# CHANDI PRASAD SINGH v. THE ST ATE OF UTT AR PRADESH

- **Citation:** [1955] 2 S.C.R. 1035
- **Court:** Supreme Court of India
- **Decided:** 1954-03-23
- **Case number:** Criminal Appeal No. 143 of 1954
- **Bench:** VIVIAN Bos£, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chandi-prasad-singh-v-the-st-ate-of-utt-ar-pradesh-1230
- **Pages:** 8

## Headnote

Trial before Sessions Tudge for an offence under s. 409, l.P.l.
with the aid of asses;·ors for misappropriating certain sums of money
from three different persons-Received by appellant as Secretary of a
Company-And for an offence under s. 477-A, l.P.C. for falsifyi11t a
minute book-With the aid of Turv-Same persons acting as assessors
and iurors-V ~rdict of not guilty in respect of both charges-Disagreement with verdict of jury under s. 477-A and reference to the
High Court under s. 307 of the Code of Criminal Procedure-Dis11greement with the opinion of assessors under s. 409 and conviction of
accused-Appeal to the High Court-Appeal and reference both heard
together and disposed of by one judgment by High Court-Sessions
Tudge whether contravened any provision of law or committed illegality in acttnf!; as he did-Appellant's status-Whether that of a servant 01· tnat of an age11t--S::.'·11ant and agent-Distinction betweenAppellant charged with three offences under s. 409, l.P.C. and one offence under s. 477-A; l.P.C.-Whether contravention of s. 234 of the
Code of Criminal Procedurc-S. 255 of the Code of Criminal Procedure-Applicability of.
The appellant was tried bv the Sessions Judge with the aid
of
assessors tor an offence under s. 409, I.P.C. for misappropriating certain sums of money recei·;ed as promoter of a Company from three
different persons for the purpose of allotment of shares and omitted
to be brought into the Company after it was formed, and also for an
oflence under s. 477-A, I.P.C. by
the same Sessions Judge with the
aid of a jury for the offence of falsifying a minute hook, the same
persons acting both as assessors and jurors. They rc~urned a ve1 Jict
of not guilty in respect of both the charges. The Sessions Judge, disagreeing with the verdict of the jury under s. 477-A, referred
the
matter to the High Court under s. 307 of the Code of Criminal Procedure. .Disagreeing also with the opinion of the assessors in respect
of the charge under s. 409, I.P.C. he held the appellant guilty and
sentenced him to 4 years' regorous imprisonment. Against this conviction the appellant appealed to the High Court. Both the reference
under s. 307 of the Code of Criminal Procedure and the appeal were
heard togethef by the High Court. which confirmed the appellant's
conviction under s. 409 and the sePtence passed by the Sessions
Judge and disagreeing with the veidict of the jury it held him guilty
under s. 477-A and sentenced him to two years' rigorous imprisonment. Oil appeal by special leave to the Supreme Court :-
-
Held (i) that the contention that when the Sessions Judge disagreed with the verdict of the jury and the opinion ot the assessors,
l l-3'i S. C. Ind a/59
1955
Dee1mber7.
1955
Ci1a:1di PrastSd
Singh
v.
Ti1t State of
Uttar Prad•sh
1036
SUPREME COURT REPORTS
[ 1955 i
he shoul<l have referred the \Vhole case under s. 301 of the Code of
Criminal Procedure to the High Co!1rt and not merely that part ot
it \\'hich related to the charge under s. 477-A, l.P.C. was without
force
because the Sessions judge had contravened no provision of
law and committed no illegality
in deciding the case which related
to the charge under s. 409, l.P.C. That s. 307, Code of Criminal Pmcedure appiies in terms
only to trials by a jury
and the Sessions
Judge had no po\ver under that section to refer cases tried with the
aid of a:;sessors for the decision ot the High Court. In the present
case there \VJS the further fact that both the appeal against the conviction under s. 409, LP.C. and the r:.:ference under s. 307 of the Code
of Criminal Procedure in n::spect of the charge under s. 477-A WC'I?
disposed of by the same judgment ;
(ii) that the contention
that
the appellant's true status was
that of a serv;.i.nt and not that of= an agent and that he should have
been tried not under s. 409, l.P.C. but under s. 408, I.P.C. ·was also
without force inasmuch as his status \Vas that of an agent and not
that of a servant in view of his duties as Secretary

## Text

2 S.C.R.
SUPREME COURT REPORTS
1035
CHAND! PRASAD SINGH
v.
