JUDGMENT Harries, C.J. - These are four connected appeals from convictions u/s 120B read with Section 420 of the Indian Penal Code and sentences passed by the First Special Tribunal (Calcutta), specially created and empowered to try offences of this kind. 2. Appeal No. 71 of 1948 is by Bijnanshekhar Rakshit and Bidyutbikash Rakshit, who were accused Nos. 1 and 2 before the Tribunal. Appeal No. 70 of 1948 is by Ganeshdas Mimani, whereas Appeal No. 73 of 1948 is by Brijnandan Tandon, accused. Nos. 3 and 4 respectively. All these four Appellants were said to be directors of a company known as the Ghee Supply Company. Appeal No. 72 of 1948 is by Gangadas Chandak, accused No. 5 before the Tribunal, a ghee broker, who was said to have acted for the Ghee Supply Company in certain transactions relating to the purchase of ghee for the Government of India. 3. The charge against the five Appellants was that they had conspired together to cheat the Government of India. The First Special Tribunal found all the Appellants guilty and convicted each of them of the offence of conspiracy u/s 120B of the Indian Penal Code and sentenced each of the Appellants Bijnanshekhar Rakshit, Bidyutbikash Rakshit, Brijnandan Tandon and Ganeshdas Mimani to undergo rigorous imprisonment for four years and to pay fines totalling Rs. 1,54,388-12-10 pies. In default of payment of these fines each Appellant was sentenced to undergo a further period of twenty-one months' rigorous imprisonment. The Appellant Gangadas Chandak was also convicted of the same offence and sentenced to four years' rigorous imprisonment and to pay a fine of Rs. 25,000. In default of payment of this fine, he was sentenced to undergo a further period of twenty-one months' rigorous imprisonment. 4. From these convictions and sentences the present appeals were preferred. 5. The facts of the case are comparatively simple and can be shortly stated as follows. During the last world war, the Government of India required large quantities of ghee for the defence services and appointed the Ghee Supply Company, Limited, as one of their agents to purchase ghee. This company was registered as a private limited company in Calcutta on August 19, 1942 and had five directors, four of them being the Appellants other than Gangadas Chandak. This company was registered as a private limited company in Calcutta on August 19, 1942 and had five directors, four of them being the Appellants other than Gangadas Chandak. It appears that this company was expressly formed for the purpose of purchasing ghee for the Government and the four Appellants, who were directors, were prominent merchants in the ghee market in Calcutta. The Appellant Gangadas Chandak was a ghee broker carrying on business at Calcutta and it is said that he was employed by the Ghee Supply Company to purchase ghee on their behalf. 6. According to the prosecution, the Ghee Supply Company were appointed agents for the Government of India for the purchase of ghee upon terms which are contained in a letter dated December 24, 1942 (Ex. 55) which was said to have been (sic) by the Chief Controller of Purchase (Supply), New Delhi, to the Ghee Supply Company, Limited, Calcutta. It is said that ( he Ghee Supply Company, Limited, accepted the terms contained in this letter, Ex. 55, but suggested certain modifications or clarifications. Unfortunately, the Government of India were Lot in a position to produce this letter of acceptance alleged, to have been sent by the Ghee Supply Company. However, it is said that another letter, Ex. 56, dated January 12/15, 1943 makes t clear that the Government of India had received a letter of acceptance and in this letter they dealt with certain points which ire said to have been raised in the letter of acceptance. 7. The Ghee Supply Company, it is said, purchased large quantities of ghee on behalf of the Government of India. The allegation made against them is that in the bills, which they submitted to the Government of India, the prices shown as having seen paid for various consignments of ghee were inflated and payment was made by the Government based upon these inflated prices. In that way it is said the Ghee Supply Company cheated the Government of India of large sums of money. It is alleged that the broker Gangadas Chandak was a party to this cheating and actually assisted in procuring these inflated bills. The inflation of the prices paid for various consignments of ghee was made in a number of ways. In that way it is said the Ghee Supply Company cheated the Government of India of large sums of money. It is alleged that the broker Gangadas Chandak was a party to this cheating and actually assisted in procuring these inflated bills. The inflation of the prices paid for various consignments of ghee was made in a number of ways. It was alleged, in the first place, that the prices shown, as having been paid by the Ghee Supply Company to various merchants in Calcutta from whom ghee was purchased, were deliberately inflated. Further, it is said that, in the bills submitted by the Ghee Supply Company to the Government of India, amounts were shown, as having been paid for tins in which the ghee was supplied, whereas in fact the cost of tins was nominal and was merely four annas per tin. Lastly, it was said that the Ghee Supply Company did not give to the Government of India certain credits which they were bound by the agreement, Ex. 55, to give, namely, discount for prompt payment and certain rebates customary in the ghee trade. 8. The First Special Tribunal held that, in a large number of bills submitted to the Government of India, the prices of ghee purchased by them were considerably inflated and further that these bills contained substantial sums said to have been paid for tins, whereas no tins had been purchased by the Ghee Supply Company. Further, the Tribunal was of opinion that the Ghee Supply Company deliberately withheld from the Government the fact that they had received large sums by way of discount and rebates which the Government of India were entitled to under the agreement, Ex. 55. 9. Shortly stated, the defence was that the prices of ghee shown in the bills submitted to the Government of India were the correct prices and these sums had actually been paid by the Ghee Supply Company for the ghee which had been purchase is and supplied to the Government of India. It was further stated, on behalf of the accused Appellants, than they had been compelled to purchase large quantities of tin containers and that they had only charged the Government of India the actual cost of these tins. They further denied that the had failed to give credit to the Government for any discount or rebates which they had obtained. It was further stated, on behalf of the accused Appellants, than they had been compelled to purchase large quantities of tin containers and that they had only charged the Government of India the actual cost of these tins. They further denied that the had failed to give credit to the Government for any discount or rebates which they had obtained. In any event, it was contended before us that, upon the terms of Ex. 55, the Government of India were not entitled to credit in respect of any of these discounts or rebates which had been given by sellers to the Ghee Supply Company. 10. In order to prove that the Government of India had been cheated, it was essential for the prosecution to prove the agreement which was said to have been entered into between the Government and the Ghee Supply Company. As I have said, the case for the prosecution was that the terms of this agreement are to be found in Ex. 55, which was a copy of a letter sent by the appropriate department of the Government of India to the Ghee Supply Company. In order to prove the contract between the parties, it was necessary for the prosecution strictly to prove Ex. 55, which was an offer by the Government requiring acceptance by the Ghee Supply Company. Unless the contract between the parties was established it would be quite impossible for the prosecution to show that the prices charged for ghee by the Ghee Supply Company were inflated. Before inflation could be established, the court would have to be satisfied as to what the correct contract prices of various consignments should have been. 11. Unfortunately, the prosecution wholly failed to prove this agreement. The witness, who was called to prove this agreement or contract, was Hari Kissen Joshi, P.W. T. He stated that he was an Assistant Director of Purchase, Department of Food, Government of India. In November, 1942, he said that he was an office superintendent in the office of the Chief Controller of Purchase (Supply), New Delhi. He produced Ex. 55, which he said was a contract, dated December 24, 1942, between the Chief Controller of Purchase (Supply) and the Ghee Supply Company, Calcutta, regarding an agency for the purchase of ghee for the defence services of India. He produced Ex. 55, which he said was a contract, dated December 24, 1942, between the Chief Controller of Purchase (Supply) and the Ghee Supply Company, Calcutta, regarding an agency for the purchase of ghee for the defence services of India. He said that this document was signed on behalf of the Chief Controller of Purchase (Supply) by Col. (now Brigadier) Boughton. The witness stated that he knew his signature and recognised it. The witness then went on to say: After this contract was communicated to the Ghee Supply company, our department received a letter from them notifying acceptance on their part of the agreement. That letter is not traceable. Ex. 56 is an office copy of a letter, dated. January 12/13, 1943, in reply to the abovementioned letter of acceptance by the Ghee Supply Company. It is signed by Col. Boughton. 