# ' BAKHSHISH SINGH DHALIWAL v. THE STATE OF PUNJAB

- **Citation:** [1967] 1 S.C.R. 211
- **Court:** Supreme Court of India
- **Decided:** 1966-08-31
- **Case number:** Criminal Appeals Nos. 478 and 479, and 41, 176, 478 and 479of1949
- **Bench:** V. Ramaswami, V. Bhargava, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bakhshish-singh-dhaliwal-v-the-state-of-punjab-3815
- **Pages:** 16

## Headnote

Criminal Proc•dure Code, ss. 233, 234, 197, 342--Joinder of trials
and charges-Joint trial with Government official for whose prosecution.
sanction not obtained-Validity of trial-Examination of accused-Each
item of evidence whether need be put to accused.
Indian Penal Code, ss, 417, 42(}.'._Bills submitted to Government-Dishonestly psssed by Goverlimerot ofjicers--Payment whether results from
Submission of false bill-Offence whether under s. ,417 or s. 420?
Ordinance 29 of 1943-Section 72 of Tenth Schedule to Government
of India Act, 1935-lndia and Burma (Emergency Provisions Act) 194()
(3 & 4 Geo. 6, Ch. 33), s. 1(3)-Punjab Ordinance lll of 1946 s. 3,
sub-s. (3 )-Punjab Act X of 1950--Constitution, continuance and recons~
titution o.J Special Tribunal.
Indian Evidence Act, 1872, s. 35-War Diaries maintained by army
officer-Whether admissible under section.
The appellant, a contractor was tried for offences under s. 420 Indian
Penal Code in respect of false bills submitted by him to the Evacuee
Government of Burma located at Simla fur work done during World War
II. .Ten charges were framed against the appellant and four trials were
held in respect of these charges.
The appellant was convicted by the
Special Tribunal of all the ten charges but the High Court convicted him
only in respect of three.
In appeals to this Court on certificate,
HELD: (i) It could not be said that by sending twenty bills under
one CO\llring letter the appellant had made only one representation. The
claims related to a number of works or supplies of raw materials.
A
·representation in respect of each different work or each different supply
of materials would be a separate and distinct representation from the
ooe relating to another work carried out or supply made. The holding
of four trials in respect of the different representations was therefore in
order. [215 H; 216 DJ
(ii) When one claim was made in respect of supplies to two places
there could be only one charge in r~spect of that claim, and the trial of
such a charge ·with two other charges was therefore proper. [216 GJ
(iii) Tho officers who verified the bogus bills submitted by the appellant could certainly be held guilty of abetting the appellant. But it could
not be said that the payments that were made to the appellant were not
connected with or induced by the representations made by the appellant
himself or in his bills. In fact, it were those representations by the
appellant which ultimately cnlminated in the Government of Burma
parting with the money to satisfy those claims put forward by the appellant. The .finding that the appellant was
guilty of cheating in these
circumstances was fully justified. [217 D-GJ
Mita Prasad v. Emperor, (1920) 18 A.L.J. 371, distinguished.
211
212
SUPREME COURT REPORTS
(1967] I S.C.R.
(iv) In every case where property is delivered by a person cheated,
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there must always b.! a s1age "-·hen the person makes up his
mind
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give the property on accepting the false representations made to him.
lt cannot be said that in such cases the person commiuiog the Offence can
only be triecl for the simple offence of cheating under s. 417 l.P.C. and
cannot he tried under s. 420 because the person cheated parted with
his properly subsequent to making up his mind 10 do so. [21 X BJ
( v) The joint trial of th~ appellant wirh one of the olliC>'rs who
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~anctioned his bills "''as not vitiared bv lack of sanction under s.
197
Cr. P.C. because an officer abetting the offence of cheating by another cannot
be said to be acting y,·ithin the scopC' of his duties as public servanl. [219
DJ
K. Sarwant Singh v. State of P1<njab [1960) 2 S.C.R. 89, relied on.
Suni/ K1<mar Pan/ v. State of We.rt Bengal, A.l.R. 1965 S.C. 706,
distin.guished.
No de novo trial was necessary after the separation of the appellunl's
trial from that of the said officer. So far as the appellant was concerned
the entire trial took place while he was present and the fact that the
officer was jointly tried with hi

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BAKHSHISH SINGH DHALIWAL
v.
THE STATE OF PUNJAB
August 31, 1966
[V. RAMASWAMI, V. BHARGAVA AND RAGHUBAR DAYAL, JJ.j
Criminal Proc•dure Code, ss. 233, 234, 197, 342--Joinder of trials
and charges-Joint trial with Government official for whose prosecution.
sanction not obtained-Validity of trial-Examination of accused-Each
item of evidence whether need be put to accused.
