State of Kerala Vs. A. Pareed Pillai and anr. - Court Judgment

Excerpt:
criminal - cheating - section 420 of indian penal code, 1860 - appeal against order of acquittal from offence of cheating - to hold person guilty of offence of cheating it must be shown that dishonest intention of cheating existed at time of making promise - such dishonest intention cannot be inferred from mere fact that accused cannot subsequently fulfil his promise - action of accused inconsistent with dishonest intention - held, no criminal liability can be fastened on accused. - [p.b. gajendragadkar, c.j.,; j.c. shah,; k.n. wanchoo,; m. hidayatullah, jj.] the appellant board passed a special resolution on september 28, 1956, imposing water-tax in hapur and a notification by the uttar pradesh government was published in the uttar pradesh gazette under s. 135(2) of the u.p. municipalities act (2 of 1916) notifying the resolution. fifteen house- owners of hapur who received notices from the appellant board for the payment of the tax petitioned to the high court under art. 226 ,of the constitution and asked for a writ or order preventing- the appellant board from realising the tax. the main objections were (a) that the resolution of the appellant board framing the proposal was not pub- lished in a local paper of hapur published in hindi and (b) that the rules framed for the imposition of the tax did not accompany the resolution which was affixed on the notice board at the office of the appellant board in purported compliance with the requirements for publication. the imposition was also challenged on the ground that arts. 14 and 19 of the constitution were violated. a single judge of the high court held that the tax was illegal inasmuch as the mandatory requirements of the municipalities act were not complied with by the appellant board while imposing the tax and that s. 135(3) of the act (which cures all defects in the imposition of the tax by making the notification of government conclusive evidence of the legality of the imposition) was ultra vires art. 14 of the constitution because it created a bar against proof and left no remedy to the tax payers thereby making a discrimination between them and other litigants. he further held that the sub-section by making government the sole judge of compliance with the act conferred judicial power on government contrary to the intendment of the constitution. the appellant board appealed under the letters patent. the divisional bench upheld the order of the single judge. the case was however certified as fit for appeal under art. 133 and the board appealed to this court. the contentions raised in appeal were: (i) s.135(3) shuts out all ,enquiry into the procedure by which a tax had been imposed and therefore suffered from excessive delegation of legislative function. (ii) the tax had not been validly imposed a there had been non-observance of mandatory provisions; (iii) s. 135(3) was discriminatory; and (iv) the sub-section was also bad because it conferred judicial functions on the state government. held : per gajendragadkar, c.j., hidayatullah, shah and sikri. jj.-(i) the rule of conclusive evidence in s.135(3) does not shut out all enquiry by courts. there are certain matters which cannot be established by a notification under s.135(3). for example no notification can issue unless there is a special resolution under s. 134. the special resolu-tion is a sine qua non for the notification. again the notification cannot authorise the imposition of a tax not included in s. 128 of the municipalities act. neither the municipal board nor the state government can exercise such power. what the section does is to put beyond question the procedure by which the tax is imposed, that is to say the various steps taken to impose it. a tax not authorised, can never be within the protection afforded to the procedure for imposing taxes. such a tax may be challenged, not with reference to the manner of imposition but as an illegal impost. [958 a-d] (ii) there can be no doubt that some of the provisions of ss. 131 to 134 of the act are mandatory. but all of them are not of the same character. in the present case, as in raza buland sugar co. ltd. and in berar swadeshi vanaspati, the provisions not observed were of a directory character and therefore the imposition had the protection of s. 135(3). [958 h] raza buland sugar co. ltd. v. municipal board, rampur. [1965] 1 s.c.r. 970 and berar swadeshi vanaspati v. municipal committe, committee sheogaon & anr. [1962] 1 s.c.r. 596, relied on. (iii) mandatory provisions must be fully complied with, and directory provisions should be substantially complied with. in either case the agency for seeing to this compliance is the state government. it is hardly to be expected that the state government would not do its duty or that it would allow breaches of the provisions to go unrectified. in cases of minor departure from the letter of the law especially in matters not fundamental, it is for the government to see whether there has been substantial or reasonable compliance. once government condones the departure, the decision of the government is rightly made final by making the notification conclusive evidence of the compliance with the requirements of the act. [959 h-960 d] (iv) the power to tax belongs to the state legislature