12. The witness then went on to state that, on August 12, 1943, meeting took place between the officers of the Food Department, (sic) four representatives of the Ghee Supply Company, namely, N. Tandon (accused No. 3), J.K. Tandon, G.D. Mimani accused No. 4) and B.S. Rakshit (accused No. 1). At this eting, it was said that the agreement between the parties, (sic) was to expire in December, 1943, was extended to gust 31, 1944. The witness produced a document said to be i minutes of that meeting at which this extension of the contract period was agreed upon. 13. It will be seen that this witness, though he produced the document, Ex. 55, which must have been a copy of a letter sent the Ghee Supply Company, he did not prove the despatch of it letter. No other person was called and therefore, it was (sic) proved that Ex. 55 was ever sent to the Ghee Supply company. 14. The witness stated that the Ghee Supply Company had sent s department a letter accepting the offer contained in Ex. 55, at I think it is clear that this evidence is not admissible, secondary evidence of the contents of a document is only admissible when it has been established that the document mot be produced. All that this witness said was that the (sic) of acceptance was not traceable. He gave no evidence as what steps had been taken to find or trace this letter. He nearly remarked that it was not traceable. All that this witness said was that the (sic) of acceptance was not traceable. He gave no evidence as what steps had been taken to find or trace this letter. He nearly remarked that it was not traceable. There can be no question that, before secondary evidence of the contents of a document is admissible, the party tendering such secondary evidence must by evidence show that the original could not be produced, though every effort had been made to do so. In a (sic) decision of their Lordships of the Privy Council it was (sic) that merely stating that a witness was not available or at a document could not be found was not sufficient to permit (sic) admission of secondary evidence. The party tendering the secondary evidence must first satisfy the court that the original cannot be produced in spite of every reasonable effort to do so. (sic) mere bald statement of this witness that the letter of acceptance was not traceable was not, in my view, sufficient to title the witness to give secondary evidence of the contents of at letter. 15. The witness then referred to Ex. 56, which was the office by of a letter, dated January, 12/13, 1943, which was said to have been despatched to the Ghee Company in reply to their later of acceptance. Again the prosecution called no evidence grove that the original of Ex. 56 had ever been despatched his witness did not say that he had seen it despatched. He (sic) said that it was a letter in reply to the letter of acceptance sent by the Ghee Supply Company. The despatched therefore, of Ex. 56 was not proved and the reference to acceptance by the Ghee Supply Company in Ex. 56 is, therefore worthless to the prosecution, because there is no evidence the Ex. 56 was ever sent to the Ghee Supply Company. 16. The Tribunal accepted the evidence of P.W. 7, Hari Kissan Joshi, as proving the contract between the parties and in the judgment there are frequent references to the fact that t existence and the terms of the contract were not really in dispute. It may be that the defence did not specifically point out to the tribunal, when P.W. 7 was in the witness box, that to agreement was not proved. But that cannot possibly affect to position. It may be that the defence did not specifically point out to the tribunal, when P.W. 7 was in the witness box, that to agreement was not proved. But that cannot possibly affect to position. The prosecution must prove all facts upon which the rely to establish the guilt of an accused person and counsel for an accused person cannot make admissions upon questions of fact binding upon the accused. If the prosecution fails to prove (sic) material fact, it is not for counsel for the defence at that (sic) to point out the deficiency in the evidence, so as to enable t prosecution to call further evidence to establish the fact. The defence is entitled to rely upon any failure on the part of t prosecution to establish material facts and it cannot be said the such facts are proved by admissions merely because counsel for the accused had not raised objections immediately. In the case of Attorney General of New South Wales v. Henry (sic) Bertrand (1867) 39 L.J. (N.S.) (P.C.) 51, 57, Sir John Coleridge, who delivered the judgment the Board, observed as follows: The object of a trial is the administration of justice in a course as free from (sic) or chance of miscarriage as merely human administration of it can be--not the terests of either party. This remark very much lessens the importance of a prisoner's consent, even when he is advised by counsel and substantially, not of (sic) literally, affirms the wisdom of the common understanding in the profession, (sic) a prisoner can consent to nothing ; for thus it will be seen that a most imports consideration is forgotten--that of the jury charged with deciding on the effect of the evidence. It is essential that no unnecessary difficulty should be thrown the way of their understanding and rightly appreciating it. 17. This question as to how far counsel could bind an accused 1 his consent was expressly considered by a Bench of this Court the case of Deputy Legal Remembrancer v. Upendra Kumar Ghose (1906) 12 C.W.N. 140 in which it was held that, except where the (sic) expressly permits waiver, the rights of an accused should not held to be lost by his consent to a procedure or to admission evidence which the law does not authorise. The prisoner on (sic) trial can consent to nothing. The prisoner on (sic) trial can consent to nothing. It is the duty of Magistrates are all criminal courts to follow the procedure prescribed by lay and the consent of the accused cannot be invoked again irregularity in procedure. 18. The Advocate-General relied upon a Bench decision of the Patna High Court in Bam Bhagwan v. Emperor AIR (1918) (Pat.) 201. In the (sic) it was held by a Bench that where a document, which was (sic) per se inadmissible was admitted by the court in a criminal (sic) without formal proof of execution and the accused having efficient opportunity at the trial to call for formal proof omits (sic) take any objection, he cannot afterwards on appeal impeach (sic) verdict of the jury on the ground that the document had been submitted without formal proof. If this case decides that an accused can waive the necessity of the prosecution proving any it, then I think it is contrary to accepted principles and must regarded as wrongly decided. The case certainly finds no support from decisions of this Court and this, Court must dissent (sic) it. 19. It is, therefore, immaterial that counsel on behalf of the accused persons did not immediately object to the failure to above the contract relied upon by the prosecution. Counsel were able to raise this matter at a later stage in the trial and of (sic) raised the matter before us. They were, in my view, (sic) entitled to do so, though they did not specifically object to (sic) evidence of P.W. 7. 20. The evidence of P.W. 7 relating to the alleged extension of (sic) term of this contract proves nothing at all. He produced a document, Ex. 57, dated August 12, 1943, which was said to be (sic) copy of the minutes of a meeting held between representatives the Food Department and representatives of the Ghee Supply company. This witness does not state that the was present at (sic) meeting or that he kept the minutes. In fact he stated that Le minute was signed by a Mr. D.K. Khurody who was present at the meeting for the Chief Controller and cross-examined, stated that he knew Mr. Khurody's signature and recognised it. That evidence cannot possibly prove that this agreement was extended as a result of this meeting. The fact that the witness stated that the document was signed by Mr. D.K. Khurody who was present at the meeting for the Chief Controller and cross-examined, stated that he knew Mr. Khurody's signature and recognised it. That evidence cannot possibly prove that this agreement was extended as a result of this meeting. The fact that the witness stated that the document was signed by Mr. (sic), whose signature he recognised, proves nothing at all before the document could be admissible, evidence would have (sic) be given that the document produced gave a correct account (sic) what transpired at the meeting and without such evidence the document is wholly worthless. That being so, the prosecution (sic) wholly failed to prove that the operation of the agreement upon which they relied had been extended from January 1, 1944 to August, 1944. In any event, this document does not record bat the agreement had been extended. All that is said is that it was intended that the agreement should be extended. 