THE ST ATE OF UTT AR PRADESH.
[VIVIAN Bos£ and VENKATARAMA AYYAR JJ.]
Trial before Sessions Tudge for an offence under s. 409, l.P.l.
with the aid of asses;·ors for misappropriating certain sums of money
from three different persons-Received by appellant as Secretary of a
Company-And for an offence under s. 477-A, l.P.C. for falsifyi11t a
minute book-With the aid of Turv-Same persons acting as assessors
and iurors-V ~rdict of not guilty in respect of both charges-Disagreement with verdict of jury under s. 477-A and reference to the
High Court under s. 307 of the Code of Criminal Procedure-Dis11greement with the opinion of assessors under s. 409 and conviction of
accused-Appeal to the High Court-Appeal and reference both heard
together and disposed of by one judgment by High Court-Sessions
Tudge whether contravened any provision of law or committed illegality in acttnf!; as he did-Appellant's status-Whether that of a servant 01· tnat of an age11t--S::.'·11ant and agent-Distinction betweenAppellant charged with three offences under s. 409, l.P.C. and one offence under s. 477-A; l.P.C.-Whether contravention of s. 234 of the
Code of Criminal Procedurc-S. 255 of the Code of Criminal Procedure-Applicability of.
The appellant was tried bv the Sessions Judge with the aid
of
assessors tor an offence under s. 409, I.P.C. for misappropriating certain sums of money recei·;ed as promoter of a Company from three
different persons for the purpose of allotment of shares and omitted
to be brought into the Company after it was formed, and also for an
oflence under s. 477-A, I.P.C. by
the same Sessions Judge with the
aid of a jury for the offence of falsifying a minute hook, the same
persons acting both as assessors and jurors. They rc~urned a ve1 Jict
of not guilty in respect of both the charges. The Sessions Judge, disagreeing with the verdict of the jury under s. 477-A, referred
the
matter to the High Court under s. 307 of the Code of Criminal Procedure. .Disagreeing also with the opinion of the assessors in respect
of the charge under s. 409, I.P.C. he held the appellant guilty and
sentenced him to 4 years' regorous imprisonment. Against this conviction the appellant appealed to the High Court. Both the reference
under s. 307 of the Code of Criminal Procedure and the appeal were
heard togethef by the High Court. which confirmed the appellant's
conviction under s. 409 and the sePtence passed by the Sessions
Judge and disagreeing with the veidict of the jury it held him guilty
under s. 477-A and sentenced him to two years' rigorous imprisonment. Oil appeal by special leave to the Supreme Court :-
-
Held (i) that the contention that when the Sessions Judge disagreed with the verdict of the jury and the opinion ot the assessors,
l l-3'i S. C. Ind a/59
1955
Dee1mber7.
1955
Ci1a:1di PrastSd
Singh
v.
Ti1t State of
Uttar Prad•sh
1036
SUPREME COURT REPORTS
[ 1955 i
he shoul<l have referred the \Vhole case under s. 301 of the Code of
Criminal Procedure to the High Co!1rt and not merely that part ot
it \\'hich related to the charge under s. 477-A, l.P.C. was without
force
because the Sessions judge had contravened no provision of
law and committed no illegality
in deciding the case which related
to the charge under s. 409, l.P.C. That s. 307, Code of Criminal Pmcedure appiies in terms
only to trials by a jury
and the Sessions
Judge had no po\ver under that section to refer cases tried with the
aid of a:;sessors for the decision ot the High Court. In the present
case there \VJS the further fact that both the appeal against the conviction under s. 409, LP.C. and the r:.:ference under s. 307 of the Code
of Criminal Procedure in n::spect of the charge under s. 477-A WC'I?
disposed of by the same judgment ;
(ii) that the contention
that
the appellant's true status was
that of a serv;.i.nt and not that of= an agent and that he should have
been tried not under s. 409, l.P.C. but under s. 408, I.P.C. ·was also
without force inasmuch as his status \Vas that of an agent and not
that of a servant in view of his duties as Secretary of the Society.
The distinction
betv:een the t\VO is this a s~rvant acts under the
direct control
and supervision of the master, and is bound to conform to all reasonable orders given to him in the course of his work
.. An agent
though
bound
to exen·ise his authority in accordance
with all lawful instruction~ \.Vhich may be given to him from time
to time by his princip:ii, is not subject in its exercise to the direct
control or supervision of the principal ;
(iii) that the contention that there h1-::. been violation of s. 234
of the Cod.: of c:riminal Procedure ir. that the appellant had been
charged with three offcn..:es
under s. 409i l.P.C. and one under s.
