# [1967] 1 S.C.R. 595

- **Citation:** [1967] 1 S.C.R. 595
- **Court:** Supreme Court of India
- **Decided:** 1966-09-27
- **Bench:** V. Ramaswami, V. Bhargava, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1967-1-s-c-r-595-3886
- **Pages:** 7

## Headnote

c
D
r
H
Code of Criminal Procedure, s. 23.2-Indian Penal Code s. 1208Trial for conspiracy-Lic-ences issued to bogus firms-Eight such licences
issued-Whether one conspz'racy or eight conspiracies-Charge.
Indian Evidence Act, ss. 45 and 114--Specimen
writing of accused
obtained but not. sent to hand-writing
expert--Court whether can con ...
sider possible reasons for not sending the same, apart from explanation
given by investigliting officer-Adverse inference whether may be ·drawn
against prosecution.
The appellant \Vas tried and convicted along with certain others under
s. 120-B read with ss. 409 and 5(2) read withs. 5(l)(d) of the Prevention of Corruption Act. The accused
were
alleged_, in pursuance of a
conspiracy, to have arranged the issue of a number of licences for the
import of motor vehicles and motor vehicle parts, to a number of com~
panies which had no existence.
Against the appellant the specific allegation was that he had received the delivery by post of two such licences
and had signed the acknowledgment ·receipt. The appellant along with
others was convicted by the trial court, and his conviction -having been
upheld by the High Court, he came to this Court by special leave.
The material questions
that came up for consideratioft were : ( 1)
whether the charge at the trial was not defective -since it mentioned only
one conspiracy for the issue of all the licences whereas eight licences had
been issued and · there were therefore eight conspiracies; (2) whether
the High· Court was right in taking into account reasons other than tho~
given by the investigating officer as an explanation of his failure to send
the specimen handwriting of the appellant' to the handwriting :expert for
opinion.
HELD : (i)
The charge of conspiracy was not that the conspiracy
was entered into with each bogus individual firm for the benefit of that
firm alone in connection \Vith the issue of licences to that particular firm.
The charge was that out of the profits made from acts done in furtherance of the conspiracy, all the persons in the conspiracy were to bendit.
[598 13-C]
The. conspiracy was a general conspiracy to keep on issuing licences
in the names of fi~titious firms and to share the benefits arising out of
those licences when no real independent person was the licensee.
The
various members of the conspiracy other than the two public servants
must have joined \vith the full knowledge of the modus operandi of the
conspiracy and with the intention and object of sharing the profits arising out of the acts of the conspirators. It could not therefore be said
that the mere fact that licences were issued in the names of eight different companies 'makes out the case against the appellant and the other
conspirators to be a case of eight different conspiracies each with respect
to the licenc"" issued to one particular fictitious company.
[598 DJ
R. v. Griffiths, [1965] 2 All E.R. 448, distinguished.
(iiJ The High Court could not be said to have been in erro·r· in considering other reasons besides those given by the investigating officer ;'nd
596
SUPllEMI! COUl.T
IBPOllTS
(1967] I S.C.Jl.
holding that no adverse inference could be drawn against the prosecution
from the fact that the opinion of the handwritin~ expert h>d not been
obtained with re<pect to the acknowledgment receipt.
(600 CJ
Further, an adverse inference against
the prosecution can be drawn
onty if it withholds certain· evidence and not merely
on account of its
failure to obtain certain evidence.
When no such evidence has been obtained. it c-Jnnot be said what that evidence would have been and the"'-
fore no question of presuming that the evidence would have been against
the prosecution under s. 114, illustration (g) of the
Evidence
Act can
arise. [600 D-E]
CRIMl~AL APPELLATE JURISOICTIO!'< : Criminal Appeal No. 184
of 1964.
Appeal by special leave from the judgment and order dated
July 16, 1964 of the Bombay High Court in Criminal Appeal
No. 1858 of 1962.
R. Jethamalani and P.

## Text

SRICHAND K. KHETW ANI
V.·
STATE OF MAHARASHTRA
September 27, 1966
B
[V. RAMASWAMI, V. BHARGAVA AND RAGHUBAR DAYAL, JJ.j
c
D
r
H
Code of Criminal Procedure, s. 23.2-Indian Penal Code s. 1208Trial for conspiracy-Lic-ences issued to bogus firms-Eight such licences
issued-Whether one conspz'racy or eight conspiracies-Charge.
Indian Evidence Act, ss. 45 and 114--Specimen
writing of accused
obtained but not. sent to hand-writing
expert--Court whether can con ...
sider possible reasons for not sending the same, apart from explanation
given by investigliting officer-Adverse inference whether may be ·drawn
against prosecution.