21. It appears to me that the failure to prove this agreement strictly is fatal to the prosecution. The accused were examined (sic) great length, but nowhere do they state that there was ever a (sic) contract between them and the Government. Ex. 55 was put to them, but the most that they ever said was that a (sic) agreement upon its basis was never concluded and that, at (sic) it was a tentative agreement. It is to be observed that it stated in Ex. 55 that a formal agreement was to be entered (sic) later, though it is admitted that no such agreement was e executed. It may well be that there was a binding contract without this formal agreement, but this was never admitted any of the accused. The statements of the accused, thereto cannot assist the prosecution and in any event, the prosecution cannot rely upon these statements to prove essential facts in the case. Counsel for the Appellants say that these points had be pressed before the Tribunal, but there is no reference whatsoever in the judgment to the want of evidence on behalf of (sic) prosecution to which I have made reference. The Tribunal accepted the evidence of P.W. 7 as proving the contract and the extension of its period, but, for the reasons I have given, the prosecution, in my view, failed to prove the first essential fact of the case. 22. The Tribunal accepted the evidence of P.W. 7 as proving the contract and the extension of its period, but, for the reasons I have given, the prosecution, in my view, failed to prove the first essential fact of the case. 22. However, I do not think it would be right to decide this (sic) merely upon this failure to call proper evidence and I shall (sic) deal with the case for the prosecution on the merits. In order do so it will be necessary to refer to the terms of Ex. 55 in son detail. 23. Ex. 55 opens with a statement confirming the appointment (sic) the Ghee Supply Company, Limited, as Government ghee purchasing agents subject to the terms and conditions set out (sic) the document and pending the execution of a formal document. As I have already stated, though the execution of a form a document was contemplated, it was never suggested by the prosecution that any such document had ever been drawn up c executed. 24. By this agreement, the Ghee Supply Company were to be the purchasing agents to the Government of India for the purchase of ghee of the quantity and quality specified in the said document for the defence services. The Ghee Supply Company were precluded from trading directly or indirectly with the Government in ghee and were expected to devote the whole o their organisation to obtaining such quantities of ghee as might be required as agents in accordance with the terms of the agreement. The company were to purchase ghee of the required quality and quantity at the cheapest rates and in the (sic) interests of the Government and were not to pay for such ghee prices in excess of the "ceiling prices" fixed by Government iron time to time. The agreement was to cover the period December 16, 1942 to December 31, 1943 and could be terminated at three months notice, given by either party. 25. Clause VI of the document fixes what is called the "ceiling price" for naked ghee, that is, ghee exclusive of the costs of (sic) and charges referred to in the other paragraphs of the document. 26. Then follow clauses relating to prices. 27. 25. Clause VI of the document fixes what is called the "ceiling price" for naked ghee, that is, ghee exclusive of the costs of (sic) and charges referred to in the other paragraphs of the document. 26. Then follow clauses relating to prices. 27. Clause VII relates to packing and this clause requires that new or second-hand cleaned tins of the kerosene type, sufficiently strong to obviate loss or damage in transit from the point of purchase to destination, shall be used. It is then provided that the tins shall be uncased and will normally be supplied by Government. It is then said that-- the agent will be paid all actuals for tins supplied by him subject to a maximum price of Rs. 2-8-0 per new tin, later raised to Rs. 3 per tin and Rs. 1-10-0 per second-hand tin. 28. Clause XII of this document deals with the cost of ghee and provides that the Ghee Supply Company shall charge the Government only "the cost of ghee at actuals incurred by him at "the point of purchase" and this price is not to include any of the charges specified in Clause XIV. 29. This phrase "actuals incurred by him at the point of "purchase" is an extremely strange one which I have never seen in any commercial documents and it seems to me to reflect American influence upon the language spoken and written in Government departments. 30. Clause XIII deals with remuneration and sets out what charges the Ghee Supply Company are entitled to make. In short, they were entitled to charge certain sums to cover overhead and establishment charges, financing charges and commission. 31. The last paragraph of Clause XIII runs as follows : All profits other than the above charges, rebates, discounts, etc., received by the agent, shall be credited by him to Government and adjusted in the final invoice. 32. This is a somewhat obscure provision and I am by no means clear what should be credited to Government. It may be contended that all profits other than the above charges together with rebates, discounts, etc., must be credited to Government. On the other hand, the provision is capable of this construction that only certain profits shall be credited to Government and that rebates, discounts, etc., are not so chargeable. It may be contended that all profits other than the above charges together with rebates, discounts, etc., must be credited to Government. On the other hand, the provision is capable of this construction that only certain profits shall be credited to Government and that rebates, discounts, etc., are not so chargeable. This clause is by no means clear and I must confess to some surprise at seeing the word "etc." in a commercial document. What can the word "etc." cover? Obviously the person who drafted this document knew little about the necessity of accuracy in a commercial document. The word "etc." would I presume have to be construed ejusdem generis with the previous words, but the word should, in my view, never find place in a contract involving lakhs of rupees. 33. It is the case for the prosecution that, under this provision, the Ghee Supply Company had to give credit to Government for all rebates and discounts received by them, whereas the defence argue that they merely had to give credit for all profits other than certain charges, rebates and discounts. In other words, the defence contend that, under this provision, they were under no duty to give credit for rebates and discounts. 34. Clause XIV of the agreement provides that Government shall pay inter alia for the costs of tins. 35. Clause XV deals with payment and it will be necessary to set out two of the sub-clauses of this clause. (c) After the consignment has been cleared by the agent from the railway station and has been tendered by him at the inspection depot, the inspector will arrange for its inspection and will ensure that W.S.B. 65 (Inspection and Receipt Certificates portions) is handed over to the agent's representative at the inspection centre and copies are sent to other authorities concerned within three days of the receipt of the analysis report on the sample. (d) On receipt of the W.S.B. 65 from the inspector the agent will prepare a final invoice (Annexure 'C' enclosed) on the basis of the inspection note and other details available with him. He will then prepare a bill in W.S.B. 116 for the amount shown in column 10 of the final invoice form, giving reference on the bill, to the ninety per cent, bill under which payment was made on the preliminary invoice. He will then prepare a bill in W.S.B. 116 for the amount shown in column 10 of the final invoice form, giving reference on the bill, to the ninety per cent, bill under which payment was made on the preliminary invoice. This bill in duplicate together with W.S.B. 65 and the final invoice and other connected documents will be sent to the Chief Controller of Supply Accounts, Delhi, for making final payment. 36. It will be seen that, in order to obtain final payment, the agents had to forward not only a final invoice, but a bill W.S.B. 110 in duplicate and it was on presentation of these documents that the Government paid. It is to be observed that, in this case, no final bill in form W.S.B. 116 has been produced and I shall make reference to this fact at a later stage in this judgment. 37. Assuming that the prosecution had proved the agreement, it was then essential for them to prove that the bills supplied to Government under the agreement were false bills and that the presentation of such bills was a representation that what was stated in the bills was correct. The prosecution would then have to prove that the amounts shown in the bills had been paid and therefore the Government had been cheated. 38. It is clear from the agreement that the Ghee Supply Company were only entitled to charge Government the actual price of the ghee which they as agents had paid to the sellers. That I think must be the meaning of Clause XII to which I have already made reference. The somewhat odd phrase "actuals "incurred by him at the point of purchase" must I think mean the actual price paid by the agents for the ghee. In addition to this, the agents were entitled to certain other items for establishment, financing charges, commission and such like. (sic) allegation made by the prosecution is that the prices shown the final invoices submitted to Government were not the actual price paid by the agents for the ghee, but were in fact (sic) prices. Thus the Ghee Supply Company cheated the Government to the extent of this inflation. 39. (sic) allegation made by the prosecution is that the prices shown the final invoices submitted to Government were not the actual price paid by the agents for the ghee, but were in fact (sic) prices. Thus the Ghee Supply Company cheated the Government to the extent of this inflation. 