Indian Penal Code, ss, 417, 42(}.'._Bills submitted to Government-Dishonestly psssed by Goverlimerot ofjicers--Payment whether results from
Submission of false bill-Offence whether under s. ,417 or s. 420?
Ordinance 29 of 1943-Section 72 of Tenth Schedule to Government
of India Act, 1935-lndia and Burma (Emergency Provisions Act) 194()
(3 & 4 Geo. 6, Ch. 33), s. 1(3)-Punjab Ordinance lll of 1946 s. 3,
sub-s. (3 )-Punjab Act X of 1950--Constitution, continuance and recons~
titution o.J Special Tribunal.
Indian Evidence Act, 1872, s. 35-War Diaries maintained by army
officer-Whether admissible under section.
The appellant, a contractor was tried for offences under s. 420 Indian
Penal Code in respect of false bills submitted by him to the Evacuee
Government of Burma located at Simla fur work done during World War
II. .Ten charges were framed against the appellant and four trials were
held in respect of these charges.
The appellant was convicted by the
Special Tribunal of all the ten charges but the High Court convicted him
only in respect of three.
In appeals to this Court on certificate,
HELD: (i) It could not be said that by sending twenty bills under
one CO\llring letter the appellant had made only one representation. The
claims related to a number of works or supplies of raw materials.
A
·representation in respect of each different work or each different supply
of materials would be a separate and distinct representation from the
ooe relating to another work carried out or supply made. The holding
of four trials in respect of the different representations was therefore in
order. [215 H; 216 DJ
(ii) When one claim was made in respect of supplies to two places
there could be only one charge in r~spect of that claim, and the trial of
such a charge ·with two other charges was therefore proper. [216 GJ
(iii) Tho officers who verified the bogus bills submitted by the appellant could certainly be held guilty of abetting the appellant. But it could
not be said that the payments that were made to the appellant were not
connected with or induced by the representations made by the appellant
himself or in his bills. In fact, it were those representations by the
appellant which ultimately cnlminated in the Government of Burma
parting with the money to satisfy those claims put forward by the appellant. The .finding that the appellant was
guilty of cheating in these
circumstances was fully justified. [217 D-GJ
Mita Prasad v. Emperor, (1920) 18 A.L.J. 371, distinguished.
211
212
SUPREME COURT REPORTS
(1967] I S.C.R.
(iv) In every case where property is delivered by a person cheated,
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there must always b.! a s1age "-·hen the person makes up his
mind
r.:>
give the property on accepting the false representations made to him.
lt cannot be said that in such cases the person commiuiog the Offence can
only be triecl for the simple offence of cheating under s. 417 l.P.C. and
cannot he tried under s. 420 because the person cheated parted with
his properly subsequent to making up his mind 10 do so. [21 X BJ
( v) The joint trial of th~ appellant wirh one of the olliC>'rs who
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~anctioned his bills "''as not vitiared bv lack of sanction under s.
197
Cr. P.C. because an officer abetting the offence of cheating by another cannot
be said to be acting y,·ithin the scopC' of his duties as public servanl. [219
DJ
K. Sarwant Singh v. State of P1<njab [1960) 2 S.C.R. 89, relied on.
Suni/ K1<mar Pan/ v. State of We.rt Bengal, A.l.R. 1965 S.C. 706,
distin.guished.
No de novo trial was necessary after the separation of the appellunl's
trial from that of the said officer. So far as the appellant was concerned
the entire trial took place while he was present and the fact that the
officer was jointly tried with him for some time did not in any v•ay affect. the
appellunt. [219 G)
(vi) Ordinance 29 of 1943 under which. the Special Tribunal was
constituted did not expire within six months of being is:>.ucd. It was not
affected by the provision to that effect containned in s. 72 of the Ninth
Schedule 10 the Government of India Act, 1935 because the operation
of s. 72 was suspended by s. 1 (3) of the India and Burma (Emergency
Provisions) Act, 1940.
The Ordinance expired, as held
in J.K.
Gas
Plant Manufacturin~ Co. (Ran1pur) Ltd. and Ors. v. The King E1nptror,
on 30-9-1946. Thereafter the Tribunal functioned competently .under the
Punjab Ordinance !JI of 1946 and Punjab Act X of 1950. (220 D, El
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(vii) Under sub-s. (3) of s. '.• of Punjab Ordinar>ee
III all
notifications issued. and all rules made, by the Central Government under
s. 3 sub-s. ( 3) of s. 4 and s. 1 I of the Ordinance of 1943, so far as
they •PP.lied to Tribunals, were to continue in force until superseded
or modified by the Punjab . Government under the Punjab Ordinance.