477-A was also \vithout force as the case was governed by s. 235 ot
the Co<lc 0£ Criminal Pru;:edure as the several offences under s. 409,
I.P.C. and s. 477-A, 1.P.C. <irose out of th~ same acts and formed
part of the san1e transaction.
EmpEror v. Haria Dhobi, (A.LR. \937 Patna 662), Pachaimuthu
In 1·e, ([1932] l.L.R. 55 Ma<l. 715), Emperor v. Lachrnan Gangota,
(A.LR. 1934 Patna 424), Emperor v. Kalidas ([1898] 8 Born. L.R.
599), Emperor v. Vyankat Sing {fl907] 9 Born. L.R. 1057)
and
Emperor v. Chanbasappa (A.LR. 1932 Born. 61), referred to.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 143 of 1954.
On appeal by leave from the judgment and order
dated ·the 23rd March 1954 of the Allahabad High
Court (Lucknow Bench) in Criminal Appeal No. 112
of 1953 connected with Criminal Reference Register
No. 15 of 1953 arising out of the judgment and order
dated the 24th February 1953 in Sessions Trial No. 5
of 1952 of the Sessions Court at Lucknow.
2S.C.R.
SUPREME COURT REPORTS
1037
B. B. Tawakley, (K. P. Gupta and A. D. Mathur
with him) for the appellant.
S. P. Sinha (K. B. Asthana and C. P. Lal with
him) for the respondent.
1955. December 7. The Judgment of the Court
was delivered by
VENKATARAMA
AYYAR J.-This is
an appeal by
special leave against the judgment of the High Court
of Allahabad affirming the conviction of the appel1:1.nt by the
Sessions Judge, Lucknow under sections
409 and 477-A of the Indian Penal Code.
On 12-2-1949 a Society known as the Model Town
Co-operative
Housing
Society, Ltd.,
was
register.~d
under
the
provisions
of
the
Co-operatiYe
S'J<.:ieties
Act (II of 1912), its object being to acquire vacant
sites in the town of Lucknow and to al\ot them to its
members so as to enable them to build houses of their
own. The appellant. was
the chief promoter thereof,
and
collected
monies
from
prospective
shareholders
by way of share money. The first general body meeting of the :Society
was held on
1-3-1949. At that
meeting, the · appellant was elected Honorary Secretary and one Sri Munna Lal Tewari as Treasurer. The
latter having resigned, one S. C. Varma was appointed
Treasurer in his
stead. On 22-4-1949, there was
a
meeting of the Managing Committee, at which the
appellant
was
directed to hand over the accounts of
the Society and its funds to its Treasurer. The appellant gave a list of 38 persons
as members of the
Society, delivery cheques issued by
13 of them as
their share money, and paid a sum of Rs. 3,500 being
the amount stated to have been received by him from
the other 25 members
as share
money. The Society
did not function thereafter.
On 16-7-1949 some of the members wrote a letter to
the
Registrar of Co-operative Societies
pointing out
that the Society had not functioned ever since its
incorporation, and asking that steps might be taken
for examination of its accounts and, if necessary, for
its being wound up. On this,
there was an investigation of the affairs of the Society by two Assistant
1955
Chandi Prasad
Singh
v.
The Stat. of
U tlar Pradtsli
1955
Chandi Pra5od
Si1ish
v.
The State of
Uttar Pradesh
V rnkatarama
Ayyar ].
1038
SUPREME COURT .REPORTS
[1955]
Registrars, and on the basis of their reports dated
22-2-1950
and 18-5-1950 the present prosecution was
started against the appellant charging him under sections 409 and 477-A of the Indian Penal Code. The
charge under section 409 was that he had received a
sum of Rs. 500 from one Sri Chaturvedi, a sum of
Rs.
100 from Dr. 0. P. Bhanti and another sum of
Rs. 100 from Dr. R. S. Seth, all as share money in
December 1948, and that he had misappropriated the
same. The charge under section 477-A was that on
22-4-1949 the appellant acting as the Secretary of the
Society falsified the minute book, Exhibit P-18, by
omitting to show
therein
the share money received
from the three persons above mentioned. The defence of the appellant: was that the three amounts
aforesaid were paid to him not as prospective Secretary for the purpose of allotment of shares, but were
deposited with him in his individual capacity for purchasing shares, in case the Society worked well.