39. In order to prove that the prices shown in the final bills were inflated, the prosecution had to prove the bills submitted by the agents, and as I have said, no bill in form No. W.S.B. 116 as squired by Clause XV of the agreement was produced in this case. (sic) that was produced were 172 final invoices. It was necessary under para. XV (d) to produce these final invoices with the bills 1 form W.S.B. 116. What happened to the final bills it is impossible to say. 40. Mr. Sarat Chandra Bose contended that the failure to produce lese bills was fatal to the case, because the charge related to heating by presentation of bills and not the presentation of (sic) invoices. The charge reads as follows: That you, along with others, between December, 1942 and April, 1944 at Calcutta-Delhi and other places were parties to a criminal conspiracy to cheat the Government of India by making false declarations in the bills submitted by the Ghee apply Company, Ltd., of 9/1 Ram Kumar Rakshit Lane, Calcutta (of which you accused Nos. 1, 2, 3 an 4 were directors and you accused No. 5 was the purchasing roker) with regard to the price of ghee properly chargeable to the said Government order the agreement Ex. 55 and thereby dishonestly inducing the said Government make payments to the said Ghee Supply Company of amounts in excess of what as legally due and payable to them and you thereby committed an offence punishable u/s 120B read with Section 420 of the Indian Penal Code and within the cognizance of this Tribunal. 41. Mr. Bose's argument was that the prosecution had wholly ailed to prove that the Government had been cheated is the result of presentation of false bills, because no bill, as required by the agreement, had ever been proved. The prosecution, on the other hand, says that the production and proof of invoices would be sufficient to sustain the charge and as have stated, 172 invoices were produced in this case. Technically, Mr. The prosecution, on the other hand, says that the production and proof of invoices would be sufficient to sustain the charge and as have stated, 172 invoices were produced in this case. Technically, Mr. Bose is right and the prosecution should, think, at least have explained why no final bills in the form prescribed by the agreement were produced. However, the production of the final invoices might establish cheating, if the prices in those invoices were proved to be inflated. Proof of inflated prices in the invoices might be said substantially to fall within the terms of the charge. 42. The essential fact which the prosecution had to prove was the submission of invoices, in which the prices of ghee had been inflated. It was, however, urged by Mr. Sarat Chandra Bose that the prosecution had failed to prove a single invoice and certainly the direct evidence which they called clearly proved nothing. 43. The Government called Kahan Chand Dewan, P.W. 11, prove the invoices submitted by the Ghee Supply Company the Government and upon which the Government had paid. (sic) evidence-in-chief of this witness appears at first sight to be qui satisfactory. He stated that he was a Superintendent in the office of the Controller of Food Accounts, Delhi and he (sic) that it was that office that made payments to contractors suppliers for supplies made to the order of the Food Department. He mentioned that there was a copy of Ex. 55 in his office Delhi. He then stated that before March 1, 1943, bills for to supply of foodstuffs were paid through the office of the Control of Supply Accounts, but from March 1, 1943, a new office namely, the office of the Controller of Food Accounts, We established and all relevant papers and documents relating food supply were made over to this department. Since that date all bills had been paid through this office of the Controller c Food Accounts. He then stated the procedure for payment, an he stated that the final bill submitted would show the (sic) amount payable for the supply less the amount already receive under the preliminary invoice. Since that date all bills had been paid through this office of the Controller c Food Accounts. He then stated the procedure for payment, an he stated that the final bill submitted would show the (sic) amount payable for the supply less the amount already receive under the preliminary invoice. The final bill, he said, (sic) checked with the vouchers and other documents and payment were made for the sum found by the authorities to be admissible He then stated that the office maintained in audit register showing details in respect of payment of each separate bill and he produced this audit register, Ex. 75 and purported to prove various entries in it showing the amounts paid to the Ghee Supply Company as the result of the presentation of various bills. 44. When this witness was cross-examined, it became quite clear that he had no personal knowledge of these bills or of how the audit-register had been kept. He admitted that he only became superintendent of the section which dealt with the purchase of ghee from August, 1945 and that before that date he had nothing whatsoever to do with the purchase of ghee. He there admitted that the audit-register, which he produced, had beer prepared in another section and that he had had nothing to do with it at any time and knew nothing about it. He further admitted that the bills, vouchers and statements which he had produced were never examined by him. He had merely collected and brought "them to court for the purposes of the case. He then added : "I had nothing to do with them "before." 45. It is quite clear from the answers given by this witness in cross-examination that he never received these bills and that he knew nothing as to how they were paid or how or by whom the audit-register was entered up. The witness appears to have been quite frank and all his evidence amounts to is that certain bills were collected in the office and lie produced them in court. That evidence can never prove presentation of these bills by the Ghee Supply Company and the register which he produced also proves nothing at all. 46. The witness appears to have been quite frank and all his evidence amounts to is that certain bills were collected in the office and lie produced them in court. That evidence can never prove presentation of these bills by the Ghee Supply Company and the register which he produced also proves nothing at all. 46. It was suggested that the entries in the register were relevant and there can be no doubt that entries in such registers are relevant by reason of Sections 34 and 35 of the Indian Evidence Act. But a relevant fact has to be proved like any other fact. Entries in these books are made relevant by the Indian Evidence Act, but there is nothing in the Act which provides that such entries prove themselves. There was, therefore, no proof of the entries in the register and no proof of the receipt of any of these invoices. 47. This want of proof was never mentioned in the judgment of the Tribunal, which has proceeded on the basis that everything was duly proved. It was suggested by the learned Advocate-General that the invoices were proved, because the endorsements on cheques paid on those invoices were proved by Bibhuti Bhushan Basu, P.W. 29, who was an Accounts Clerk in the Imperial Bank, Barhabazar Branch, to have been made by various directors of the company. He produced a large number of cheques which he said were signed by various directors of the Ghee Supply Company. He further stated that he had seen signatures on bills and statements of purchases. He only stated "Prima facie they are all right. I would not swear". It follows that this witness, therefore, did not prove the signatures on any of the bills and statements of purchases and that being so, it seems to me that the prosecution wholly failed to prove the invoices which were said to contain inflated prices. 48. Assuming, however, that these invoices were properly proved, the prosecution had then to show, that the prices stated in the invoices were inflated. 49. The defence to this part of the case was that the prices shown were the true prices though they were not the prices actually paid to the original sellers of the ghee. 48. Assuming, however, that these invoices were properly proved, the prosecution had then to show, that the prices stated in the invoices were inflated. 49. The defence to this part of the case was that the prices shown were the true prices though they were not the prices actually paid to the original sellers of the ghee. According to the defence, accused No. 5, Gangadas Chandak, had been employed as the broker of the Ghee Supply Company for the purchase of mast of the ghee supplied to the Government. According to the defence, ghee brokers are not brokers in the ordinary sense of the term. They are in fact principals, who purchase as principals and again sell in that capacity. They, however, it is said, do not invoice the goods to the ultimate purchaser, but require the original seller to invoice the goods direct to the ultimate purchaser. The price shown in this invoice is not the price at which the broker purchases from the original seller, but the price at which the broker sold to the ultimate purchaser. The, invoice when made is in form an invoice showing a sale by the original seller to the ultimate purchaser at the price fixed between the broker and the ultimate purchaser. The invoice, therefore, does not correctly record the transaction, which is a sale by the seller to the broker and a re-sale by the broker to the ultimate purchaser. Though the invoice does not correctly show how the transaction took place, nevertheless the price shown in the invoice is the correct price, as it is the price paid by the ultimate purchaser to the so-called broker for the ghee. According to the defence, the invoices produced correctly showed the price the Ghee Supply Company paid, though the invoices did not correctly record the actual transactions. According to the defence, they were entitled to claim the amount shown as the price of the ghee in the invoice, as that was the price which they had to pay the broker for it. They received that price from the Government and paid the whole amount by cheque to the original seller and the original seller then paid the difference between the price agreed between the Ghee Supply Company and the broker for the ultimate purchase and the price agreed between the original seller and the broker for the first purchase to the broker. They received that price from the Government and paid the whole amount by cheque to the original seller and the original seller then paid the difference between the price agreed between the Ghee Supply Company and the broker for the ultimate purchase and the price agreed between the original seller and the broker for the first purchase to the broker. This, it was said, was the general custom in the trade and that the invoice price was in fact the true price which had been paid by the Ghee Supply Company, though admittedly the original sellers were not entitled to the whole of that price. 