but is exercised by the local authority under the control of the state government. it is impossible for the state legislature to impose taxes in local areas because local conditions and needs must very. the power must be delegated. the taxes however are predetermined and a procedure for consulting the wishes of the people is devised. but the matter is not left entirely in the hands of the municipal boards. as the state legislature cannot supervise the due observance of its laws by the municipal boards power is given to the state government to check their actions. the proceedings for the imposition of the tax must come to a conclusion at some stage after which it can be said that the tax has been imposed. that stage is reached, not when the special resolution of the municipal board is passed but when the notification by government is issued. after the notification all enquiry must cease. this is not a case of excessive delegation unless one starts with the notion that the state government may collude with the municipal board to disregard deliberately the provisions for the imposition of the tax. there is no warrant for such a supposition. the provision making the notification conclusive evidence of the proper imposition of the tax is conceived in the best interest of compliance of the provisions by the board and not to facilitate their breach. [960 f-961 e] excessive delegation is most often found when the legislature does not perform all the essential legislative functions and leaves them to some other agency. the legislature here performs all essential functions in the imposition of the tax. the selection of the tax for imposition in a municipal area is by the legislative will expressed in s. 128. neither the municipal board, nor the government can go outside the list of taxes therein included. the procedure for the imposition of the tax is also, laid down by the legislature for the municipal board to follow and the state government is there to ensure due observance of that procedure. in view of all this there was no excessive delegation or conferral or legislative functions on the appellant board or the state government. [961 f-962 c] (v) there are numerous statutes including the evidence act, in which a fact is taken to be conclusively proved from the existence of some other fact. the law is full of fictions and irrebuttable presumptions which also involve proof of facts. the tax payers in the municipality are allowed to object to the proposal for the tax and the rules and to, have their objections considered. they cannot be allowed to keep on agitating. section 135(3) which only concludes objections against the procedure followed in the imposition of the tax cannot be said to be discriminatory and -viola- tive of art. 14. [962 d-h] (vi) the objection that the impugned sub-section involves the exercise of judicial functions not open to the legislature is wholly erroneous. the subsection only shuts out further enquiry and makes the notification final. [962 h] per wanchoo, j. (dissenting) (i) section 135(3) bars enquiry by courts into all procedural provisions relating to imposition of taxes and therefore it bars enquiry into any matter covered by s. 131 to s. 135(1) of the act. it cannot be read down as barring enquiry only into some procedural provisions i.e. from s. 131 to s. 133 and not into the other procedural provisions i.e. s. 134 and s. 135(1). [968 d] section 135(3) is not a rule of evidence; it is a substantive provision which lays down in effect that once a notification under s. 135(2) is issued it will be conclusively presumed that the tax is in accordance with all the procedural provisions with respect to the imposition thereof. [969 e] ishar ahmad khan v. union of india, [1962] supp. 3 s.c.r. 235, referred to. the effect of s. 135(3) is that the procedural provisions are given the go by in the matter of imposition of tax and as soon as a notification under s. 135(2) is shown to the court, the court is helpless, in the matter even though none of the provisions of s. 131 to s. 135(1) may have been complied with. [969 h] (ii) in the field of local taxation relating to municipal boards and district boards and similar other bodies there are reasons for delegating :fixation of rate to such bodies subject to proper safeguards. this is exactly what has been done under the act subject to the safeguards contained in ss. 131 to s. 135(1). if those safeguards are followed the delegation would be proper delegation and could not be challenged as ultra vires on the ground of excessive delegation. but if the legislature after laying down with great care safeguards as to the imposition of tax including its rate makes a blanket provision like s. 135(3), which at one stroke does away with all those safeguards-and this is what s. 135(3) has done in the present case-the position that results is that there is delegation of even the essential function of fixing the rate to the subordinate authority without any safeguard. such a delegation would be excessive delegation and would be ultra vires. [972 d-f] (iii) section 135(3) inasmuch as it makes the delegation contained in ss. 128 to 135(2) excessive must be severed from the rest of the sections which are otherwise a proper delegation of legislative authority and should be struck down on the ground of excessive delegation. [973 