The appellant \Vas tried and convicted along with certain others under
s. 120-B read with ss. 409 and 5(2) read withs. 5(l)(d) of the Prevention of Corruption Act. The accused
were
alleged_, in pursuance of a
conspiracy, to have arranged the issue of a number of licences for the
import of motor vehicles and motor vehicle parts, to a number of com~
panies which had no existence.
Against the appellant the specific allegation was that he had received the delivery by post of two such licences
and had signed the acknowledgment ·receipt. The appellant along with
others was convicted by the trial court, and his conviction -having been
upheld by the High Court, he came to this Court by special leave.
The material questions
that came up for consideratioft were : ( 1)
whether the charge at the trial was not defective -since it mentioned only
one conspiracy for the issue of all the licences whereas eight licences had
been issued and · there were therefore eight conspiracies; (2) whether
the High· Court was right in taking into account reasons other than tho~
given by the investigating officer as an explanation of his failure to send
the specimen handwriting of the appellant' to the handwriting :expert for
opinion.
HELD : (i)
The charge of conspiracy was not that the conspiracy
was entered into with each bogus individual firm for the benefit of that
firm alone in connection \Vith the issue of licences to that particular firm.
The charge was that out of the profits made from acts done in furtherance of the conspiracy, all the persons in the conspiracy were to bendit.
[598 13-C]
The. conspiracy was a general conspiracy to keep on issuing licences
in the names of fi~titious firms and to share the benefits arising out of
those licences when no real independent person was the licensee.
The
various members of the conspiracy other than the two public servants
must have joined \vith the full knowledge of the modus operandi of the
conspiracy and with the intention and object of sharing the profits arising out of the acts of the conspirators. It could not therefore be said
that the mere fact that licences were issued in the names of eight different companies 'makes out the case against the appellant and the other
conspirators to be a case of eight different conspiracies each with respect
to the licenc"" issued to one particular fictitious company.
[598 DJ
R. v. Griffiths, [1965] 2 All E.R. 448, distinguished.
(iiJ The High Court could not be said to have been in erro·r· in considering other reasons besides those given by the investigating officer ;'nd
596
SUPllEMI! COUl.T
IBPOllTS
(1967] I S.C.Jl.
holding that no adverse inference could be drawn against the prosecution
from the fact that the opinion of the handwritin~ expert h>d not been
obtained with re<pect to the acknowledgment receipt.
(600 CJ
Further, an adverse inference against
the prosecution can be drawn
onty if it withholds certain· evidence and not merely
on account of its
failure to obtain certain evidence.
When no such evidence has been obtained. it c-Jnnot be said what that evidence would have been and the"'-
fore no question of presuming that the evidence would have been against
the prosecution under s. 114, illustration (g) of the
Evidence
Act can
arise. [600 D-E]
CRIMl~AL APPELLATE JURISOICTIO!'< : Criminal Appeal No. 184
of 1964.
Appeal by special leave from the judgment and order dated
July 16, 1964 of the Bombay High Court in Criminal Appeal
No. 1858 of 1962.
R. Jethamalani and P. Kapila. lfi11gora11i, for the appellant.
O. P. Rana and B. R. G. K. Achar, for the respondent.
The Judgment of the Court was delivered by
Ragbuhar Dayal, J. A. G. Nelson, Assistant Controller of
Imports, f'..H.
Shingrani, Upper Division Clerk
in the Quota
Licensing Section of the Office of the Joint Chief Controller of
Imports and Exports,
Bombay, Shrichand Khetwani appellant,
and Ramshankar Ramayan Bhargnva, were tried of an offence
punishable under s. 120-8 read with s. 409 l.P.C. and s. 5(2) read
withs. ·5(1) (d) of the Prevention of Corruption Act. They were all
convicted by the trial Court. On appeal, the High Court acquitted
Bhargava and dismissed the appeals of the other three persons.
The present appeal is by Khetwani, by special leave. The other two
convicted persons have not appealed.
It may be mentioned here that the prosecution case is that in
pursuance of the conspiracy, a number of licences in the name of
several companies which had no existence were prerared, that some
of these were actually issued and that two of those licences issued
were in the name of M.L. Trading Co., Bombay, and were delivered
o the appellant by Pr-Jbhakar Karmik, P.W. 20. a postman, on
.vlay 15, 1959.
The appellant denied having received any such
licences and to have conspired with Nelson and Shipgrani. The
Courts below relied on the statement of Karmik and found that the
appellant received. the licences issued in the name of the fictitious
firm, M.L.Trading Co., and that therefore the appellant was a
member of the conspiracy with which he was charged.
The correctness of the conviction of the appellant has been
questioned by learned counsel on the following grounds ..
B
c
•
D
E
F
G
H
s. K. KHETWANI V. MAHARASHTRA (Dayal, J.)
