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TMI Blog1959 (9) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... ture and repair of Royal Air Force equipment. In or about October 1943 the Company entered into a contract with Messrs. Ramdas and Sons for the purchase of certain machinery and tools at an agreed price of ₹ 3,05,001 and obtained possession of the same. On January 8, 1944, Ramdas and Sons wrote a letter (Ex. C), with an enclosure (Ex. D) giving a description of the machinery sold, to the Company acknowledging the receipt of the full price. In or about January 1944, Ex. D, the list of machinery, was detached from the letter and the price of the machinery was inserted therein as ₹ 4,'05,001, with the result that the list of machinery (Ex. D) was converted into a voucher. On the basis of that voucher, necessary entries were posted in the accounts of the Company debiting the Plant and Machinery Account with ₹ 4,05,001, and crediting Ramdas and Sons with an equal amount. An amount of ₹ 3,05,001, was shown as having been paid to Ramdas and Sons, and the balance of ₹ 1,00,000 remained credited to their account. This balance was carried forward from year to year till March 30, 1946. About the end of 1944, accused No. 1 paid Sir Chinubhai Madhavlal a sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd continued to be parties to it up to the 7th day of September 1948 to do illegal acts to wit to cheat the Government of India by submitting inflated bills based upon depreciation of 10 per cent allowed by the contract entered into between the Asian Air Associates and the Government of India, calculated upon the value of the machinery bought from Ramdas and Sons shown at a higher figure than what was actually paid to them, and by not disclosing and deducting the commission earned from the Electric Cable and Machinery Co. Ltd. for the electric goods purchased from them and that you both thereby committed an offence punishable under Section 120B of the Indian Penal Code and within the cognizance of the Court of Session for Greater Bombay. SECONDLY : That in the aforesaid respective capacity and during the aforesaid period and at the same place in order to achieve the object of the aforesaid conspiracy and in furtherance of the common intention of you Accused Nos. 1 and 2 both, forgery of a valuable security, to wit, acknowledgment receipt (Ex. C) together with the list of machinery (Ex. D), was made by detaching the acknowledgment receipt dated 8-1-1944 page (Ex. C) from the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that you both thereby committed an offence punishable under Section 420 read with Section 120B and/or Section 34 of the Indian Penal Code and within the cognizance of the Court of Session for Greater Bombay. The charge to the jury is an elaborate document covering about 117 printed pages. We will have occasion to revert to it in the course of our judgment. The learned Sessions Judge accepted the verdict of the jury and convicted the accused as follows : The accused No. 1 was convicted of the offence punishable under Section 417, read with Sections 511 and 34, Indian Penal Code, and sentenced to suffer rigorous imprisonment for six months; he was also convicted under Section 471-467, read with Section 34, Indian Penal Code, and sentenced to suffer rigorous imprisonment for three years. The accused No. 2 was convicted of the offence under Section 417, read with Sections 511 and 34, Indian Penal Code, and sentenced to suffer rigorous imprisonment for six months; he was also convicted of the offence under Section 467, read with Section 109, Indian Penal Code, and sentenced to suffer rigorous imprisonment for three years; and he was further convicted under Section 471-467, read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al irregularities. We are satisfied that there was at least one clear misdirection in the charge to the jury which really vitiated the entire charge. One Mrs. Bapasola filed a complaint before Superintendent Sen, and it is marked as Ex. Z. 26. It is a lengthy document giving the alleged antecedents of the first accused ranging over a period from 1936 to 1949. Therein the first accused was represented to be a notorious swindler and as one who had amassed a large fortune by fraud and black-marketing. Most of the statements contained therein were entirely irrelevant to the charges made against the accused. Any jury would be prejudiced if the document was read to them. The learned Sessions Judge in his charge has read to the jury portions of the said exhibit, which he described as relevant portions of the document. What he read to the jury contained allegations to the effect that accused No. 1 had obtained contracts from the Royal Air Force and the Royal Navy by improper means and the huge amounts swindled were utilised by him in opening several new concerns. Relevant portions also consisted of allegations that the said accused committed fraud on the Government of India through