b]  - alwaye as well as k. 73 of 1969 was filed by the state of kerala against kurien accused craving for his conviction for offence under section 120b indian penal code as well as for offence under section 420 read with section 109 indian penal code. some vehicles like a lorry three scooters and a standard car too were hypothecated in favour of the bank.h.r. khanna, j.1. three brothers pareed pillai, kader pillai and mohammed pillai, partners of a. pareed pillai and bros. alwaye as well as k. m. kurien assistant goods clerk in the southern railway at alwaye were tried in the court of special judge. trichur for an offence under section 120b indian penal code on the following charge:that you (1) sri a. pareed pillai (2) sri a. kader pillai (3) sri a. mohammed pillai and (4) sri k.m. kurien accused 1 to 4 between december 1962 or earlier and june 1963. at alwaye agreed to do an illegal act or acts to wit. accused nos. 1 and 2 to present forwarding notes in respect of coconut oil tins to be booked without actually tendering tins with coconut oil but only some empty tins, accused no. 4 to issue railway receipts in respect of such forwarding notes and accused no. 1 to present the railway receipts in support of hundies drawn on others in the federal bank ltd. alwaye and obtain value of the hundies and accused no. 3 to get empty tins transported and stored at the alwaye railway station. the said acts were done in pursuance of the agreement between you. these acts constitute offences punishable under section 5(2) of act ii of 1947 and section 5(2) of act 1947 read with section 109 of the i.p.c. section 420 of the indian penal code. section 420 of the indian penal code read with section 109 of the indian penal code. section 107 of the i.p.c. and section 197 read with section 109 of the i.p.c. you have therefore committed an offence punishable under section 120b of the indian penal code, and within my cognizance.in addition to the above there were eight charges charges 2 to 9) against kurien accused for an offence under section 5(1)(d) read with section 5(2) of the prevention of corruption act five charges (charges 10. 12. 13. 15 and 16) were framed against pareed accused for an offence under section 109 indian penal code read with section 5(2) of the prevention of corruption act. likewise, there were three charges (charges 11. 14 and 17) for an offence under section 109 indian penal code read with section 5(2) of the prevention of corruption act against kader accused. three charges (charges 18. 19 and 20) were framed under section 420 indian penal code against pareed pillai accused. charges 18 and 19 were also framed against kader and mohammed accused for offence under section 420 read with section 34 indian penal code, charge no. 21 was for an offence under section 420 read with section 109 indian penal code against kader and mohammed accused- charge no. 22 was for an offence under section 197 indian penal code against kurien accused, while charge no. 23 was for an offence under section 197 read with section 109 indian penal code against pareed and kader accused. the special judge acquitted mohammed, accused no. 3. pareed accused no. 1 was convicted under section 120-b. indian penal code. section 5(2) of the prevention of corruption act read with section 109 indian penal code and section 420 indian penal code and was sentenced to undergo rigorous imprisonment for a period of three years on the first count rigorous imprisonment for a period of three years and a fine of rs. 5.000 on the second count and rigorous imprisonment for a period of one year on the third count. the substantive sentences of imprisonment were ordered to run concurrently. in default of payment of fine. pareed accused was sentenced to undergo rigorous imprisonment for a period of six months.2. kader, accused no. 2. was convicted for offences under section 120b indian penal code. section 5(2) of the prevention of corruption act read with section 109 indian penal code. section 420 read with section 34 indian penal code and section 420 read with section 109 indian penal code, and was sentenced to undergo rigorous imprisonment for a period of one year on each of the four counts. all the sentences were ordered to run concurrently.3. kurjen accused no. 4. was convicted under section 120-b indian penal code section 5(2) read with section 5(1)(d) of the prevention of corruption act and section 420 read with section 109 indian penal code and was sentenced to undergo rigorous) imprisonment for a period of three years on each of the first two counts and rigorous imprisonment for a period of one year on the third count. the sentences were ordered to run concurrently.4. on appeal the kerala high court acquitted pareed and kader accused and set aside their conviction on all the counts the conviction of kurien accused was maintained only for the offence under section 5(2) read with section 5(1)(d) of the prevention to corruption act, the sentence of rigorous imprisonment for a period of three years on that count was confirmed.5. appeal no. 71 of 1969 was filed by the state of kerala against the acquittal of pareed and kader accused. it may be stated that appeal no. 31 of 1969 was filed by kurien accused against his conviction under section 5(2) read with section 5(1)(d) of the prevention of corruption act while appeal no. 73 of 1969 was filed by the state of kerala against kurien accused craving for his conviction for offence under section 120b indian penal code as well as for offence under section 420 read with section 109 indian penal code. both appeals 31 and 73 were not pressed and as such were dismissed on january 19. 