50. The prosecution contended that there was no such custom in the trade and that the setting up of the broker as a principal was merely a device for inflating the price. According to the prosecution, the broker in the ghee trade acted as broker and when he negotiated a sale it was a sale by the purchasers not to him, but to his principals. Therefore, the price paid was the price fixed in the original sale to the broker and that the alleged subsequent re-sale by the broker to the Ghee Supply Company was fictitious and was merely a device to warrant the submission of an inflated bill. The prosecution had to admit that, though the original seller had been paid this so-called inflated price, nevertheless in every case, in which the broker Gangadas Chandak was concerned, he and not the Ghee Company had received from the original seller the difference between the price at which the ghee was originally sold to the broker and the price charged by the Ghee Supply Company to Government. According to the defence, the fact that, in every case, this difference was paid to the broker showed clearly that the broker was acting as principal and that the Ghee Supply Company had in fact paid the sums claimed in the invoice. 51. The prosecution called a large number of ghee merchants, who had sold ghee to the Ghee Supply Company through the broker Gangadas Chandak. Some of these witnesses also deposed to sales made directly between them and the Ghee Supply Company. It will be convenient to deal firstly with the evidence relating to sales alleged to have been made by these witnesses to the Ghee Supply Company through Gangadas Chandak, the broker. 52. Some of these witnesses also deposed to sales made directly between them and the Ghee Supply Company. It will be convenient to deal firstly with the evidence relating to sales alleged to have been made by these witnesses to the Ghee Supply Company through Gangadas Chandak, the broker. 52. It was alleged by the prosecution that two persons, Radhika Prasad Sen, P.W. 5 and Bugmohan Bhukmarea, P.W. 18, who were ghee brokers frequently acted with Gangadas Chandak in transactions on behalf of the Ghee Supply Company. The case for the prosecution was that these two persons were in partnership with Gangadas Chandak and that would appear to be so, though they did not admit it. 53. The first and most important witness called by the prosecution was Suraj Ratan, P.W. 1. He stated that he was a partner in the firm of Ram Gopal Ram Ratan and that he had had transactions with the Ghee Supply Company. He stated that his first transaction was in November, 1943. According to him, Gangadas Chandak acted as broker on behalf of the Ghee Supply Company and he purchased ghee from the witness. He said that, in their first transaction in November, 1943, he quoted a rate of Rs. 126 per maund for the ghee. Gangadas Chandak agreed to purchase, but he asked the witness that the price should be shown on the bill as Rs. 135. This, according to the witness, appeared strange, so he went to the office of the Ghee Supply Company, where he met either the accused Bijnan Babu or Bidyut Babu. He asked the person whom he met whether Gangadas Chandak's proposal to make out bills at the rate of Rs. 135 per maund was made with the consent of the company, when the actual sale price agreed upon was Rs. 126. According to the witness, the director with whom he had this conversation told him that he should make the bills out at the rate of Rs. 135 and that the company would arrange later to get a refund representing the difference between the actual sale price and the fictitious price and that the refund would be obtained through Gangadas Chandak. This director also informed the witness that he would be kept informed in future as to the rate to be shown in the bills for ghee purchases by the Ghee Supply Company. This director also informed the witness that he would be kept informed in future as to the rate to be shown in the bills for ghee purchases by the Ghee Supply Company. The witness then gave accounts of various transactions, the first being of November 6, 1943. In this transaction, 592 tins of ghee were sold to the Ghee Supply Company of a total weight 260 mds. 11 srs. and 12 chs. The rate shown on the invoice was Rs. 135 per maund whereas the real sale price was Rs. 126 per maund. He spoke of another transaction on November 8, involving ghee weighing 135 mds. and 9 srs. Though the sale price was Rs. 126 per maund the bills submitted by the witness showed price at the rate of Rs. 135 per maund. According to the witness, he was paid the full amount of the bill at the inflated rate, but he returned the difference between the inflated rate and the contract u price to the Ghee Supply Company through Gangadas Chandak, the broker. The witness then gave details of a number of other transactions in which he submitted inflated bills and was paid the inflated price. In all cases, he said that the difference between the inflated price and the real price was repaid by him to the Ghee Supply Company through Gangadas Chandak, the broker. 54. This witness was believed by the Tribunal and he appears to have been the only witness in the case who did not display any signs of hostility to the prosecution. It was suggested, on behalf of the defence, that he was a rival of the Ghee Supply Company in business and that he was hoping to obtain the contract which the Ghee Supply Company had with Government. There is really no material upon which one can hold that this witness was inimical to the Ghee Supply Company. Doubtless a considerable amount of jealousy existed on the ghee market, because the Ghee Supply Company had been given what must have appeared to all ghee merchants as a very attractive contract. It is, however, quite clear that this witness did not tell the truth when he stated that his first transaction with the Ghee Supply Company took place in November, 1943. It is, however, quite clear that this witness did not tell the truth when he stated that his first transaction with the Ghee Supply Company took place in November, 1943. The impression which his evidence-in-chief leaves upon me is that he intended the court to believe that in his first transaction with Gangadas Chandak he thought that the suggestion that an inflated price should be shown in the invoice to be somewhat strange and extraordinary. He says that he immediately went to the Ghee Supply Company and saw one of their directors who assured him that they approved of the proposal made by Gangadas Chandak. In fact, however, this witness had to admit that he had entered into similar transactions previously with the Ghee Supply Company. The following question was put to him in cross-examination: I put it to you that your statement in your examination-in-chief that you did business with the Ghee Supply Company for the first time in November, 1943, is false? The witness's answer was-- No it is not false, as I shall explain. I admit that our firm had dealings with the Ghee Supply Company before November, 1943. When I said in the examination-in-chief that my firm had had dealings with Ghee Supply Company since 1943, I meant dealings in connection with this case. 55. He then had to admit that he had dealings with the company in April, 1943 and that in respect of this transaction he had paid the difference between an inflated price and the real price to the Ghee Supply Company through Gangadas. His attention was also drawn to other transactions between him and the Ghee Supply Company before November, 1943 and it is clear from answers that the witness was deliberately lying when he d that the first transaction took place in November, 1943 and at he thought that it was a very strange arrangement and therefore, went to see one of the directors for confirmation of the (sic) made by Gangadas Chandak. It is difficult to say why e witness lied on this question, but clearly he wished to (sic) himself. In other words, he wished to create an (sic) that he only put an inflated price in the invoice at (sic) express request of the Ghee Supply Company. It is difficult to say why e witness lied on this question, but clearly he wished to (sic) himself. In other words, he wished to create an (sic) that he only put an inflated price in the invoice at (sic) express request of the Ghee Supply Company. He had done on a number of occasions previously and therefore, there was nothing strange in the proposal made by Gangadas Chandak in November, if any such proposal was ever made. Further it is ear that this witness had had similar transactions with other (sic) in which he paid the difference between the invoice price id the real price to the broker. In fact, in one case he appears have shared this difference with the broker. This is clear (sic) para. 85 of his evidence at p. 32 of the paper-book. 56. This witness also had to admit in cross-examination that brokers did frequently act as principals, though he did not admit lat that was the general custom of the trade. However, his (sic) books show that he had numerous transactions with brokers s principals in which he had eventually invoiced the ghee to the ultimate purchasers, not at the price at which he himself (sic) sold to the broker, but at the price stated by the broker to be the purchase price payable by the ultimate purchaser. 