Consequently, notifications issued by the Central Government under s. 3
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of the Ordinance of I 943 constitu•ing the Special Tribunal could be
superseded or modified by the Punjab Government.
When the Punjab
Government appointed two mcmhers in place of the two original mt'mhers appointed by th~ Ccn1ral Government.
tho former
only
exercised
the powers of modifying the notification issued by the Cen1ral Go\ernmcnr as the order of aopointmcnt amoun.ted to reconstitution of lhe Tribunal already consituted by the Central Government,
During the period
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when there was only one member and the requirement of law was that
the Trihun~l should con.c;ist of three members, no proceeding' v.-ere tnken
by the Tribunal for continuing the trial of the appellant.
It wa< only
rtflcr the app-Jinlment of two other members. includin't the Prec;ident.
that the Tribunal took up the trial.
Further when the Tribunal later on
functioned with one <ingle member, the Jaw had already been altered
by Punjah Act X of 1950 which laid down !hat the Tribunal WM to
consi!it of one memher only. The Tribunal 1hus at each stage v.·as propc:-ly
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constituted and functional competently. [221G-222C]
(viii) The War Diaricc; which had been used in evidence were reconJc;
of official acts and in fact there was specific evidence of v.·itnesses that
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213
these were required to be m.aintained under the rules applicable to the
units of the
army which maintained these
diaries.
The
diaries were
therefore admissible under s. 35 of the Evidence Act as records of official acts and there was no error in admitting them in evidence.
It was not oocessary to put the War Diaries specially to the accused
in his examination under s. 342 Cr. P.C. because that section requires cir~
cumstances appearing in· evidence against the accused and ndt every piece
of evidence in proof of those circumstances to be put to the accused. [224 F;
225 C-El
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
150 and 151, 196 to 199of19@.
Appeals from the judgment and order dated March. 21, 1962
of the Punjab High Cgurt in Criminal Appeals Nos. 478 and 479,
and 41, 176, 478 and 479of1949 respectively.
Hira Lal Sibal, J. C. Ta/war and R. L. Kohli, for the appellant
(in Cr. As Nos. 150 and 151 of 1962) and the respondent (in Cr.
As. Nos. 196 to 199 of 1962).
Purshottam Tricwndas, K. C. Chawla, and R. N. Sachthey, for
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the respondent (in Cr. As. Nos. 150 and 151 of 1962) and the
appellant (in Cr. As. Nos. 196 to 199of1962).
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The Judgment of the Court was delivered by
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Bhargava, J. These six appeals, filed on the basis of certificates
granted by the High Court of Punjab, arise out ~fa single judgment
of that Court, and consequently, they have been heard together.
Two of the appeals Nos. 150 & 151 of 1962 have been brought
up by Bakhshish Singh Dhaliwal (hereinafter referred to as "the
appellant") aganist his convictions on three different charges of cheating under s. 420 of the Indian Penal Code which were upheld by the
High Court. The remai'ling four appeals Nos. 196-199 of I 962 have
bee11 filed by the State of Punjab against the acquittal of the appellant
in respect of offences of cheating on some other counts recorded
by the High Court.
There were all together four trials before a Special Tribunal
originally constituted under Ordinance 29 of 1943. In these four
trials, the appellant was charged for having committed ten different
offences of cheating by making representations to the Government of
Burma and obtaining payments of money to the extent of over Rs.
6 lakhs which included payments in respect of works which had not
been carried out by him as a contractor, though he claimed that
the work had been done and he was entitled to -payment in respect
of those works.
The facts which are relevant for the decision of these appeals
fall under a very short compass. In the year 1942, the Government
of Burma and the Allied Forces operating there were compelled to
leave Burma as a result of the Japanese invasion. For purposes
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SUPREME COURT REPORTS
[ 1967] 1 s.c.R.
of evacuation from Burma and the defence of that country, the Government of Burma and the army had to execute certain works of the
nature of construction of roads, repairs and construction of bridges,
strengthening and repairing of old tracks and converting railway
lines into motor roads.
Some of these works were executed by the
army itself, while others were entrusted to contractors.
After the evacuation, the Government of Burma was located
at Simla.
Due to the disturbed conditions, no exact records were
available of the works done by the various contractors and consequently, in August 1942, the Government of Burma issued an advertisement inviting claims from contractors who had executed
works or had supplied materials in Burma during this period and had
not yet been paid.
The appellant submitted a number of claims in respect of various
works which he claimed had been executed by him as well as for
supply of materials. These claims were in the form of bills and were
in respect of works which ~.e claimed had been carried out under the
instructions of various uni1s of the army.
These bills were sent for
verification to three different Officers, Henderson, Nasse and Karam
Singh; and after their verifkation, payments were made to the appellant in respect of those bills.