his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion recorded under Section 154 of the Cr. P. C. It is an information given to a police officer relating to the commission of an offence. It is also an information given by an informant on which the investigation is commenced. It must be distinguished from information received after the commencement of the investigation which is covered by Sections 161 and 162 of the Cr. P. C. It is well-settled that the first information report is not substantive evidence, but can only be used to corroborate or contradict the evidence of the informant given in court or to impeach his credit. It follows that a Judge cannot place such a report before the jury as substantive evidence, but can only refer to that portion of it which had been used for one or other of the aforesaid purposes. 8. In this case, the learned Sessions Judge found that Ex. Z. 26 was not a first information report, as it was not the first complaint Mrs. Bapasola made to the police. If it was not the first information report, it was hit by Sections 161 and 162 of the Cr. P. C. and the learned Judge should not have relied upon it except to the extent permitted by the proviso to Section 162 of the Cr. P. C., i.e., to contradict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding is such that it shocks the conscience of the Court or by disregard to the forms of legal process or some violation of the principles of natural justice or otherwise substantial and grave injustice has been done . This self-imposed restriction is not lightened, but is only heightened by the fact that the High Court on the basis of the finding of facts acquitted the accused. 12. But as the findings in the present case are halting and, at some places, appear to be inconsistent, and as the admitted and proved circumstances are prima facie indicative of the guilt of the accused rather than their innocence, we have heard the learned counsel at some length on facts to ascertain whether it is one of those exceptional cases where we must deviate from the conventional rule of guidance laid down by this Court. The arguments of the learned counsel and a scrutiny of the records disclose that the conclusions of the learned Judges can be supported on a firmer ground. It is not necessary to apportion blame, but it appears to us that the argument advanced in the High Court and in this Court and the discussion in the address to the jury and also in the judgment of the High Court travell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence in the fourth charge. The relevant words in the first charge are: That you, Rusi Mistri, Accused No. 1, and P. N. S. Ayyar, Accused No. 2, .... to cheat the Government of India by submitting inflated bills based upon depreciation of 10 p.c. allowed by the contract entered into between the Asian Air Associates and the Government of India, calculated upon the value of the machinery bought from Ramdas and Sons shown at a higher figure than was actually paid to them ...... . This clearly shows that the bills referred to in charge 4 are the self-same bills referred to in the first charge i.e., bills presented by the accused to the Government of India. The learned Sessions Judge also understood the charge in the said sense. The learned Sessions Judge in his charge to the jury observed thus: It is further contended for the prosecution that the Asian Air Associates used to prefer bills by calculating depreciation not on the actual price paid to Ramdas and Sons but on the inflated amount, namely, rupees 4,05,001. It is thus that the Asian Air Associates are alleged to have cheated the Government of India by making the Government of India pay them more depreciation than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 10 p.c. Pursuant to the said term, the Company submitted in all 1265 bills. Only three out of them were filed in Court and marked as Exs. W, W1 and Z 29. Exhibit V, the entries in the first page of the Cost Ledger of the Asian Air Associates for the month of January, 1944, shows how the over-head charges were claimed in the bills. No claim was made on the basis of the cost of the materials purchased and shown in the accounts. A claim was made only on a hypothetical basis, namely, four times the labour charges. For instance, Ex. V shows in the column labour ₹ 152-7-0 and the figure corresponding to this in the column over-head is ₹ 609-12-0, which is four times ₹ 152-7-0. Harihar admits in his evidence that the over-head charges included an approximate percentage on the labour charges. He admits that the bills submitted to the Government of India had no direct bearing on actual capital account of depreciation charges. The learned Judges of the High Court on the evidence rightly came to the conclusion that in the bills submitted by the Company 'on-costs charges were calculated at four times the labour charges and, therefore, no amounts were claimed on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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