1972. we are thus left with appeal no. 71 of 1969 only.6. the prosecution case is that the business of a firm a. pareed pillai and bros, (hereinafter referred to as the firm) was to sell coconut oil and to send it by rail to different places in india. it had been engaged in this business for over 15 years. the firm had an account with the federal bank ltd. alwaye (hereinafter referred to as the bank) and was allowed overdraft facilities to the extent of rs. 50.000 and discounting facilities to the extent of rs. 5.00.000. the firm had furnished securities to the satisfaction of the bank authorities for these facilities. pareed was a shareholder of the bank. it is stated that as a result of, dealing in forward contracts, the firm suffered losses in the end of 1962 and the beginning of 1963. as the limit of overdraft facilities was reached, the partners of the firm with the help of kurien accused resorted to the device of obtaining railway receipts of oil tins from kurien accused without actually delivering oil tins for booking. the four accused accordingly entered into a conspiracy and in pursuance thereof. pareed and kader accused presented forwarding notes to kurien accused without producing coconut oil covered by the forwarding notes. kurien accused on the basis of those forwarding notes issued railway receipts. thirteen demand drafts drawn on various parties were sent to the bank. in support of those demand drafts thirteen railway receipts were also sent to the bank. those railway receipts related to the period from february 2. 1963 to april3 24. 1963. the goods in respect of those railway receipts were however not consigned to the railways. to avoid detection. it is stated mohammed accused sent about 3.000 empty tins to the railway goods shed on or about the night of february 23. 1963 and stacked them in such a manner that they were surrounded by a few tins full of coconut oil.7. the case of the prosecution further is that on may 25, 1963 p. w. 1 v.c. chacko. inspector of accounts. southern railway made a surprise check at alwaye railway station.' chacko found that kurien accused had issued thirteen railway receipts during the period from febuary 2. 1963 till april 24. 1963 to the firm in respect of 3-525 tins of coconut oil for being consigned to different stations.although the loading register revealed that no tin of coconut oil in respect of the above thirteen railway receipts had been despatched from. alwaye railway station, there were found only 43 tins containing coconut oil and 2.807 empty 'ins at, the railway station. similar malpractices were found in respect of railway receipts issued in favour of the firm from chalakudi and irinjalakuda railway stations. we are not, however, concerned with the railway receipts issued from chalakudi and irinjalakuda railway stations. in the present appeal which relates only to the case covered by the thirteen railway receipts issued by accused no. 4 at alwaye railway station. report dated may 30. 1963 was sent by the assistant commercial superintendent of southern railway. olavakkot to railway police cochin harbour on the basis of facts which had come to light as a result of the surprise check by chacko. a case was registered on the basis of the above report8. the investigation of the case resealed that the bank credited in the account of the firm the amounts of the thirteen demand drafts drawn on the parties to whom the coconut oil tins mentioned in the thirteen railway receipts relating to the above mentioned demand drafts were to be sent. the amounts were credited in he account of the firm on the presentation if the demand drafts although the demand drafts were not accompanied by the railway receipts. the railway receipts in accordance with the practice prevailing for a lumber of years used to be sent by the firm to the bank subsequently.9. after the thirteen railway receipts in question were received by the bank the bank sent the thirteen demand traits along with the railway receipts to the bank branches in different cities for realising the amounts of the demand drafts. two out. of those demand drafts were nos. 1582a and 1582b drawn on ramkumar mataprasad. ranigani. govindram khaitan (p. w. 29) is a partner of that firm. demand draft 1582a was for, an amount of rs. 12.000. while demand draft 1582b was for an amount of rs. 21, 600. the railway receipts in respect of these two demand drafts were no. 956437 dated february 13. 1963 for 350 tins and no. 956505 dated february 25. 