# [1974] 1 S.C.R. 737

- **Citation:** [1974] 1 S.C.R. 737
- **Court:** Supreme Court of India
- **Decided:** 1973-09-24
- **Case number:** Criminal Appeals Nos. 60-61 of 1970
- **Bench:** H. R. Khanna, A. Alagiriswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1974-1-s-c-r-737-6024
- **Pages:** 5

## Headnote

Indian Pe11al Code (Act 4~ of 1860), s. 511-Scope of.
The first appellant was an employee in a firm and the second appellant was
a supplier of lime stone to the firm. The procedure in respect of the supply was
that the second appellant would bring four bags of lime stone every day to the
first appellant and present a chalan to him. The first appellant would then send
the chalan to P. W. 2 who would initial it and send it back to the first appellant.
There11pon, the first appellant would put a seal and his signature on it and the
second appellant would present it to the concerned department and receive payment for the supply made.
On complaints that the first appellant was in the
habit of signing the chalan without actually receiving the goods,
P.W.
2 was
asked to make a physical verification.
On the day the verification was
made,
the first appellant, as usual sent the chalan to P.W. 2.
After initialling it,
P.W. 2 verified the stock and not finding the four bags of lime stone questioned'
the two appellants. They were then prosecuted and were convicted for offences
under s. 120B read with s. 420 and s. 511 read with s. 420, J.P.C.
On the question whether there was only a preparation and not an attempt to
cheat,
HEW: Under s. 511, I.P.C., a rerson commits the offence of "attempt to
commit a particular offence" when (1) he intends to con1mit that particular
offence and (ii) he, having made preparations and with the intention of.commit·
ting the offence, does an act towards ds commission : such an act need not be tho
penultimate act towards the commission of that offence but must be an act dur·
ing the course of committing that offence. The provisions of the section differ
from English law in that it is not necessary for the offence under s. 511 that the
transaction commenced must end in the crime, or offencC, if not interruoted.
[740 E-Gl
When the chalan is sent by the first appellant for initials of P.W. 2 the first
appellant takes upon himself the responsibility of assuring P.W. 2 that the lime
stone had been received. In the present case, the chalan had been prepared and
the initials of P.W. 2 obtained.
This is the most important and crucial
step
towards cheating though it is not the penultimate step.
Towards this end both
the accused had co-operated. Therefore, the accused did not stop at the stage of
preparation but had reached the stage of attempt.
[739 B-C, D-E; 740 G-H; 741 A-Bl
Abhaya11a11d Mislira v. State of Bihar, [1962] 2 S.C.R. 241, followed.
[No opinion was expressed on the question of conspiracy as there had been
only a single instance.] [739A]