In one or two cases, the payments
were only partial; while ir other cases the entire claims as recommended by those officers w"re paid off.
In the case of the ap)ellant, it was found that he had put in
20 claims for various worh alleged to have been done or materials
supplied. Sixteen of these claims aggregated to an amount of
Rs. 16,31,808/ out of which a sum of Rs. 6,87, 173/ was paid by
means of cheques issued by the oflice of the Controller of Military
Accounts working with the Burma Goyernment situated at Kohlapore.
Subsequently, su;picions of the Government of Burma were
aroused concerning many of the claims made by various contractors
including the claims made by the appellant, and it was discovered
that some of the claims were false and bogus. Consequently,
further investigations were made and thereafter the appellant was
prosecuted in respect of ten different charges. Since there were
a number of such cases to be tried, Special Tribunals were constituted by issuing Ordinance No. 29 of 1943; and two of these Tribunals were located at Lahore. The cases against the appellant
were entrusted to one of these Tribunals.
Before the Tribunal, the ten charges aganist the appellant were
given Cases Nos. 21 to 26 and 31 to 34.
Some of these cases were,
however, tried together with the result that ultimately, there were
four trials in which the appellant was tried in respect of these ten
-charges. The Special Tribunal convicted the appellant in respect of
.all the charges; but on appeal, the High Court upheld the conviction
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B. s. DHALIWAL v. PUNJAB (Bhargava; !.)
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in respect of three charges only. These charges were part of charge
No. 21, charge No. 22 and charge No. 26. In respect of the other
charges, the High Court recorded a· finding that the prosecution had
failed to prove beyond all reasonable doubt that the claims put forward by the appellant were bogus and in respect of works not done
by him or materials not supplied by him, so that the appellant was
given the benefit of doubt and acquitted.
The appellant was tried for charges Nos. 21, il2 and 23 in the
one single trial by the Special Tribunal, while charge No. 26 was
the subject-matter of a different trial. His conviction in respect of
part of charge No. 21, charge No. 22 and charge No. 26 having been
upheld by the High Court, the appellant has thus filed two appeals
Nos. 150 & 151/1962 in this Court. He was acquitted of part of
eharge No. 21 and charge No. 23 which were tried together with
charge No. 22 in one trial; and similarly, he has been acquitted of
other charges also in the other three trials. The four State appeals
before us are against these orders of acquittal recorded by the High
Court in respect of the charges which were the subject-matter of
four different trials.
A number of points of law have been argued before us on
behalf of the appellant in the two appeals filed by him. The first
point which was very strenuously pressed was that the appellant
had been very seriously prejudiced by having been tried in four different cases in respect of ten different charges when, in fact, all that
he did was to submit a set of bills together and had not made any
ten different false representations which might have induced the
Burma Government to make payments to him. Our attention was
invited to letter Ext. DR dated 3rd November, 1942, to support
the contention that all the claims put forward by the appellant were
submitted with this letter together and consequently, should be held
to form one single representation.
On behalf of the State, our attention was, however, drawn to the
fact that this letter was found to contain obliteration of the figure 2
before the word "claims", so that this letter really referred to only 2
out of the 20 claims submitted by the appellant; and this submission
is further supported by a· reference to letter Ext. DS in which the
Government acknowledgl:id receipt of only 2 claims when referring
to letter Ext. DR sent by the appellant. The case of the State was
that the various bills containing the 20 claims put forward by the
appellant could not be treated as one single representation.
It appears to us that even if it had been a fact that all these
claims were submitted by the appellant with only one single covering letter, it could not be held that they amounted to one single
false representation. The claims related to a number of works or
supplies of materials which the appellant claimed he had carried
out. A representation in respect of each different work or each
216
SUPREME COURT REPORTS
[1967] l S.C.R.
different supply of materials would be :i separate and distinct representation from the one relating to another work carried out or supply
made .. Thus, in one trial which covered charges 21, 22 and 23,
three different charges were framed by the Tribunal. The first
charge related to conversion of railway track between Taungdwingyi
and Kyaukpadaung as well as supply of materials at those places.
The second charge which related to charge No. 22 was in respect of
work claimed to have been done in connection with the improvement
of a country track from Myothit northwards to its junction with the
main trunk road between Kyaukapadaung and Meiktila, while the
third charge relating to charge No. 23 was in respect of materials
claimed to have been supplied at Allanmyo. The three charges
thus framed related to works or supplies at three different places
and were in respect of three claims each of which was totally independent of the other. In respect of each of these charges. claims had
been submitted by the appellant and those claims amounted to
representations made by him that he had carried out those works or
had made those supplies. There was consequently no error at all
in holding that in this trial the appellant was being tried for three
different offences of the same kind, so that the splitting of the cases
into ten different charges was fully justified.