1963 for 350 tins. the amount of those two demand drafts totalling rs. 33.600 was paid by the firm ramkumar matanprasad. the oil tins mentioned in the railway receipts were, however, not received by ramkumar mataprasad as those tins were not consigned to the railways by the firm of accused-respondents. as regards the remaining eleven demand drafts, the amounts thereof were not received by the bank from the parties on whom the demand drafts were drawn. credit entries in respect of those eleven demand drafts for an aggregate amount of rs. 1.69.569.20 were consequently reversed by the bank in the account of the firm. proceedings for the recovery of the amount which thus became due to the bank were also initiated by the bank. the case of the prosecution so far as the offence of cheating, with which alone we are now concerned, was that pareed and kader accused had made false representation in respect of the booking of the tins of coconut oil and thereby induced the other parties to act to their detriment.10. at the trial the plea of pareerd and kader accused was that the demand drafts used to be sent to the bank. the bank thereafter discounted those demand drafts and credited the amounts thereof in the overdraft account of the firm. the railway receipts in respect of those demand drafts used to be handed over to the bank only after the goods were booked. the practice of discounting the demand drafts by the bank even before the production of the railway receipts was stated to have been in vogue since a long time and had the approval of the authorities of the bank. after the present case was registered, the bank, according to the above accused, called back all the outstanding demand drafts and debited them in the account of the firm. pareed and kader accused denied having sent any empty tins to alwaye railway station.11. the trial judge as stated above accepted the prosecution case regarding the complicity of pareed. kader and kurien and convicted and sentenced them as above. on appeal the high court maintained the conviction of kurien accused only for the offence under section 5 of the prevention of corruption act. it was held by the high court that the evidence about the transport of empty tins to alwaye railway station on. behalf of the firm of the accused was not convincing. it was further held that the representation which was made by pareed and kader accused related solely to the supply in future of tins of coconut oil. as there was no cogent evidence to show that the accused did not have the intention to fulfil their promise to supply coconut oil tins at the time of making the representation, the offence of cheating against them was held not to have been proved.12. the first contention which has been advanced in this court on behalf of (the appellant-state is that the accused-respondents cheated the bank inasmuch as they induced the bank authorities to credit the amounts of demand drafts in the account of the firm by representing that the oil tins relating to those demand drafts had been consigned to the railways. in this connection, we find that p. w. 9 vidyadharan. who was the accountant of the bank, has deposed that the bills discounted at the bank were two types. documentary bills and clean bills. when a bill was backed by a collateral document. it was called documentary bill. the other bills were termed clean bills. when a bill was produced and accepted for discount the proceeds ware credited to the party's account. the firm of the accused, according to the witness, furnished securities to the satisfaction of the bank for the discounting facilities. railway receipts were normally accepted for discount and were classified as documentary bills. the discounting of the bills was sanctioned by the agent of the bank. it is further in the testimony of the witness that the demand drafts were given first and the railway receipts were given only subsequently. the firm of the accused-respondents alone was given the concession to produce railway receipts subsequently. the fact that the firm of the accused had been given the credit for the amounts of demand drafts without railway receipts was mentioned in the weekly return sent to the head office of the bank. the witness has added that the above practice was in vogue since 1959.13. p.w. 11 narasimhan potti was the agent of the bank. according to him. the firm of the accused respondents was the principal constituent of the alwaye branch of the bank. the amounts of the demand drafts issued by the firm used to be credited in the account of the firm without production of the railway receipts. the railway receipts used to be produced initially after two or three days of the production of demand drafts, but subsequently this period was extended up to 25 or 26 days. the witness has also added that the above practice was being followed with the knowledge of the managing director. it is also in the testimony of the witness that there was no requisition from the accused-respondents to credit the amounts in their account without the production of the railway receipts.14. k.p. hormis (p.w. 20} was the managing director of the bank. according to this witness, the firm of the respondents had 251 shares of rs. 20 each in the bank. pareed accused had 110 shares while his wife had 101 shares in the bank. the wives of pareed. kader and mohammed accused had assets and gave guarantee to the bank for the facility afforded to the firm. equitable mortgage of four properties was also created in favour of the bank in that connection. some vehicles like a lorry three scooters and a standard car too were hypothecated in favour of the bank. the witness has admitted that as a result of enquiry it came to his notice that the practice of crediting the demand drafts without the railway receipts had been in vogue.15. the evidence on record thus reveals that the practice