Judgment

GAJENDRAGADKAR, J.: A criminal conspiracy to which according to the prosecution. M. G. Agarwal, M. K. Kulkarni and N. Laxminarayan hereafter called accused Nos. 1,. 2 and 3 respectively, were parties between December, 1954 and June, 1955 at Bombay has given rise to the criminal proceedings from which the two present appeals arise. At the relevant time, the three accused persons were attached to the office of the Income-tax Officer, Ward No. A-III in Greater Bombay. Accused No. 1 was designated as the First Income-tax Officer, and accused Nos. 2 and 3 worked under him as second and third Assessment Clerks respectively. The main charge against these persons was that during the relevant period, they had entered into a criminal conspiracy by agreeing to do or use to be done illegal acts by corrupt and illegal means and by abusing their position as public servants to obtain for themselves pecuniary advantage in the form of income-tax refund orders and this criminal object was achieved by issuing the said refund orders in the names of persons who either did not exist or were not assessees entitled to such refunds. The prosecution case was that after the said refund orders were thus fraudulently issued, they were fraudently cashed and illegally misappropriated. The ten persons in whose names these refund orders were fraudulently issued were, G. M. Thomas, P. N. Swamy, K. S. Patel, S. R. Bhandarkar S. P. Jain, D. M. Joshi, C. B. Kharkar, Ramnath Gupta, V. M. Deasai and K. V. Rao. It appears that twenty-five bogus vouchers were issued in respect of these ten fictitious cases; eleven accounts were fraudulently opened in different Banks in Bombay and misappropriation to the extent of Rs. 54,000/- has hereby been committed. That, in substance, is the main charge which was levelled against the three accused persons.

2. Nine other subsidiary charges were also framed against them. Charges 2, 3 and 4 were in respect of the income-tax refund order issued on the 7th January, 1955 in favour of Mr. G. M. Thomas. The prosecution alleged that by their several acts in respect of the issuance of this refund order, the three accused persons had committed offences under Ss. 467 & 471 read with S. 34 I.P.C. as well as section 5(2) of the Prevention of Corruption Act read with S. 5 (1) (d) of the said Act & S. 34 of the Indian Penal Code. Similiarly charges 5.6 & 7 were framed under the same sections respectively in regard to the income-tax refund order issued in favour of Mr. G. M. Thomas on the 2nd April, 1955. In regard to the income-tax refund order isued in favour Mr. S. R. Bhandarkar on 2nd April, 1955 charges 8, 9 and 10 were framed under the said respective sections. That is how the case against the three accused persons under ten charges was tried by the Special Judge, Greater Bombay.

3. It would thus be seen that in substance, the prosecution case is that in order to carry out the criminal object of the conspiracy, the three accused persons adopted a very cleaver and ingenious modus operandi in defrauding the public treasury. They decided to take adequate steps to issue income-tax refund orders in the names of non-existing persons and to misappropriate the amounts by encashing the said refund certificates issued in pursuance of the said refund orders. In furtherance of the conspiracy and in furtherance of the common intention of all the conspirators, steps were taken to forge the signatures of the said fictitious persons as claimants wherever necessary, to prepare some of the supporting documents and to deal with the cases as though they were cases of genuine assessees submitting a return and making a claim for refund. It is by adopting this clever device that all the accused persons have succeeded in misappropriating such a large amount as R. 54,000/-

4. It appears that when a return or refund application is received in the Income-tax Office, it first goes to the assessment refund clerk who, in due course, puts it up for orders before the