. K. Daphtary, Solicitor-General for India, (Mr. B. Sen Advocate, with him), instructed by Mr. R. H. Dhebar, Agent for Mr. G. H. Rajadhyaksha, Agent, for Respondent.
R09f of a godown belonging to the accused was requisitioned in 1943 and was under military occupation for over two years and a half. Possession of the roof was ultimately given up by the Military on the 8th November, 1946. Two claims were successively put forward by the appellants (I) in respect of damage to the roof, and (2) in respect of damage to the jute in the godown below due to leakage in the roof. It was ultimately suspected on investigation that the claims were fraudulent and a case relating to cheating, criminal misconduct or criminal conspiracy was made out. There was no direct evidence but entirely circumstantial evidence The defence case was that the claims were substantially true and that there was no question of any misrepresentation, fraud or collusion. The High Court concluded that the evidence did not disclose that any damage to the roof worth the name was caused by the occupying military and the subsequent conduct of the accused was as to lead to a reasonable and necessary inference that the claim in this respect was fraudulent and the result of a conspiracy. There was no specific evidence in the nature. of contemporaneous reports or the like as to the condition of the roof (2) when it was taken over by the Military authorities from the accused and (2) when it was handed back by them to the accused nor was there any direct evidence &bout the actual kind of use to which it was being put by the Government during this period.
Held (I) "The conclusions in this behalf have, therefore, to be necessarily framed with reference to the assertions and counter-assertions in the correspondence already noticed and the subsequent conduct of the parties. The offences charged have; therefore, to be brought borne to the appellants in the light of the principles laid down by this Court in Hanumant v. State of Madhya pradesh, (1952) S.C:R. 1091. A.I.R. 1952 S.O, 343 is applicable to such cases.
(2) It is well settled that before a person can be found guilty with reference to mere circwn8tantial evidence, each of the circumstance reject upon must be clearly established and the proved circumstances taken together must be such as reasonably to exclude the probability of innocence. Taking all the features together, the circumstances actually trade out fall far short of establishing any dishonesty or fraud in respect of the claim for compensation due in respect of damage to the roof. There might be room for suspicion that the claim was rather over-rated and that the appellant V was accommodating. But this is no substitute for proof of dishonesty and fraud.
(3) As. Regards the claim for compensation in respect of the alleged damages, to the stock of jute store inside the godown, there was reason to think, on the evidence in the case (apart from any subsequent circumstances) that the claim had peen very much inflated without any basis or foundation, to ought the occurrence of some damage might be true. The question then was whether the circumstance is brought forward relating to this portion of the case ere such as to lead to a clear inference that this claim was fraudulent and the result of a conspiracy.
(4) There were definite and clinching circumstances against the appellants which led to a reasonable and necessary conclusion that the claim put forward by them for compensation in respect of the alleged damage to the jute had been deliberately and fraudulently bolstered up, and. was the result of a mutual arrangement.
(5) The lacuna, however, is that there has been of questioning under section 342 at the Cr. P.C. of the two appellant on this part of the case as regards any of these adverse circumstances which form the bas is of the conclusion of the Courts below on this claim. There is a complete lack of any reference to these matters in the questions put to either of the appellants under section 342, Cr. P.C. This undoubtedly is a serious error and if prejudice was thereby caused, such an irregu1arity would entail retrial in the circumstances of a case like this. But before, a retrial could be ordered the Court must be clearly satisfied about prejudice having been
(6) On the facts of the case no serious prejudice was caused to the accused by this irregularity and a retrial at the stage of Supreme Court Appeal was not likely to be productive of any fruitful purpose. - Section 19-Recitals by agent of accused in a document. Held: In recitals in a document by person alleged to be agent of the accused, before the recitals can be used against the accused, in a criminal case, agency must be satisfactorily proved.
Judgment
JAGANNADHADAS J. : These two are appeals by special leave. The two appellants hearing along with two others were put up for trial before the Special Judge of the Special Court (Alipur), Calcutta, in respect of three charges, the first against all the four accused in respect of an offence under section 120-B of the Indian Penal Code read with section 420, I. P. C. and section 5 (2) of the Prevention of Corruption Act, 1947, the second as against Kedar Nath Bajoria, appellant in Cr. A. 84 of 1952 and his son Madan Lal Bajoria, in respect of an offence under section 420 of the Indian Penal Code, and the third against Hari Ram Vaid, appellant in Cr. A. 85 of 1952, and his assistant, Inder Said Bakshi, in respect of an offence under section 5(2) read with clause (1) (d) of the Prevention of Corruption Act, 1947.
Kedar Nath Bajoria and Hari Ram Vaid were both convicted in respect of the charge under section 120B of the Indian Penal Code. Kedar Nath Bajoria was, in addition, convicted in respect of the charge under section 420 of the Indian Penal Code, while Hari Ram Vaid was, also, convicted in respect of the charge under section 5(2) read with clause (1) (d) of the Prevention of Corruption Act, 1947. They were both sentenced to imprisonment and fine. The other two, namely, Madan Lal Bajoria and Inder Sain Bakshi, were acquitted. As against the judgment of the trial Court there were two appeals, one by each, to the High Court. The convictions and sentences were affirmed in a common judgment of the High Court. Against the judgment of the High Court special leave was granted by this Court on two applications. These two appeals first came up for hearing before a Constitution Bench of this Court with reference to certain objections raised under Article 14 and 20(1) of the Constitution. The objection under Article 14 was decided against the appellants by judgment dated the 22nd May, 1953. The objection under Article 20(1) which related only to the quantum of fine imposed on the appellant Kedar Nath Bajoria was allowed but did not affect his conviction. The judgment has been reported in - Kedar Nath Bajoria v. State of West Bengal . AIR 1953 SC 404 (A). These appeals were accordingly directed to be heard on the merits and have come before us.
2. The appellant, Kedar Nath Bajoria and his son Madna Lal Bajoria were the owners of the firm, Kedar Nath Mohanlal. The firm was the Managing Agent of Shiva Jute Press Ltd., Cossipore, Calcutta. A number of godowns belonging to the Shiv Jute Press were requisitioned by the Government on various dates between March and November 1943 for military purposes. These included the roofs of godowns Nos. 19 and 20 (excluding the godowns underneath). The roofs formed one continuous space and were known as roof No. 20 of the Press.
The said roof was requisitioned on the 6th March, 1943, and was under military occupation for over two years and a half. Possession of the roof was ultimately given up by the military on the 8th December, 1945. The charges against the appellants arise out of claims for compensation made by the firm Kedar Nath Mohanlal in respect of damage said to have been occasioned to the roof by misuse thereof by the military during their occupation, and also to the stock of jute belonging to the Press stored in the godown underneath consequent on leakage of water through the damaged roof during the rains. Two claims were successively put forward (1) in respect of damage to the roof, and (2) in respect of damage to the judge, the first in January, 1947, and the second in August, 1947.
The appellant Hari Ram Vaid who took charges as the area Lands and Hirings Disposals Officer in September, 1946, and continued as such at the time when these claims were made and scrutinised had the duty of examining them and making his recommendations thereon to the higher authorities. In respect of the first, the claim was for Rs. 61,139/- and he recommended the payment of a sum Rs. 47,550/-. This was ultimate
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