Chandi Prasad Singh v. The St Ate of Uttar Pradesh.

Apar J. he asked, if, in the present case, the appellant did

not file an appeal against his conviction U<lder sec-tion 409, but the High Court came to the conclu-sio!\ 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 a applies in terms only to trials with the aid of 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.

Gangota(1}. The same view has also been taken by the 1955 High Court of Bombay in a number of cases : Vide Chandi Prasad Emperor v. Kalidas( 2 Emperor v. Vyankat Singh( 3) Singh ), v. and Emperor v. Chanbasappa( 4 We are accordingly ). The State of of opinion that the Sessions Judge had contravened Uttar Prades!t no provision of law, and had committed no illegality Venkatarama in deciding the case, in so far as it related to the Ayyar J. 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 pro-motor 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 mi-nutes 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 cQm-mitted 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 auth-ority in accordance with all lawful instructions which may be given to him from time to time by his princi-pal, 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 of opinion that his status was that of an agent and C/1a·1rli Prasad not a servant. Moreover, whether the appellant

Singh shouid be charged under section 408 or section 409 is v.

T, 11t State of of no importance in the present case, as the sentence Uttar Prades:1 imposed on him under section 409, viz., ~our years' Vcnkatarama rigorous imprisonment could be mairna:Pe<I even

Ay;·ar J. 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 pre-judice 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.

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.

B. B. Tawakley, (K. P. Gupta and A. D. Mathur 1955 with him) for the appellant. Chandi Prasad

S. P. Sinha (K. B. Asthana and C. P. Lal with Singh him) for the respondent. v. The Stat. of 1955. December 7. The Judgment of the Court U tlar Pradtsli 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 appel-1:1.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 meet-ing of the :Society was held on 1-3-1949. At that meeting, the · appellant was elected Honorary Secre-tary 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 ap-pellant 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 investiga-tion of the affairs of the Society by two Assistant

1038 SUPREME COURT .REPORTS [1955]

1955 Registrars, and on the basis of their reports dated Chandi Pra5od 22-2-1950 and 18-5-1950 the present prosecution was

Si1ish started against the appellant charging him under sec-v.

The State of tions 409 and 477-A of the Indian Penal Code. The Uttar Pradesh charge under section 409 was that he had received a V rnkatarama sum of Rs. 500 from one Sri Chaturvedi, a sum of

Ayyar ]. 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 de-fence of the appellant: was that the three amounts aforesaid were paid to him not as prospective Secre-tary for the purpose of allotment of shares, but were deposited with him in his individual capacity for pur-chasing 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 act-ing 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, dis-agreeing 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 two years' rigorous imprisonment. The present ap-1955 peal by special leave is directed av,ainst this judg-Chandi Prasad ment. Singh

Mr. Taw2,kley firstly contended that the finding of v. The State ef the courts below that the amounts paid by Sri Cha-Uttar .frad;sh turvedi, Dr. Bhanti and Dr. Seth were paid :is share Ve~atarama money was erroneous, and in support of this conten-4,yyar J. tion 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 indivi-dual capacity. There are no grounds for disturbing that finding in special appeal.

It is now necessary to deal with the several con-tentions 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 de-or cision of the High Court and not merely that part 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 distinct offences one of which is triable with the aid Chandi Prasad of jurors and the other with assessors, and the accused

Singh is charged with both, the reference under section v. 307 must relate to both the-charges, if inconsistent Th£ St,te of Uttar Pracb.sh findings by different courts with reference to the Y enkatarama ·;ame matter is to be avoided. What would happen,