Mr. R. L. Anand on behalf of the appellant, in these circumstances, challenged before us the validity of the ca~e in which the
appellant was tried for charges 21, 22 and 23, on a different ground
which had not been put forward before the High Court.
He urged
that an examination of the claim put forward by the appellant on
the basis of which charges 21 and 23 were taken up, would show that
there were in fact three different claims by the appellant; and since
these were tried together with charge No. 22 which had a se(larate
claim, the trial was vitiated as being in respect of four charges of
the same kind which is not permissible in law. The submission
fails, because it is clear from the claim itself that charge No. 21
was really one single charge and not two charges. It was based on
a claim made by the appellant for work done and materials supplied
at the same places, viz., Taungdwingyi and Kyaukpadaung. The
courts below in holding that the representation made by the appellant in his claim in respect of work done and materials supplied
at the same places amounted to one single representation, were
quite correct, so that, in fact, in this trial the appellant was tried in
respect of only three charges on the basis of three false rcspresentations relating to three items of bogus works or supplies.
None of
the trials against the appellant was, therefore, vitiated by any error
relating to misjoinder of charges or splitting up of charges.
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The next question of law raised was that even on t~e facts
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found by the High Court, the appellant was wroi:igly convicted ~
no offence of cheating had been made out against
him. This
submission was based on the circumstance that after the claims,
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which had been found bogus, were put forward by the appellant,
they were sent for verification to various officers and payments
were sanctioned and made to the appellant on the basis of the reports
which were submitted by those officers verifying the claims of the
appellant. The submission was that the payments were the result
not of any representations.made by the appellant, but of the wrong
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representations contained in the reports of those officers, so that if
any offence of cheating at all was committed, it was by those officers
and not by the appellant.
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The fallacy in this argument is quite clear. It is correct that
payments were sanctioned by the Burma Government and were
made only after reports had been obtained from their own officers
on the claims which had been put forward by the appellant; but the
payments were after all made only because the appellant had submitted those claims in the first instance. The representations made
by the appellant in the written claims contained in the bills were
the basis of all subsequent proceedings which resulted in payments
being made to him. These representations contained bogus claims
and orders for payment were based on those very claims. The officers who verified the claims wrongly could certainly be held guilty
of abetting the appellant by supporting his false representations.
It cannot be said that the payments that were made to the appellent
were not connected with or induced by the representations made by
the.appellant himself in his bills. In fact, primarily, it were those
representations by the appellant which ultimately culminated in the
Government of Burma parting with the money to satisfy those claims
put forward by the appellant. The correctness of the decision in
Mata Prasad v. Emperor(') relied upon by learned counsel for the
appellant need not detain us, because the facts in that case were
different and Mata Prasad was found not guilty because he himself
had made no representation at all which induced the payment of
money by the complainant, and the finding was that the advance of
money was induced entirely by the representation made by Hira Lal.
The finding that the appellant was guilty of cheating in these circumstances was fully justified.
In this connection, another point put forward was that the appellant should have been convicted for the offenc~ under s. 417, Indian
Penal Code, instead of s. 420, 1.P.C., because, as soon as written
orders were made sanctioning payments in respect of the. bogus
claims, offences under s. 417 were complete, and the subsequent
payments· made should not have been taken into. account. The
submission has to be rejected, because the subsequent paymentsafter the orders sanctioning the bills, were a part of the same transaction which started with the false representations being made by the
(I) (1920) 18 A. L. J. 371.
Ml4 Sup. Cl/66-IS
218
SUPREME COURT REPORTS
{ 1967] l S.C.R.
appellant in putting forward bogus c'Iairns and which transaction
only concluded after the payments were made and did not come to
an end merely on orders of sanction being passed in those proceedings.
In fact, in every case where property is delivered by a person
cheated, there must always be a stage when the person makes up his
mind to give the property on accepting the false representations
made to him. It cannot be said that in such cases the person committing the offence can only be tried for the simple offence of cheating
under section 417, l.P.C., and cannot be tried under s. 420 because
the person cheated parts with his property subsequent to making up
his mind to do so. The conviction of the appellant for the offence
under s. 420, I. P.C., in these circumstances is in no way vitiated.
The liability of the appellant for conviction for the offence of
cheating was challenged on one other ground. It was urged that
the appellant le~ Burma onl5th April, 1942, while the claims which
had been found to be bogus related, at least to a considerable extent,
to works alleged to have been done or materials alleged to have
been supplied after that date. so that the appellant could have no
per,onal knowledge that the claims put forward by him were bogus.