57. There can be no doubt whatsoever that the evidence of this witness makes him an accomplice and this the Advocate-General had to concede. A proposition was made to him by Gangadas Chandak which the witness would have the court believe bounded strange and palpably dishonest. According to the witness he spoke to one of the directors of the Ghee Supply Company and it was only, after an assurance given by him, that hey required the price to be inflated that he agreed to do so. The witness must have known that the Ghee Supply Company were acting as the sole agents of the Government of India. That fact could never have been concealed from the ghee merchants m the ghee market in Calcutta. The witness would, therefore, snow that ghee was being purchased for the Government of India and that, at the request of the Ghee Supply Company, an inflated price was being shown in the invoice obviously to have payment at that inflated rate. That fact could never have been concealed from the ghee merchants m the ghee market in Calcutta. The witness would, therefore, snow that ghee was being purchased for the Government of India and that, at the request of the Ghee Supply Company, an inflated price was being shown in the invoice obviously to have payment at that inflated rate. As I have said, if the evidence of this witness is believable, then he was a party to transactions for cheating the Government of India. In fact it might even be Suggested that he was a member of a conspiracy to cheat the Government of India. If there is any truth in his evidence then clearly the witness is an accomplice to at least the crime or crimes of cheating. That being so, it would be very unsafe to convict any of the accused on his evidence unless his evidence, corroborated in material particulars by other independent evidence. 58. The evidence of an accomplice is admissible and Section 133 of the Indian Evidence Act expressly provides that an accomplice shall be a competent witness against an accused person and a convicted is not illegal merely because it proceeds on the uncorroborated testimony of an accomplice. However, an illustration to Section 11 of the Indian Evidence Act provides that a court may (sic) that an accomplice is unworthy of credit unless he is corroborate in material particulars. 59. It has always been the practice in England for learned Judges to warn juries that it is highly dangerous to convict a accused person on the uncorroborated testimony of an accomplice But a conviction after a clear warning is not vitiated. I England this practice of warning juries has existed for man years and nowadays juries are particularly warned of the danger of convicting on the uncorroborated testimony of an accomplice and are frequently advised by learned Judges to acquit the accused if they find the evidence of the accomplice uncorroborated by any other independent testimony. 60. A similar rule has been followed for many years in India am it is now the universal practice of the courts not to convict where an accomplice's evidence is uncorroborated. Of course, where the trial is by a jury a conviction after a clear warning cannot be set aside. 61. 60. A similar rule has been followed for many years in India am it is now the universal practice of the courts not to convict where an accomplice's evidence is uncorroborated. Of course, where the trial is by a jury a conviction after a clear warning cannot be set aside. 61. The wisdom of this practice has recently been referred to be their Lordships of the Privy Council in the case of Mahadeo v. The King (1936) 40 C.W.N. 1164, 1170--1, which is not an Indian case. At p. 1170 Su Sidney Rowlatt, who delivered the judgment of the Board, observed: It is well settled that the evidence of an accessory, which Sukraj plainly was en on his own showing, must be corroborated in some material particular not only bearing upon the facts of the crime but upon the accused's implication in it and further that evidence of one accomplice is not available as corroboration of another ; The King v. Baskerrilte (1916) 2 K.B. 658. This rule as to corroboration, as was pointed out in the case just cited, long a rule of practice, is now virtually a rule of law and in a case like the present it is a rule of the greatest possible importance, the position being that there are three persons all implicated in a crime and one of them or two of them exculpates himself or themselves by fastening the guilt upon the other. In the present case, moreover, all the persons concerned had originally given false statements and belonged to a class of persons who are at the best not reliable witnesses. 62. It seems to me, therefore, that even if the court was inclined to accept the evidence of this witness, it would be highly dangerous to convict purely on that evidence. As Sir Sidney Rowlatt pointed out in the observation, which I have quoted, (sic) witness was obviously trying to exculpate himself and to row all the blame on the accused persons, namely, the (sic) rectors of the Ghee Supply Company and Gangadas Chandak, (sic) broker. His evidence that when inflating of the price was (sic) suggested to him by Gangadas Chandak he at once went to (sic) the directors, clearly shows an intention of throwing the ante entirely on the accused. This, therefore, is just the sort (sic) case envisaged by Sir Sidney Rowlatt where corroboration is (sic). His evidence that when inflating of the price was (sic) suggested to him by Gangadas Chandak he at once went to (sic) the directors, clearly shows an intention of throwing the ante entirely on the accused. This, therefore, is just the sort (sic) case envisaged by Sir Sidney Rowlatt where corroboration is (sic). It can be suggested that this witness's evidence is (sic) by the evidence of a large number of ghee merchants ho were also called in the case. The majority of these witnesses turned hostile to the prosecution and the best of them, from the point of view of the prosecution, is Mahta Prasad, P.W. 2. But even he did not support the prosecution on many aspects of the case. These other merchants speak of similar transactions in which the price stated by them in the invoice was not the price t which they sold ghee to the broker Gangadas Chandak. They further stated, that they were paid the inflated price and then returned the difference to Gangadas Chandak, though some of (sic) make it clear that they did not return the difference to the ghee Supply Company through Gangadas Chandak. They suggest that the difference was payable on the transaction to Gangadas Chandak alone. If these transactions were dishonest, hen clearly all these brokers were also accomplices. It might (sic) said that they would obviously know why the price was being (sic) and that being so, they would clearly be parties to the heating. If these brokers were parties to cheating, they were accomplices just as P.W. 1 was an accomplice and that being (sic) their evidence could not amount to corroboration of the evidence of P.W. 1. Sir Sidney Rowlatt in the observation, which I have quoted, makes it clear that the evidence of one accomplice is not available as corroboration of another. If one accomplice cannot corroborate another, neither can twenty accomplices corroborate another. If the evidence of these witnesses requires corroboration then such evidence cannot corroborate the evidence of another witness which also requires corroboration by independent testimony. 63. That being so, it appears to me that the evidence of P.W. 1 is not corroborated by the body of evidence called relating to similar transactions, as all the witnesses concerned in those transactions must also be accomplices if the suggestion of the prosecution be true. 64. 63. That being so, it appears to me that the evidence of P.W. 1 is not corroborated by the body of evidence called relating to similar transactions, as all the witnesses concerned in those transactions must also be accomplices if the suggestion of the prosecution be true. 64. The Tribunal also seems to have thought that the evidence of P.W. 1 was corroborated by entries in his books. But, unfortunately for the prosecution, these entries were proved by P.W. 1 himself. Entries in books of account are relevant facts by reason of Section 34 of the Indian Evidence Act. But each entry must be proved. Had these entries been proved by independent witnesses, then it might be said that the entries would corroborate the witnesses. But a witness whose evidence needs corroboration cannot himself corroborate that evidence by proving entries ii his books. The entries are not evidence apart from the statement of the witness and his evidence proving the entire requires corroboration just as much as his other evidence. The being so, the entries in the books proved by this witness cannot be relied upon as corroboration of his evidence. 65. Would it be safe to convict the accused upon the evidence o this witness? The Tribunal appears to have thought that this witness's evidence was worthy of credit. But, in my view, the evidence of this witness is far from reliable. As I have already said, he deliberately attempted to deceive the court when hi said that, when it was first suggested to him in November, 1943 that an inflated price should be shown in the invoice, he at once went to the office of the Ghee Supply Company. This statement cannot possibly be true, because he had to admit that he has entered into four or five other previous transactions in which inflated prices must have been shown in the invoices and in which he had paid differences to the broker or to the Ghee Supply Company. This part of the witness's evidence is on the face of it untrue. 