The trial of the offence under section 409 was held
with the aid of assessors
and that under section
477-A
with the aid of a jury, the same persons acting both as assessors and jurors, and they returned a
verdict of not guilty with reference
to the charges
under both the sections. The Sessions Judge,
disagreeing with the
verdict of the jury under section
477-A,
referred the matter to the High Court under
section 307 of the Code · of Criminal Procedure. He
also disagreed with the opinion of the assessors with
reference to the charge under section 409,
and held
that the appellant: was guilty and sentenced him to
four years'
rigorous imprisonment and a fine
of Rs.
1,000. Against this conviction, the appellant preferred
an appeal to the High Court. Both the reference under
section 307 and
the appeal were heard together by
the High Court, which agreed with the Sessions Judge
that the appellant had received the three amounts as
share
money and in his capacity
as
Secretary, and
accordingly
confirmed
his
conviction
under
section
409 ahd the sentence passed by the Sessions Judge.
Disagreeing with the verdict of the jury, it also held
him guilty under section 477-A and sentenced him to
2S.C.R.
SUPREME COURT REPORTS
1039
two
years' rigorous
imprisonment. The
present
appeal by special leave is directed av,ainst this judgment.
Mr. Taw2,kley firstly contended that the finding of
the courts below that the amounts paid by Sri Chaturvedi, Dr. Bhanti and Dr. Seth were paid :is share
money was erroneous, and in
support
of this contention relied on a letter written by one of them, Dr.
Seth, to 'the appellant on 3rd May 1951 (Ex. D-5) in
which it was stated that the amount was paid on the
express understanding that if the Society ran, a share
would be allotted to him and otherwise the monev
would be returned.
This letter was written long afte~·
proctedings
had
been
taken by the Registrar,
and
the courts below did not attach much importance to
it. On the ot!1er hand, Dr. Seth himself gave evidence
in these
proceedings
which deprives
Exhibit
D-5 of
very much of its
value.
Exhibit P-10
is the receipt
gra·;iL· l to
Sri Chaturvedi. It expressly recites that
Rs. 500 was received as
share monev fm
five shares
in the Society. Notices were also is~ued to both Sri
Chaturvedi
and
Dr. Bhanti
to
~lttend
the
general
body meeting of the Society to be
held on 1st March
1949 for electing the President and members of the
Managing
Committee
of the
Society,
and Dr. Seth
and Dr. Bhanti actually
attended it.
Sri
Chaturvedi
and Dr. Bhanti have also
given evidence
that they
paid the amounts only
as share capital. The courts
below accepted the above evidence, and held that the
moneys were not paid to the appellant in his individual capacity. There are no grounds for disturbing
that finding in special appeal.
It is now necessary to deal with the several contentions of law urged by Mr. Tawakley in support of
this appeal. His first
contention was that when the
Sessions Judge disagreed with the verdict of the jury
and with the opinion of the assessors, he should have
referred the whole case under section 307 for the decision of the High Court and not merely that part or
it which related
to the charge
under section 477-A,
and that his failure to do so vitiated the conviction.
He argued that when the same facts constitute two
1955
Chandi Prasad
Singh
v.
The State ef
Uttar .frad;sh
Ve~atarama
4,yyar J.
1955
Chandi Prasad
Singh
v.
Th£ St,te of
Uttar Pracb.sh
Y enkatarama
Apar J.
104-0
SUPREME COURT REPORTS
[1955]
distinct offences one of which is triable with the aid
of jurors and the other with assessors, and the accused
is
charged with both, the
reference under section
307
must relate to both the- charges, if inconsistent
findings by different courts with reference to the
·;ame matter is
to be
avoided. What would happen,
he asked, if, in the present case, the appellant did
not file an appeal against his conviction U<lder
section 409, but the High Court came to the conclusio!\ in
the
reference under section 307
that Sri
Chaturvedi, Dr. Bhanti and
Dr. Seth
did
not
pay the amounts to the
appellant
as
share money,
and tlldt no offence had been committed by him under
section 477-A ? The conviction of the appellant under
section 409 based on the finding of the Sessions
Judge that those amounts were paid as share money
would stand, notwithstanding that it would be against
the decision of the High Court. This anomaly could
be avoided, it is argued, by holding that the reference
under section 307 must be of the whole case.
Reliance
is placed in support of this contention on
the
observations in Emperor v. Haria Dhobi('). We
are
unable
to agree , with this contention. If the
procedure adopted by the Sessions Judge is to be held
to be illegal, it can only be on the ground that he
contravened
some
provision
of
law which
requires
him to refer the whole case to the High Court. It is
conceded that the only provision of law
dealing with
this matter is section 307.
