Case Note & Summary
The appeal arose from a criminal trial before the Court of Sessions, Visakhapatnam, where respondent No. 1 was tried for offences under Section 120-B, Section 409, Section 477-A and Section 471 read with Section 467 of the Indian Penal Code, and respondent No. 2 was tried for Section 120-B and offences under Sections 409 read with 109, 477-A and 471 read with 467 IPC. The Additional Sessions Judge convicted respondent No. 1 of all charges and respondent No. 2 of the first two charges. The respondents preferred appeals to the High Court challenging their convictions and sentences, while the State filed a revision petition for enhancement of sentences under Section 439 CrPC. The High Court allowed the appeals, acquitted both respondents, and dismissed the State's revision. The State of Andhra Pradesh then appealed to the Supreme Court by special leave under Article 136 of the Constitution. The prosecution case concerned the affairs of the Andhra Engineering Co. (AECO), which was the managing agent of Visakhapatnam Electric Supply Corporation Ltd. (VESCO) and other concerns. Respondent No. 1, an old employee of AECO, became Secretary of VESCO and resident representative of the managing agents, attending to day-to-day affairs including receipt of funds, expenditure, staff supervision, and purchases. The allegations pertained to misappropriation and falsification of accounts during his tenure, with respondent No. 2 allegedly abetting the offences. The respondents raised several contentions before the Supreme Court: (i) misjoinder of charges and persons due to cumulative use of clauses of Section 239 CrPC; (ii) charge of conspiracy could not be framed after the conspiracy had fructified; (iii) the Sessions Judge failed to inform the accused of their right under Section 342(4) CrPC to examine themselves as witnesses; (iv) the pardon granted to the approver was illegal; (v) the approver was illegally allowed to refresh his memory by referring to documents; and (vi) account books of certain firms without entries regarding payments were inadmissible. The Supreme Court rejected all these contentions. It held that the court could avail itself cumulatively of the different clauses of Section 239 CrPC, and Sections 233 to 236 did not override Section 239. Even if there was misjoinder, the High Court could not set aside convictions without concluding that the misjoinder occasioned failure of justice. The Court further held that conspiracy is an independent offence, and charging the accused with both the conspiracy and the offences committed in pursuance of it was permissible. There was no violation of Section 342 CrPC because the Sessions Judge had put every circumstance to the accused, copies of questions were given beforehand, and there was no duty to inform the accused of their right to be witnesses under Section 342(4), especially when represented by counsel. The pardon granted to the approver under Section 337 CrPC was valid as the offences fell within the scope of Section 337(1), including offences punishable with imprisonment up to ten years, and the Additional District Magistrate had competence under a specific government order. The approver's reference to account books and documents while deposing was legal under Sections 159 and 160 of the Evidence Act. The account books without entries were not relevant under Section 34 but were relevant under Section 11 and Section 5 of the Evidence Act to prove non-payment and regular maintenance. Consequently, the Supreme Court allowed the State's appeal, set aside the High Court's acquittal, and restored the convictions.
Headnote
A) Criminal Procedure - Joinder of Charges and Persons - Section 239 of Code of Criminal Procedure, 1898 - Cumulative use of clauses of Section 239 permitted; Sections 233-236 do not override Section 239; even if misjoinder, High Court needs finding of failure of justice to set aside convictions - The respondents were tried together for conspiracy, criminal breach of trust, falsification of accounts, and using forged documents; the High Court had found misjoinder but the Supreme Court held that the court can avail cumulatively of different clauses of Section 239 and that no misjoinder occurred, and in any event misjoinder alone would not vitiate trial without prejudice - Held that there was no misjoinder. B) Criminal Law - Conspiracy - Section 120-B of Indian Penal Code, 1860 - Charge of conspiracy can be framed even after conspiracy fructifies because conspiracy is an independent offence - Offences committed in pursuance of a conspiracy may be charged along with conspiracy; liability for conspiracy does not disappear merely because other offences were committed - Held permissible. C) Criminal Procedure - Examination of Accused - Section 342 of Code of Criminal Procedure, 1898 - No duty on court to inform accused of right to examine themselves as witnesses under Section 342(4); lengthy examination with questions supplied beforehand did not prejudice accused - Sessions Judge put every circumstance to accused, copies of questions given beforehand, written statements filed; represented by counsel aware of provision - Held no violation. D) Criminal Procedure - Pardon to Approver - Section 337 of Code of Criminal Procedure, 1898 - Pardon valid for offences punishable with imprisonment up to ten years and those exclusively triable by Sessions Court; Additional District Magistrate competent under government order - Offences under Sections 467 read with 471 and 477-A fell within Section 337(1); offence under Section 409 and consequently Section 120-B punishable with imprisonment up to ten years qualifies; Additional District Magistrate (Independent) had power under G.O. No. 3106 dated September 9, 1949 - Held pardon legally granted. E) Evidence - Refreshing Memory - Sections 159 and 160 of Indian Evidence Act, 1872 - Approver allowed to refer to account books and documents while deposing; permitted for witness depose to large number of transactions - Sessions Judge acted legally; no illegality. F) Evidence - Admissibility of Account Books - Sections 5, 11, 34 of Indian Evidence Act, 1872 - Account books with no entries relevant not under Section 34 but under Section 11 as absence inconsistent with receipt; also relevant under Section 5 - Absence of entries of payments alleged proved non-payment; account books regularly kept in course of business were relevant facts - Held admissible.
Issue of Consideration
Whether there was misjoinder of charges and persons; whether charge of conspiracy permissible after conspiracy fructified; whether Sessions Judge violated Section 342 CrPC by not informing accused of right to examine themselves; whether pardon granted to approver was illegal; whether approver could refresh memory by documents; whether account books without entries admissible.
Final Decision
The Supreme Court held that there was no misjoinder of charges and persons; charge of conspiracy permissible even after conspiracy fructified; no violation of Section 342 CrPC; pardon valid under Section 337 CrPC; approver's refreshing memory legal under Sections 159-160 Evidence Act; account books with no entries relevant under Sections 11 and 5 Evidence Act. The appeal was allowed, High Court acquittal set aside, and convictions restored.
Law Points
- Cumulative use of clauses of Section 239 CrPC permissible
- Sections 233-236 do not override Section 239
- Misjoinder not fatal absent failure of justice
- Conspiracy charge permissible even after fructification
- Court not duty-bound to inform accused of right to be witness under Section 342(4)
- Pardon under Section 337 valid for offences punishable up to ten years
- Approver may refresh memory by referring to documents under Sections 159-160 Evidence Act
- Account books relevant under Section 11 and Section 5 Evidence Act even without entries
- Absence of entries relevant to prove non-payment.