597
I. The charge of conspiracy framed against the appellant was a charge of a single conspiracy while the facts
proved establish the existence of not only a single conspiracy but of at lellSt eight conspiracies, each single conspiracy being related to the issue of licences to one particular
company. The charge of conspiracy as laid is therefore
B
not established.
c
D
E
F
G
ii
2. Karmik, P.W.20, was an accomplice on account of
the circumstances urged, but the High Court misread
the evidence by stating that there was a state of intimate
relationship between the appellant and Karmik.
3. The hand-writing expert should have been.examined
to prove that the endorsemen: on the postal receipt was in
the handwriting of the appellant, especially when · the investigating officer had obtained specimen writings of the
appellant. The High Court considered certain circumstances in justification of the failure of obtaining the opinion
of the hand-writing expert in addition to such explanation
which the investigating officer had given.
4. The High Court sought corroboration of the statement of Karmik from a single circumstance for which there
was no evidence and which was not put to the accused when
examined under s. 342 Cr. P.C.
We may now set out the charge in so far as it concerns
the appellant:
"That, during May 1959, you accused No.I A:G. Nelson, .... , accused No. 2 P. H. Shingrani, .... , ·you accused
No. 3 Shrichand Keshuram Khetwani and you accused
No. 4 Ramshankar Ramayyan Bhargawa were parties with
other unknown persons to a criminal. conspiracy, by
agreeing to do or cause to be done illegal acts, to wit, to
abuse the official positions of yourselves viz., 'you accused
No. 1 A.G. Nelson and you accused No. 2 P, H. Shingrani
by corrupt or illegal means or otherwise to have import
licences for Motor ·Vehicle parts and specified items of
Motor Vehicles parts issued in the names of bogus or unknown applicants on the basis of false numbers of quota
certificates, which were "ever produced with applications,
by misusing, for the said purpose, import licence forms
from out of Import Licence Books in the custody of you,
accused No. 1, kG. Nelson, and thereby to obtain pecuniary
advantage to all of .you and/or the said unknown persons, and
thereby committed an offence punishable
under section 120-B I.P.C. read with section 5(2) read with
s. 5(1) (d) of the Prevention of Corruption Act and read
with section 409 I.P.C. and within my cognizance."
598
SUPREME
COURT
llEPORTS
(I %7] I S.C.R.
The charge, as framed, describes the conspiracy to be the agreeing
of the various persons, including persons not put on trial, to do or
cause to be done, illegal acts.
The acts to be done were the abuse
of the official positions of Nelson and Shingrani for the issue of
import licences in the names of b(lgus or unknown applicants on
the basis of false particulars etc., and the object of conspiring to
do such acts by the persons in the conspiracy charged or not charged was to obtain pecuniary advantage. The charge of conspiracy
was not that the conspiracy was entered into with each bogus individual firm for the benefit of that firm alone in connection with the
issue of licences to that particular firm.
The charge was that out
of the profits made from acts done in furtherance of the conspiracy, all the persons in the conspiracy were to benefit.
The finding that the various firms to whom licences were issued
were fictitious is not questioned. The conspiracy was a general
·conspiracy to keep on issuing licences in the names of fictitious
firms and to share the benefits arising out of those licences when
no real independent person was the licensee. The various members
of the conspiracy other than the two public servants must have
joined with the full knowledge of the modus operm•di of the conspiracy and with the
intention and object of sharing the profits
arising out of the acts of the conspirators.
We do not therefore sec
that the mere fact that licences were issued in the n.ames of eight
different companies make out the case against the appellam and
the other conspirators to be a case of eight different conspiracies
each with respect to the licences issued to one particular fictitious
company.
Great reliance is placed on the case reported as R. v. Griffiths,(')
in support of the contention that the facts established make out the
case of eight conspiracies instead of the single conspiracy charged.
That case is very much different. In that case, a supplier of lime
and his book-keeper and various individual farmers were charged
with conspiring to commit fraud and obtain money by false pretences from the Ministry of Agriculture and Fisheries and Food on
account of lime subsidy. It was established that there was link as
between one farmer and another. None of them was in contact
with another.
Neither was any farmer shown to have known that
any other of the farmers was contracting for the supply of lime
by the supplier. It was, in these circumstances, that it was held
that to constitute one conspiracy between all the farmers and the
supplier of lime there had to be evidence from which it could be
inferred that each farmer knew that there was or was coming into
existence a scheme to which he attached himself to which there were
other parties and which went beyond the act that he agreed to do so
that all would be shown to have been acting in pursuance of the
--- ·---- -
--
(I) [1965] 2 All. E.R. 448.