66. Further, the witness had to admit that he entered into similar transactions with other brokers acting for principals other than the Ghee Supply Company. As I have pointed out, in at least one case, he admitted that he shared the difference between the inflated price and the contract price with the broker. 66. Further, the witness had to admit that he entered into similar transactions with other brokers acting for principals other than the Ghee Supply Company. As I have pointed out, in at least one case, he admitted that he shared the difference between the inflated price and the contract price with the broker. If this was a dishonest transaction, then the witness, on his own showing, was thoroughly dishonest. It appears to me that the evidence of this witness is most suspicious and unreliable and I am wholly unable to hold that the conviction of the accused can be based upon it without corroboration. His evidence is just the type of evidence that requires corroboration and as I have said, that corroboration is not forthcoming. 67. As I have stated earlier, the case for the defence was that this transaction through a broker, in which an apparently inflated price was shown in the invoice sent by the original seller, was a perfectly honest transaction. The real transaction was a sale by the original seller to the broker and a re-sale by the broker as principal to the ultimate purchaser. The original seller was in fact not asked to show an inflated price. He was merely asked to show in his invoice the price agreed upon between the broker and the ultimate purchaser. The original seller, according to the evidence of some brokers, invoiced the goods, at the higher price to save another invoice by the broker. The (sic) in price was, according to the defence suggestion, (sic) payable to the broker because that represented the profit his re-sale to the ultimate purchaser, the so-called principal. 68. That such transactions frequently took place on the ghee market at Calcutta is clear even from the evidence of P.W. 1 number of instances were put to him from his own books and had to admit that such transactions did take place, though he did not admit that that was the customary form of transaction. (sic) learned Advocate-General, who appeared for the Respondents (sic) us, had to admit that there was a body of evidence wing that transactions of the kind which I have stated sequently occurred on the ghee market. 69. (sic) learned Advocate-General, who appeared for the Respondents (sic) us, had to admit that there was a body of evidence wing that transactions of the kind which I have stated sequently occurred on the ghee market. 69. Some of the witnesses called for the prosecution went as far to state that by custom a broker on the ghee market was not fact a broker at all but was a principal and that all transactions in which he was interested took the form of the impugned transactions with the Ghee Supply Company. 70. Mr. Sarat Chandra Bose argued that the evidence for the (sic) itself showed that brokers on the ghee market acted variably as principals and that the goods were invoiced to the (sic) purchaser, not at the price at which the broker had purchased them from the original seller, but at the price at such the broker had sold to the ultimate purchaser. Though (sic) invoice was an invoice from the original seller and showed a ice greater than that to which he was entitled, nevertheless the transaction was perfectly honest as the original seller was bound make good the difference to the broker, as that represented his profit on the re-sale. 71. The Tribunal were not satisfied that such was the custom of (sic) ghee market in Calcutta. If such a custom exists it does (sic) to be a very strange one and the result of it would be that a (sic) would make large profits without them being disclosed in (sic) document made by him. On the other hand, it seems clear at when such transactions did take place the original sellers (sic) enter in their books the payment of the difference in price to e broker, though it would appear that no receipts for such (sic) were given. On the evidence I am not prepared to (sic) that business on the ghee market was invariably conducted r so-called brokers in the manner suggested by the defence. (sic) the evidence clearly shows that such transactions frequently occurred and even P.W. 1 has to admit that that was so. 72. If such transactions did occur, it may well be that the transactions by which the Ghee Supply Company obtained ghee or the Government of India through Gangadas Chandak were of such a nature. (sic) the evidence clearly shows that such transactions frequently occurred and even P.W. 1 has to admit that that was so. 72. If such transactions did occur, it may well be that the transactions by which the Ghee Supply Company obtained ghee or the Government of India through Gangadas Chandak were of such a nature. Where Gangadas Chandak or his partners (sic) employed, no direct payment of the differences was ever made the Ghee Supply Company. The payments were made Gangadas Chandak. But it is suggested that the entries in (sic) books of P.W. 1 and other brokers show that the payments (sic) in fact to the Ghee Supply Company through (sic) Chandak. (sic) receipt for such payments signed by a one on behalf of the Ghee Supply Company, however has been produced and there is no evidence that the payments, which were admittedly made to Gangadas Chandak, were ever handed over to the Ghee Supply Company. Further, the defence contend that the entries (sic) the prosecution rely upon as showing that payments were ma to the Ghee Supply Company through Gangadas Chandak mere show that they were payments to Gangadas Chandak in respect of transactions with the Ghee Supply Company. The fact (sic) the prosecution failed to show that any of these payments four their way to the Ghee Supply Company is a great weakness their case. The Tribunal seemed satisfied that the payments Gangadas Chandak were payments to the company. But appears to me that that is based on pure speculation. Gangadas Chandak may have handed over the moneys paid in respect differences to the Ghee Supply Company, but there is (sic) evidence whatsoever that he did so. 73. According to the evidence of a number of the witnesses call by the prosecution, these transactions, in which differences we paid to Gangadas Chandak were customary transactions on (sic) ghee market and that these payments were perfectly hone payments and were sums actually earned by Gangadas Chandak as principal. This method of doing business does (sic) considerable suspicion, but the possibility that these transaction were honest transactions and of frequent occurrence in the ghee market cannot be overlooked. 74. There is of course another possibility and that is that the inflation of the price in the invoices was a device between the broker and the original seller to cheat the ultimate purchase. 74. There is of course another possibility and that is that the inflation of the price in the invoices was a device between the broker and the original seller to cheat the ultimate purchase. The broker, for example, might purchase at the market rate (sic) Rs. 125 per maund. If the market rose during the day, (sic) witnesses said it frequently did, the broker might represent t his principal that the price was higher than that at which (sic) actually brought on their behalf. By arrangement between the broker and the original seller an inflated price could be shown (sic) the invoice and the difference between the inflated price and the contract price could then be shared between the original seller and the broker. As I have already stated, there was an entry (sic) the book of P.W. 1 showing that a transaction had taken place in which the original seller and broker had shared the different (sic) that form of transaction might well be entered into to cheat 5 broker's principal. In the present case, as I have said, all payments of differences were made to the broker and there is ways the possibility that he had arranged this inflation of ices with the original sellers in order to cheat his principals d ultimately the Government of India. Even if that be the (sic) view of the transactions, this prosecution is bound to 1, because the directors of the Ghee Supply Company would no parties to such cheating and there is no charge of cheating against Gangadas Chandak. The only charge is that of (sic) between the directors and Gangadas Chandak and if (sic) directors were not guilty then Gangadas Chandak alone could never be guilty of conspiracy. There is no allegation that (sic) conspired with anyone else. 75. For the reasons which I have given I am not satisfied that it could be safe to convict solely upon the evidence of P.W. 1 and I have stated, his evidence is not corroborated on this part of e case. 76. There is no allegation that (sic) conspired with anyone else. 75. For the reasons which I have given I am not satisfied that it could be safe to convict solely upon the evidence of P.W. 1 and I have stated, his evidence is not corroborated on this part of e case. 76. A large number of brokers were also called with a view to lowing that they also entered into similar transactions with the ghee Supply Company through Gangadas Chandak, the broker, heir evidence was intended to show that the prices in their voices were inflated and that the differences between the inflated prices and the contract prices were paid to the Ghee Supply company through the broker. 