## Text

737
A
SUDHIR KUMAR MUKHERJEE AND SHAM LAL SHAW
B
c
D
E
F
G
v.
STATE OF WEST BENGAL
September 24, 1973
[H. R. KHANNA AND A. ALAGIRISWAMI, JJ.]
Indian Pe11al Code (Act 4~ of 1860), s. 511-Scope of.
The first appellant was an employee in a firm and the second appellant was
a supplier of lime stone to the firm. The procedure in respect of the supply was
that the second appellant would bring four bags of lime stone every day to the
first appellant and present a chalan to him. The first appellant would then send
the chalan to P. W. 2 who would initial it and send it back to the first appellant.
There11pon, the first appellant would put a seal and his signature on it and the
second appellant would present it to the concerned department and receive payment for the supply made.
On complaints that the first appellant was in the
habit of signing the chalan without actually receiving the goods,
P.W.
2 was
asked to make a physical verification.
On the day the verification was
made,
the first appellant, as usual sent the chalan to P.W. 2.
After initialling it,
P.W. 2 verified the stock and not finding the four bags of lime stone questioned'
the two appellants. They were then prosecuted and were convicted for offences
under s. 120B read with s. 420 and s. 511 read with s. 420, J.P.C.
On the question whether there was only a preparation and not an attempt to
cheat,
HEW: Under s. 511, I.P.C., a rerson commits the offence of "attempt to
commit a particular offence" when (1) he intends to con1mit that particular
offence and (ii) he, having made preparations and with the intention of.commit·
ting the offence, does an act towards ds commission : such an act need not be tho
penultimate act towards the commission of that offence but must be an act dur·
ing the course of committing that offence. The provisions of the section differ
from English law in that it is not necessary for the offence under s. 511 that the
transaction commenced must end in the crime, or offencC, if not interruoted.
[740 E-Gl
When the chalan is sent by the first appellant for initials of P.W. 2 the first
appellant takes upon himself the responsibility of assuring P.W. 2 that the lime
stone had been received. In the present case, the chalan had been prepared and
the initials of P.W. 2 obtained.
This is the most important and crucial
step
towards cheating though it is not the penultimate step.
Towards this end both
the accused had co-operated. Therefore, the accused did not stop at the stage of
preparation but had reached the stage of attempt.
[739 B-C, D-E; 740 G-H; 741 A-Bl
Abhaya11a11d Mislira v. State of Bihar, [1962] 2 S.C.R. 241, followed.
[No opinion was expressed on the question of conspiracy as there had been
only a single instance.] [739A]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeals
Nos.
60-61 of 1970.
Appeal by special leave from the judgment and order dated July
15, 1969 of the Calcutta High Court in Criminal Appeals Nos. 423
and 390 of 1960 respectively.
R. L. Kohli and S. K. Gambhir, for the appellant (in both the
H
appeals).
P. K. Chatterjee and G. S. Chatterjee, for the respondent (in both
the appeals) .
738
SUPREME C:Jl)RT REPOl!.T.S
[ J..97 4 J 1 s.c.R.
The Judgment of the Court was delivered by
ALAGil\:isWAMI, J. 'fhe two appellants were tried before
the
Presidency Magistrate, 4th Court, Calcutta for offenc~s under s. l 20B
read with s.420 and s.511 read with s.420 of the Indian Penal Code.
The learned Presidency Magistrate held them guilty of both the offences
and imposed a sentence of 1 year's imprisonment a~d a fine of Rs. 200
on each of the accused on the first charge and considered that no separate sentence was necessary in respect of the second, an~ th~ a~peals
filed by them in the High-COurt of Calcutta were summarily d1snnssed.
The .facts giving rise to these afpeals are as follows :
Appellant Sudhii: Kumar Mukherjee W3:S an employee in charge of
soda lime department of M/s Gluconate Lmuted, Calcutta. and appellant Sham Lal . Shaw was the supplier of lime stone to the said firm. It
appears that four bags of liine stone were needed every day·
The pro·
cedure in respect of the supply was that Shaw used to· bnng the bags
to Sudhir and present a chalan to him.
Thereupon Sudhir would send
the chalan to P.W. 2, Atdendu Sekhar Goswami, who used to initia1
it and send back to Slldhir.
Thereupon Sudhir would put a seal on it
as also his signature, and. Shaw would present that chalan to the concerned department and receive payment for the
supply made. It
appears that the Managing Director of the company, Amarendra Nath
Haldar, P.W.l had he3Id certain complaints that Sudhir was in the
habit of signing the chalan without actually receiving the goods.
He
therefore asked PW 2 to make a physical verification of the lime stone
to be received on 4-3-1968. On that day Sudhir sent the chalan to
PW 2 for his signature through PW 3.
PW 2 initialled it and after
informing PW 1 about his having initialled the chalan went down to
verify the stock.
As the four bags of lime stone were not there he
asked Sudhir and he stated that the quantity received had been spent.
PW 1 sent for Sudhir and be first told him that the lime stone receiV··
ed bad been used up and :later changed his statement and said that he
might have signed the chalan through mistake.
Shaw was then sent for
by PW 1.
When questioned he denied having received any cbalan or
having made any supply of lime stone on that day.
But when he was
told that h~ v:o.u!d be sent to the police, he produced the chalan which
bore PW 2 s m1bals. It should also be mentioned that PW 5 was also
asked by PW 1 to make a physical verification and to him Sudhir denied
having any knowledge of the matter and Sham Lal Shaw told him that
he bad not supplied any goods on that day. It is on these facts thnt
the prosecution was instituted and the conviction and sentence imPOSed
as mentioned earlier.
-
Sudhir's. contention was that he had been falsely implicated as he
was the Assistant Secretary of the Jabour union.
Shaw contended that
about Rs. 3,000/- was due to him for the supply of lime stone that he
had made a demand for it, that PW 1 asked him to reduce the rate
that ~n 4-3-1968 Sudhir asked him to take back the goods as it was not
requrred and be did so.
A
n
c
D
E
F
G
There is no ~oubt t~at t~e facts as narrated earlier have been amply
H
proved by the ev1d.ence m this case.
The quest.ion therefore is whether
there was a consprracy and whether there was an attempt at cbeatln!J
•
I
A
B
c
D
E
F
G
ll
s. K. MUKHERJEE & S. L. SHAW V. WEST BENGAL
7 39
(A/agi;iswami, J)
or whether as contended on behalf of the appellants there ~as only a
preparation and not an attempt.
In the circumstance.s of this cas~ we