A
B
c
D
E
F
G
H
A
B
c
D
S. K. KHETWANI V. MAHARASHTRA (Dayal, J.)
599
common criminal purpose and that therefore there was no evidence
of conspiracy between all farmers as distinct from evidence of a
number of separate conspiracies between the supplier of lime, his
book-keeper and one or other of the farmers. The farmers were
genuine persons in that case. Each farmer approached the
supplier of lime and happened to be a party to the fraud committed
in regard to the supply of lime to him. In the instant case, there is
no such genuine independent company which directly approached
the two public servants for its own benefit. Whoever posed for
the purpose of the receipt of the licences and for utilising them
were those who posed on account of the full knowledge of the
conspiracy. It is not possible to believe that one without such
knowledge would have posed, for a fictitious firm. We are therefore of opinion that this case does not fit in with the facts of the
present case and that .the contention for the appellant that the charge
as framed is wrong is not sound.
The High Court has given good reasons for holding that Karmik
is not an accomplice. He was a public servant. He simply delivered the registered envelope to the appellant on being told by him
~ day or so earlier that he would be getting some registered cover
m the name of M.L. Trading Co., and that it be delivered to
him. It is .in his statement that he had been delivering letters to
the l\ppellant for a few years previously. He has deposed:
"I knew the accused No. 3 for a long time before I delivered
E
the registered cover to him. I do not think it necessary to obtain any
attestation for his signatures."
The High Court cannot therefore be said to have misread the
evidence when it expressed that Karinik knew the appellant rather
intimately, as Karmik's statement about knowing the appellant
and delivering letters to him in the past had not been chaJlenged.
F
The intimacy referred to was on account of contacts which Karmik
had with the appellant in the discharge of his duty iis a postal
peon.
Karrnik's statement that the appellant had' written the endorse-
~ent on the postal receipt has been accepted by the High Court. It
rs not necessary to examine an handwriting expert in every case of
G
disputed writing.
The investigating officer stated that he did
not send the specimen writing of the appellant for comparison with
the endorsement on the postal receipt as he could not secure admitted
writings of the appellant tho1,1gh he tried his best to obtain his
admitted handwritings. He was not further questioned to explain
why he considered it necessary to have admitted writings of the
H
appellant in order to obtain the opinion of the handwriting expert
about the disputed writing when specimen writings of the appellant
were available. The. explanation of the investigating officer seems
to have been on account of practice. It appears from his statement
Ml6Sup.C.I./66-10
600
IUPl.BIO! OOUllT
llBPOl.1'3
(1967) I S.C.R
that he sent certain questioned
documents along with the
admitted
handwritings and specimen handwritings, signatures
and initials of accused Nos. I and 2 to the Government Examiner
of questioned documents. . The practice may be sound or not but
the bona jides of the conduct of the investigating officer cannot be
questioned. The High Court, however, further considered that
the material provided "by the writing on the acknowledgement
(eceipt was very scanty and the investigating officer might have
felt that the subsequent handwriting would be feigned or disguised
and that any comparison with the same would be deceptive. Such
considerations might have been in the mind of the investigating
officer but he had not stated them to be his reasons for not obtaining
the opinion of the handwriting expert. The High Court cannot be
said to have been in error in talcing these further reasons into consideration and holding that no adverse inference can be drawn against
·the prosecution from the fact that the opinion of the handwriting
expert has not been obtained with respect to the endorsement on the
acknowledgment receipt.
Further, an adverse inference against the prosecution can be
drawn only if it withholds certain evidence and not merely on account of its failure to obtain certain evidence. When no such
evidence has been obtained, it cannot be said what that evidence
would have been and therefore no question of presuming that
that evidence would have been against the prosecution, under s. 114,
illustration (g) of the Evidence Act, can arise.
When Karmik is not held to be an accomplice, no question of
corroboration of his evidence arises once the Court believes his
statement. The High Court believed Karmik and expressed the
opinion:
"On the whole we feel that Karmik is an independent
and disinterested witness. There is no reason why Karmik
should have perjured himself to implicate an innocent
person."
It is after arriving at this opinion that the High Court observed
that Karmik's evidence received indirect corroboration from the
subsequent conduct of the appellant. Such conduct is said to be
that the appellant waited for three or four days before approaching
the Joint Chief Controller, after receiving the letter of Mishra
a_sking him to meet the Joint Chief Controller the same evening or
the next day. The accused was certainly not questioned about the
reason for his not meeting the Joint Chief Controller promptly.
The delay need not therefore be attributed to his guilty conscience
and cannot be taken to be any corroboration of the statement of
A
B
c
D
E
F
G
H
S. K. KHl!TWANI v. MAHARASHTllA (Dayal, /.)
601
A
Karmik. This, however,. does not affect the case against the appellant when Karmik's statement is believed and requires no corroboration.
The result is that the conviction of the appellant is correct.
':.
We therefore dismiss the appeal.
8
G.C.
Appeal dismissed.
·-