The finding of fact recorded by the High Court in respect of the
charges for which the appellant has been convicted is that the works
to which the claims related were not carried out at all, or that the
supplies concerned were never made.
Once the finding is categorically recorded in this manner, we do not think there was any
burden placed on the prosecution to establish that the appellant had
personal knowledge of the bogus nature of his claims. Knowledge
involves the state of mind of the appellant and no direct evidence
of that knowledge could possibly be given by the prosecution. The
very fact that the claims were bogus and did not accord with the
true facts, leads to the inference that the appellant knew that the
representations which he was making in these claims were false.
It is significant that the appellant has not come forward with any
explanation that he made these claims on the basis of information
given to him by any particular person whose word he had no reason
to doubt.
In fact, the claims purported to be based on the facts
that the appellant knew that he was entitled to the amounts included in the claims because he had carried out the works or had supplied the materials relating to the claims.
The next point urged was that in this case the trial of the appellant was vitiated, because up to a certain stage he was tried together
with Henderson who was charged with the offence of abetment of
cheating under s. 420 read with s. 109, Indian Penal Code, and
Henderson was put to trial without any sanction of the Central
Government under s. 197 of the Code of Criminal Procedure.
There are two reasons why this ground has no force.
First
t bas already been held by this Court in a very similar case of K.
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II.
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B. s. DHALIWAL v. PUNJAB (Bhargava, J.)
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Satwant Singh v. The State of Punjaq(•) that sanction under s. 197 of
the Code of Criminal Procedure was not required for a valid trial of
Henderson for the offence of abetment of cheating, because it cannot be held that a public servant committing such an offence is acting
in the discharge of his duties as such. In this connection, learned
counsel referred us to a subsequent decision of this Court in
Sunil Kumar Paul v. The State of West Benga/(2) where this Court
held, in the case of a government servant who had submitted a false
bill, that the act of false representation which resulted in the offence
of cheating being completed, was done in the course of his official
duties by that government servant. The facts of that case, however,
were different, because in that case it was held that the submission
of the hill by the governmenl'Servant was itself the act for which he
was to be prosecuted, and that act was held to have been done by
him in the discharge of his duties. In the case before us, as well as
in the earlier case of Satwant Singh('), Henderson was not being
prosecuted for the act of certification of the correctness of the bills
which were sent to him for verification, but was to be prosecuted
for abetment of the offence of cheating committed by those persons
who had submitted the bills by falsely certifying the correctness
of those bills. The act of thus abetting the principal offenders
could not possibly be held. to have been done in the discharge of
official duties as a public servant.
The second reason is that after the trials against the appellant
had proceeded to· some extent, the case against Henderson was
separated and the appellant was tried alone in all the four cases.
The appellant was not a .government servant, but only an independent contractor, and in his case, therefore, there was no question of
any sanction of the Central Government being obtained under s.
197 of the Code of Criminal Procedure. His trials would, therefore
be unaffected by the want of sanction of the Central Government for
the prosecution of Henderson.
In this connection, it was also. urged that after Henderson's
case was separated from that of the appellant, there should have been
a de novo
trial. No reasons
could, however, be advanced
by the learned counsel in support of this proposition. So far as the
appellant is concerned, the entire trial took place while he was present and the case against him remained unaffected by the fact that
during part of the trial, Henderson was also being tried with him
for abetting the offence alleged to have be;en committed by him,
whereas during the remaining part of the trial, he was being tried
alone for ihe offence with which he was charged. There is further
the circum'stances that no request was made for a de novo trial at
any stage by the appellant, and even in the appeals before the· High
Court, no grievance was put forward in this b.elialf.
(I) [1960) 2 S. C. R. 89.
(1) A. I. R. 1965 S. C. 7iJ6.
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(1967] I S.C.R.
The validity of the trials was also challenged before us on the
ground that the Special Tribunal which recorded the convictions
of the appellant was not constituted in accordance with law and was
incompetent to hold the trials. The main submission before us,
which was different from the aspect in which it was argued before the
High Court, was based on the fact that the Special Tribunal was
constituted under Ordinance No. 29 of 1943 which was issued
not under s. 102 of the Government of India, Act, 1935, but under
s. 72 of the Ninth Schedule of that Act. It was urged thats. 72 of the
Government of India Act itself laid down that an Ordinance issued
under that provision was to remain in force for the space of not
more than six months from its promulgation. Learned counsel
on this basis urged that the 6ubseqn~nt Ordinances issued in 1944
and 1945 amending this Ordinance as well as the Punjab Ordinance
III of 1946 which continued the life of the Special Tribunal were all
ineffective, because they purported to continue the existence of a
Tribunal which had already become defunct on the expiry of six
months from 9th September, 1943, the date on which Ordinance
No. 29/1943 was promulgated. The submission was obviously
made under a misapprehension ignoring the effect of s. 1(3) of the
India and Burma (Emergency Provisions) Act, 1940 (3 & 4 Geo.