would prefer not to express any opinio':1 on the queshon of co_nsprracy
as there has been only a single instance mvolved.
But we C?nsider that
the -,vidence of attempting to cheat has been amply established.
We
are un3bte to accept the argument on behalf of the appellants that there
was only preparation and not an attempt.
'fhe chalan, Ext. 1 men·
tions that the four bags of lime stone w.ere reCC!ved from ~ham Lal Shaw
and it bears the initials of PW 2.
It 1s established that 1t was the duty
of accused Sudhir after receiving the lime stone to send up the chalan
for PW 2's initials. It means that when the chalan is sent up by
Sudhir for being initialled by P.W. 2, Sudhir takes upon himself the
responsibility of assuring P.W.2 that the lime stone has b~en received.
This practice is spoken to by PWs 1 and ~· . P_Yf 3 gave ev~dence about
having taken the chalan to PW 2 for his 1rubals at the mstance. of
accused Sudhir.
Though his evidence has been held to be unreliable
this 'part of his evidence is corroborated by PW 2's evidence. Though
the subsequent stage of aflixing a stamp to the chalan and signing of it
by accused Sudhir has not been completed that does not make any
difference.
Admittedly qnite a good amount of money was due to
Shaw from the company.
That money could be received only by producing the relevant chalans.
So this chalan also could be produced for
payment after it was stamped and signed by accused Sudhir at his own
leisure.
The most important step of getting PW 2's initials on the
chalan has been carried out and thereafter it was only a matter between
the two accused. In the circumstances the question is whether there
has 'ieen an attempt to cheat or merely a preparation.
The dividing line between a preparation and an attempt is no doubt
very thin, and though the principle involved is well established the djffi.
culty: arises in drawing the line in the particular circumsta.nces of a
case.
The relevant portion of s. 511 is :
"Whoever attempts to commit an offence punishable by
this Code . . . . or to cause such an offence to be committed
and in such attempt does any 'act towards the commission of
the offence, shall, where no express provision is made by this
Code for the punishment of such attempt, be punished."
The law on this point was elaborately discussed with reference to all
the decided cases by this Court in its decision in Abhavanand Mish1a
v. State of Bihar( 1). We will confine ourselves to stating a few relc·
vant extracts therefrom.
It was pointed out in that decision that :
"The moment a person takes some step to deceive the
person sought to be cheated, he has embarked on a course
of conduct wnich is nothillg less than an attempt to commit
the offence as contemplated by s. 511.
He does the act with
the intention to commit the offence and the act is a step towards the commission of the offence."
'fh!l· decision in The Quee11v. Ramsarun Chowbey( 2 ) was 1·eferred to,
3Dd 'tliis Court specifically laid down that the act towards the commission -0f such an offence need not be an act which leadsimlt\ediat~ly_
(l) [19621 (2) S. C. R. 241
(2) (1872) 4 N.W. P. 46'
740
SUPRhME COURT REPORTS
[ 1974 j 1 S.C.R.
to the commission of the offence.
The decision In the mutter of the
petition of R. MacCrea(') was also referred to.
The purport of that
decision was explained to be that s. 511 was not meant to cover only
the penultimate act towards the completion of an offence; acts precedent, if those acts are done in the course of the attempt to commit the
offence, and were done with the intent to commit it and done towards
its commission were also covered. In that decision Knox, J. said :
"Again, the httempt once begun and a criminal act done
in pursuance of it towards the commission of the act artemp·
ted, does not cease to be a criminal attempt, in my opinion,
because the person committing the offence does or may repent
before the attempt is completed."
This Court cited with approval the statement of Blair, J.
"It seems to me that that section (s.511) uses the word
'attempt' in a very large sense; it seems to imply that such an
attempt may be made up of a series of acts, and that any one
of those acts done towards the commission of the offence, that
is, conducive to its commission, is
itself punishable, and
though the act does not use the words, it can mean nothing
but punishable as an attempt. It does not say that the last
act which would form the final part of an attempt in the
larger s.ense is the only act punishable under the section.
It says expressly that whosoever in such attempt, obviously
using the word in the larger sense, does any act, etc., shall be
punishable.
The terni 'any act' excludes the notion that the
final act short of actual commission is alone punishable."
This Court also referred to certain other decisions and pointed out
that any different view expressed has been due to an omission to notice
the fact that the provisions of s. 511 differ from the English Law with
respect to 'attempt to commit an offence', and that it is not necessary
for the offence under s. 511, Indian Penal Code, that the transaction
commenced must end in the crime or offence, if not interrupted.
This
Court finally summarised its views about the construction of s. 511 thus:
"A person commits the offence of
'attempt to commit
a particular offence' when (i)
he
intends to. commit
that particular offence, and (ii) he, having made preparations
and with the intention to commit the offen°", does an act
towards its commission : such an act need not be the penultimate act towards the commission of that offence but must be
an act during the course of committing that offence."
With respect we concur in this view. In the present case the chalan
has been prepared and the initials _of P.W. 2 obtained· That js most
important and crucial step towarils cbi:ating. Towards this eqd both the
accused have cooperated. 'Thereafter it only remained for the appellant
Sudhir to llffilt the stamp and put bis ~ture. Accused ShJw llQllld
then have presented it to the company's offiee and received pa~t. This
(I) T. L. R. IS All. 173.
A
B
c
D
E
F
G
H
B
S. K. MUKHERJEE & S. L. SHAW V. WEST BENGAL
7 4 l
(Alagiriswami, J)
is a definite step towards the commission of the offence of cheating
though it is not the penultimate step. We hold that the acts of the
accused did not stop at the stage of preparation but had reached the
stage of attempt. We, therefore, uphold the conviction of the appellants
under s. 511 read with s. 420 l.P.C. The appeals are disposed of
accordingly.
It is however stated that the appellants ha.ve already suffered the
sentence' imposed' by the Presidency Magistrate and it is not necessary
to say or do anything fUrther about it.
V.P.S.