But
that section applies
in terms only to trials with the aid of a jury. There
is therefore no power in the Sessions Court to refer
cases tried with the aid of assessors for decision of the
High Court under that section. That was the view
taken in Pachaimuthu In re('), where it was held that
the Assistant Sessions
Judge had no jurisdiction to
refer under section 307 the whole case to the High
Court, that he should himself dispose of the charges
which were triable with the aid of assessors, and that
the reference in
respect of those
charges was bad,
This decision was followed in Emperor v. Lachman
(1) A. I. R. 1937 Patna 662.
(2) [1932] l. L. R, 55 Mad. 715.
2S.C.R.
SUPREME COURT REPORTS
1041
Gangota(1}. The same view has also been taken by the
High Court of Bombay in a number of cases : Vide
Emperor v. Kalidas( 2 ), Emperor v. Vyankat Singh( 3)
and Emperor v. Chanbasappa( 4 ). We are accordingly
of opinion that the Sessions
Judge had contravened
no provision of law,
and had committed no illegality
in deciding the case, in so far as it related to the
charge under section 409,
himself. In this
case there
is the further fact that the appellant preferred an
appeal against his conviction under section 409 by the
Sessions Judge,
and that appeal was heard along with
the reference under section 307 in respect of the charge
under section 477-A, and that they were both of them
disposed of by the same judgment.
It was next contended that the true status of the
appeilant was that of a servant and not of an agent,
and that he should
have been charged not under
section 409 but under section 408. The substance of
the charge against the appellant is that as the promotor of a Society he lawfully
received the amounts
paid by Sri Ch:nurvedi, Dr. Bhanti and Dr. Seth, but
that
after
its
incorporation,
when
he
failed
on
22-4-1949 to hand over those amounts to the Treasurer
aad to include their names as shareholders in the minutes book, he committed offences
under sections 409
and- 477-A.
Now, what is the status
of the appellant
as Secretary of the Society in which capacity he cQmmitted the offences, servant or agent ? The distinction
between the two is thus stated in Halsbury's Laws of
England, Volume 22, page 113, para 192:
"A servant
acts
under
the
direct
control
and
supervision of the master, and is bound to conform to
all rea~onable orders given _him in the course of his
work ...... An agent though bound to exercise his authority in accordance with all lawful instructions which
may be given to him from time to time by his principal, is not subject in its exercise to the direct control
or supervision of the principal".
Having regard to the nature of the duties of the
appellant as the Secretary of the Society, we are clearly
(3) A. I. R. 1934 Patna 424.
(2) [1898] 8 Born. L. R. 599.
(l) [1907] 9 Bom. L. R. 1057.
(4) A. I. R. 1922 Bom. 61.
1955
Chandi Prasad
Singh
v.
The State of
Uttar Prades!t
Venkatarama
Ayyar J.
1955
C/1a·1rli Prasad
Singh
v.
T,
11t State of
Uttar Prades:1
Vcnkatarama
Ay;·ar J.
1042
SUPREME COURT REPORTS
[1955]
of opinion that his status was that of an agent and
not
a
servant.
Moreover,
whether
the
appellant
shouid be charged under section 408 or section 409 is
of no importance in the present case, as the sentence
imposed on him under section 409, viz., ~our
years'
rigorous
imprisonment
could
be
mairna:Pe<I
even
under section
403.
It was
argued by the appellant
that an offence
under section 408 was triable with the
aid of a iury, whereas
that under section
409 was
triable with the aid of assessors, and that he had
been prejudiced in that he had lost the benefit of a
tria I by jury. But this objection was not taken in the
trial court, and is not now open. Vide section 536
of the Code of Criminal Procedure.
It is next contended that there has been a violation
of section 234 of the Code of Criminal Procedure in
that
the
appellant
had
been
charged
with
three
offences- under section 409 and one under section 477-A.
But the case is Governed by section 235,
as the several
offences under sections 409 and 477-A arise out of the
same acts and form part of the same transaction.
Moreover, the appel.lant has failed to show any prejudice as required by section 537. This objection must
accordingly be overruled.
It was finally contended that there had been_no
proper examination of the appellant under section 342,
and that therefore
the conviction was illegal. Thio
objection was not raised in the Courts below, and is
sought to be raised
in this
Court by a supplemental
proceeding. We find no substance in this obiection.
In the result, this · appeal fails and is dismissed.