followed by the bank in the case of the firm of the accused-respondents since 1959 was to give credit to the firm for the amounts of demand drafts without the production of the railway receipts. this was indeed the finding of the high court16. it would follow from the above that it was not in pursuance of any representation regarding' the consignment of oil tins to the railway that the bank gave credit to the firm of the accused for the amounts of the demand drafts. on the contrary, the amounts of demand drafts were credited in the account of the firm immediately on receipt of the demand drafts even though they were not accompanied by the railway receipts. the railway receipts were, no doubt, to be sent by the accused to the bank subsequently. but there is no cogent evidence to show that at the time when the accused sent the demand drafts they did not have the intention to send subsequently railway receipts in respect of oil tins which were actually delivered to the railways. the material on record indicates that more than 5.000 oil tins were despatched to various stations from alwave railway station on behalf of the firm of the accused respondents during the period from february 2. 1963 to april 24. 1963. those oil tins were appropriated by the railway authorities towards the railway receipts of earlier dates and were sent to various stations. the fact that more than 5,000/- oil tins were despatched on behalf of the firm of the accused to the various stations during the above period is hardly consistent with a dishonest intention on their part. it may be that the accused could not keep up the delivery of the oil tins to the railways and no tins could be despatched in respect of the said thirteen railway receipts but that fact can give rise only to a civil liability of the accused. it is not sufficient to fasten a criminal liability on them. to hold a person guilty of the offence of cheating. it has to be shown that his intention was dishonest at the time of making the promise. such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise.17. so far as the presence of empty tins at the railway goods shed is concerned, those tins, according to the prosecution case, were transported under the direction of mohammed accused. mohammed was acquitted by the trial court and his acquittal was not challenged, in appeal. pareed and kader accused played no part in the transport of those tins to the railway goods shed. the high court has disbelieved the evidence regarding the transport of the empty tins on behalf of the firm. we see no cogent ground to take a contrary view by reappraising that evidence.18. we are. therefore, of the view that the material on record does not warrant interference with the finding of the high court on the charge of cheating in so far as it related to the credit given by the bank of the amount of eleven demand drafts in question in the account of the firm. it may also be observed that the bank has got collateral security in respect of the overdraft and discounting facilities to the firm of the accused-respondents and we have not been referred to any material to show that the said security would not be sufficient to reimburse the bank for the amount due to it.19. it has been contended on behalf of the appellant-state that even if the accused-respondents were not guilty in respect of the other demand drafts, they were guilty of the offence of cheating in so far as the two demand drafts honoured by the firm of ramkumar mataprasad of ranigani were concerned. it does not appear from the judgment of the high court that any separate or specific argument was addressed in respect of those two demand drafts. looking to all the facts, we are of the opinion that the demand drafts which were drawn on the firm of ramkumar mataprasad cannot be taken in isolation. the material on record shows that the thirteen demand drafts in question. including the two demand drafts drawn on ramkumar mataprasad. were sent to the bank by the firm of the accused-respondents in accordance with the practice which had been in vogue for a number of years of sending the railway receipts subsequent to the issue of demand drafts. the evidence adduced in the case as already stated earlier, does not warrant the conclusion that the accused-respondents had no intention at the (time of the issuing of the demand drafts that the oil tins for the price of which the demand drafts were issued would not be consigned to the railways. on the contrary, as stated earlier, during the period in question more than 5.000 oil tins were despatched to different stations on behalf of the firm of the accused. the material on record further indicates that even in the past there has been occasion when the firm of ramkumar mataprasad honoured the demand draft and requested that the goods might be despatched subsequently. this would appear from the telegram dated august 4, 1961 sent by the aforesaid firm to the firm of the accused. it is not in the evidence of govindram khaitan (p. w. 29). who is a partner of ramkumar mataprasad. that the said firm would not have paid the amounts of the two demand drafts if it had known that the oil tins had not been despatched.20. the view taken by the high court in acquitting the accused-respondents has not been shown to us to be unreasonable. we therefore, dismiss the appeal.