6, ch. 33) which suspended the operation of the clause in s. 72 of the
Ninth Schedule of the Government of India Act, 1935 under which
the life of the Ordinance was limited to six months from its promulgation. In fact, this point came up before the Federal Court in J. K.
Gas Plant Manufacturing Co. (Rampur) Ltd. & Ors.
v. The King
Emperor(') where the Federal Court held that this very Ordinance
29/1943 expired on 30th September, 1946 in view of the provisions
of s. 1(3) of the India & Burma (Emergency Provisions) Act, 1940.
Until 30-9-1946, therefore, the Tribunal constituted by the Central
Government under that Ordinance was functioning competently.
The Punjab Ordinance Ill of 1946 continuing the powers of
that Tribunal for the purpose of trying the cases pending before it,
came into force on the Isl October, 1946, so that there was no interval and the Tribunal already functioning under the earlier Ordinance 29 of 1943 continued to function validly in accordance with
the provisions of the Punjab Ordinance III of 1946. This Ordinance
was subsequently replaced by Punjab Act X of 19 50, whereby the
life of the Tribunal and its powers were continued, though the membership of the Tribunal was reduced from three to one. The Special
Tribunal which tried the cases against the appellant, therefore, functioned throughout in accordance with the various Ordinances and the
Punjab Act without any interruption
In the alternative, the constitution of the Tribunal which recorded the convictions of the appella!lt was challenged on one other
ground, viz., that at one stage, the membership of the Tribunal, which
(!) {1947] F. C.R. l41.
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under the law was required to consist of three members, was reduced
to only one member and the subsequent appointment of the other
two members was made by the Punjab Government which had no
authority or power vested in it to make such appointment. Under
Ordinance No. 29 of 1943, the power of constituting the Special
Tribunal was vested in the Central Government, and the Central
Government actually appointed a Tribunal consisting of three
members. That Tribunal continued until 30th September 1946 and
thereafter, it functioned by virtue of the provisions of Punjab Ordinance III of 1946. It appears that subsequently some time in the
year 1947, one of the members died and the President of the Tribunal ceased to function on his departure from India. Theri;;after,
two fresh members were appointed by the Punjab Government
to the Tribunal and one of them was appointed to function as the
President of the Tribunal. The point urged on behalf of the appellant was that under Punjab Ordinance III of 1946, the Government
of Punjab did acquire the power of appointing the President, but
that Ordinance did not confer on the Punjab Government the power
to reconstitute the Tribunal or to appoint members of the Tribunal.
This submission was based on the provisions of s. 3(2) of the Punjab
Ordinance which laid down that the provisions of the Ordinance of
1943 were to continue in force and to apply in relation to the Tribunals, except subs. (2) of section I and sub-s. (I) of section 5, subject
to the modification that the powers of the Central Government under
clause (b) of section 3, sub-s. (3) of section 4 and section 11 were,
as from the commencement of the Punjab Ordinance, to be powers
of the Provincial Government. The power of constituting the
Tribunal was contained in the principal clause of s. 3 of the Ordinance
of 1943, and there was no mention of this
principal clause
where, by modification, the powers of the Central Government
were to be exercised by the Punjab Government under s. 3(2) of the
Punjab Ordinance.
This submission, however, ignores the effect of sub-s. (3) of
s. 3 of the Punjab Ordinance, under which all notifications issued,
and all rules made, by the Central Government under s, 3, sub-s.
(3) of s. 4 ands. II of the Ordinance of 1943,so faras they applied to
the Tribunals, were to continue in force until superseded or modified
by the Punjab Government under the Punjab Ordinance. This
provision, thus, clearly laid down that the Punjab Government had
the power to supersede or modify notifications ;ssued and rules
made by the Central Government under s. 3, sub-s. (3) of s. 4 and
s. 11. Consequently, notifications issued by the Central Government under s. 3 of the Ordinance of 1943 constituting the Special
Tribunal could be superseded or modified by the Punjab Government. When the Punjab Government appointed two members in
place of the two original members appointed by the Central Govern.
ment, the former only exereised the powers of modifying the notifica-
222
SUPREME COURT ltEPOllTS
(196 7] l S.C.R.
tion issued by the Central Government as the order of arpointment.
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amounted to reconstitution of the Tribunalalreadyconstituted bythe
Central Government. The order of the Punjab Government wa~.
therefore, passed within the scope of the powers conferred on it by.
sub-s. (3) of s. 3 of the Punjab Ordinance. During the period when
there was only one member and the requirement under the law
was that the Tribunal should consist of three members, no proceedings were taken by the Tribunal for continuing the trial of the
appellant. It was only after the appointment of two other members,
including the President, that the Tribunal took up the trial. Further
when the Tribunal later on functioned with only one single member, the law had already teen altered by Punjab Act X of 1950
which provided for change of composition of the Special Tribunal
and laid down that instead of three members, the Tribunal was to
be composed of one member only. The tribunal, thus, at each stage,
was properly constituted and functioned competently.
The next point urged on behalf of the appellant was that in
these trials, the appellant was not given an adeq:iate opportunity to
produce his defence evidence, and this happened for no fault of
the appellant.
Reference in this connection was made to witnesses
who were in three different countries. Some witnesses were in
Pakistan, some in England, and some in Burma. So far as witnesses
in Pakistan are concerned, the Tribunal recorded an order on 6th
April 1949, refusing to examine those witnesses, because the Pakistan Government was not prepared to even effect service of summons
on persons residing there when the summons were issued by courts
in India. It is significant that subsequent to this order by the Tribunal, the case came before a Bench of the Punjab High Court and
at that stage no grievance was made about non-examination of these
witnesses from Pakistan, even though a grievance was put forward
in respect of witnesses in England and in Burma. The Bench dealt
with the case on 25th September, 1951 and granted the prayer
of the appellant for examination of witnesses in England and Burma. It is now too late for the appellant to make a fresh grievance
in this Court that the witnesses in Pakistan were not examined.
With regard to witnesses in England and Burma, an order was
actually made by the Bench of the High Courtdirccting the Tribunal
to take steps for their examination. Steps were taken and three
witnesses in England were enmined on commission at the instance
of the appellant. The others were given up as they were not available. There has, therefore, been no failure to examine witnesses in
England.
Learned counsel. for the appellant strenuously pressed before
us that the real prejudice to the appellant took place because of
want of examination of the witnesses who were in Burma. Their
examination was refused by the Tribunal at one stage and.against
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B. s. DHALIWAL V. PUNJAB (Bhargava, J.)
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that refusal, the appellant moved the High Court. As we have said
earlier, a Bench of the High Court on the 25th September, 1951,
directed steps to be taken by the Tribunal for their examination.
Subsequently, difficulties arose and from time to time the.appellant
approached the High Court and various orders were made up to the
year 1954. In the year' 1954, commissions were actually issued for
examination of witnesses in Burma to District Magistrates of two
places who were, by common consent of parties, chosen as the persons
before whom those witnesses could be conveniently examined.
The appellant was given a sum of Rs. 3,000/; in order to proceed
to Burma and have the commissions executed in his own presence.
The grievance is that this sum was never actually paid and further
that in any case, adequate funds were not provided for the appellant
to enable him to proceed to Burma in time by air and be present
on the dates fixed for execution of the commissions.
This point came up for a scrutiny before the High Court and
a Bench of the High Court on 23rd August, 1954, held that a sum of
Rs. 3,000/- had already been paid to the appellant for this purpose,
and that there were no further funds available from which additional
payments could be made to the appellant as desired by him. Certain
properties and funds belonging to the appellant were attached under
Ordinance 38 of 1944 which laid down ins. 9 that the District
Judge was to provide, from the attached property in which the applicant claimed an interest, such sums as may be reasonably necessary
for the maintenance of the applicant and his family, and for expenses
connected with the defence of the applicant where ciminal proceedings may have been instituted against him in any Court for a scheduled
offence. Our attention has been drawn to the order of the. District
Judge by which he directed payment of Rs. 3,000/- for expenses
in connection with the examination of witnesses in Burma and by
which he further directed payments in respect of maintenance, etc.
the result of which was that all the funds attached under Ordinance
38/1944 were completely exhausted. The High Court also in its
order dated 23rd August, 1954, found that the funds had already
been exhausted and no further money was available to be paid to
the appellant as desired by him. It cannot, therefore, be held that
there was any refusal on the part of the authorities to provide funds
to which the appellant was entitled. In any case, it appears to us
that all this grievance about non-provision of funds is immaterial
in view of the fact that the appellant himself ultimately withdrew
his request for the examination of those witnesses in Burma. It
appears that in order to enable the appellant to go to Burma, a
passport was obtained for him; but the validity of the passport
expired some time before the date for execution ·of the commission
was fixed.
Consequently, the passport was sent to the appropriate
authorities for further extending its validity. The High Court
bas specifically mentioned in its judgment under appeal that, before
224
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i 1967] I S.C.R.
this passport could be renewed, the appellant \\ithdrew his request
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mission.