77. The majority of these witnesses turned hostile and the evidence of a number of them is wholly in favour of the defence. They would have the court believe that the transactions were of (sic) type ordinarily entered into on the ghee market, that is, transactions with a broker as principal. Certain of the witnesses supported the prosecution in their evidence-in-chief and then (sic) from their evidence when cross-examined. These witnesses cannot possibly be regarded as reliable witnesses and he only safe course to adopt with them is to disregard their evidence. But even if their evidence, when in favour of the prosecution, be accepted, then it has to be conceded that it is evidence of accomplices requiring corroboration. These witnesses referred to entries in their books, but there was no independent witness who gave any evidence corroborating the evidence given by these brokers implicating the accused. On the contrary, the majority of these brokers, particularly in cross-examination, (sic) from their statements in their examination-in-chief and gave evidence wholly in favour of the defence. The Tribunal was of opinion that these witnesses had been won over, but even if they had, that cannot assist the prosecution. The fact that a witness is capable of giving two completely different versions of a transaction throws the gravest doubt on his credibility s reliability. Further, the prosecution is in this dilemma, that portions of the evidence of these brokers is accepted, then (sic) evidence clearly makes them accomplices and makes corroborate of their evidence essential. The reasons which I have given declining to convict on the evidence of P.W. 1 apply with greater force to the evidence of these other witnesses. Further, the prosecution is in this dilemma, that portions of the evidence of these brokers is accepted, then (sic) evidence clearly makes them accomplices and makes corroborate of their evidence essential. The reasons which I have given declining to convict on the evidence of P.W. 1 apply with greater force to the evidence of these other witnesses. They the main contradicted themselves hopelessly and showed (sic) they were wholly unreliable and untruthful. In any event, (sic) portions of their evidence as are in favour of the prosecute require corroboration and there is no such corroboration. 78. I do not think it is necessary to deal in detail with evidence of these other merchants. They were called to supp and corroborate P.W. 1, but most of them were obviously out help the defence if they could. A number of them were (sic) even cross-examined and the Tribunal seems to draw from the fact an inference adverse to the defence. Why should count for the defence cross-examine any witness who has said not be damaging to his client? The Tribunal appears to have without that if some of these witnesses had been cross-examined, (sic) defence could have shown that the custom which they set up (sic) established. But it must be remembered that the accused no prove nothing at all. It is for the prosecution to prove beyond all reasonable doubt that the accused are guilty. 79. Two witnesses, Brijmohan Bhukmaria, P.W. 18 and Cha Chandra Pal, P.W. 6, were called, who stated that they h acted as brokers for the Ghee Supply Company. As I ha already stated, the Tribunal was of opinion that these to witnesses were partners with Gangadas Chandak and that would appear to be so. They gave evidence of the same kind transactions, though it seems that differences were ever paid them. In each case the differences appear to have been paid Gangadas Chandak. These witnesses were not cross-examination and again the Tribunal appears to draw an inference adverse the accused from that fact. The Tribunal appears to has thought that these two witnesses could have established the custom alleged by the defence, if such custom existed and the fact that they were not cross-examined suggested that the defence was afraid to ask them anything. No inference adverse to the defence can be drawn from the fact that these witness were not cross-examined. The Tribunal appears to has thought that these two witnesses could have established the custom alleged by the defence, if such custom existed and the fact that they were not cross-examined suggested that the defence was afraid to ask them anything. No inference adverse to the defence can be drawn from the fact that these witness were not cross-examined. They had said little in support of the prosecution and any counsel would be extremely ill-advised (sic) cross-examine such witnesses unless he was sure what the answers would be. It must be remembered that these (sic) witnesses were called for the prosecution and counsel for (sic) defence would have little reason to believe that they would openly assist the defence. 80. A number of these witnesses had been previously examined u/s 164 of the Code of Criminal Procedure and portions of heir previous statements were put to them. The witnesses did lot agree that their earlier statements were true and some of hem alleged duress or coercion. In any event, statements made previously u/s 164 are not substantive evidence, though the Tribunal seems to have regarded them as such. Such statements would only be used to contradict the witness, which of course they did, but that could not assist the prosecution. The witnesses were prosecution witnesses and it could not possibly assist the prosecution to discredit them. That, however, was the only legal effect of putting earlier statements to these witnesses. They were shown to be unreliable and corroboration became more accessory than ever. 81. In my view, the evidence called by the prosecution to show that in these transactions carried out through Gangadas Chandak as a broker the Government was cheated has not been established. The evidence is discrepant and that of most witnesses wholly unreliable. The evidence of P.W. 1, who was the most favourable witness for the prosecution, is wholly uncorroborated and that being so, it has not been established that in these transactions entered into with the purchasers, through Gangadas Chandak as broker, the price was deliberately inflated in order to cheat the Government. 82. The prosecution also called evidence to show that there were certain transactions directly between the sellers and the Ghee Supply Company. In these transactions it was suggested that the sellers had invoiced the goods at an inflated price. 82. The prosecution also called evidence to show that there were certain transactions directly between the sellers and the Ghee Supply Company. In these transactions it was suggested that the sellers had invoiced the goods at an inflated price. They were paid that inflated price and it is said that the buyers paid the difference to the Ghee Supply Company. In this type of transaction there can be no question of a custom which could possibly explain an inflation of the price in the invoice. If the prices given in the invoice were inflated, then the transactions must inevitably have been dishonest. [The learned Chief Justice here dealt with the evidence on the point and proceeded as follows.] 83. The learned Advocate-General, who appeared on behalf of the prosecution before us, was constrained to admit that, upon the evidence produced, it would be difficult, if not impossible, to sustain a conviction. He had to concede that the agreement, Ex. 55, had not been properly proved and neither had the invoices upon which the whole case rested. The learned Advocate-General had also to admit that the register, which was produced to show what had been done with respect to each invoice, was also not properly proved and he asked the Court to send the case back u/s 428 of the Code of Criminal Procedure for further evidence. 84. It appears to me that this section of the Code of Criminal Procedure was not intended to meet a case of this kind. It should no in my opinion, be invoked to give the prosecution a second chance of proving their case. Where, by some oversight or some difficulty, some evidence was not produced, then an appellate court might be asked to send the case back for taking sue evidence. Here, we are asked to send the case back, because the prosecution failed to call the relevant evidence on the essential parts of their case. It cannot be said that this prosecution was rushed, because the case lasted from September 11, 1945, until judgment was delivered on March 1, 1948. The case followed leisurely course and evidence was actually commenced (sic) December 14, 1945 and examination of the accused was no concluded until July 26, 1947. The Public Prosecutor (sic) his argument on August 20, 1947 and did not actually conclude his argument until September 3, 1947. The case followed leisurely course and evidence was actually commenced (sic) December 14, 1945 and examination of the accused was no concluded until July 26, 1947. The Public Prosecutor (sic) his argument on August 20, 1947 and did not actually conclude his argument until September 3, 1947. Arguments for the defence began on September 4, 1947 and did not conclude until September 27, 1947. It is true that during part of this time Calcutta was in a disturbed state, but even so the order-sheet shows that there was ample time for dealing with every possible point in this case. Even, in spite of the time taken, the prosecution wholly failed to establish the essential parts of their case and that being so, I can see no ground whatsoever for sending the case back for further evidence. 85. It was also suggested that if the case was sent back, then witnesses could be called to corroborate the evidence of witnesses whom I have held to be accomplices. Why such evidence, if available, was not called when the case was heard, I cannot imagine. Surely it must have been known to the prosecution that a court, as a rule, will not convict upon the evidence of accomplices unless that evidence is corroborated by other independent testimony. Nevertheless, no attempt was made to call such independent testimony. As the necessity and the nature of such independent testimony has been indicated in this judgment, I think it would be dangerous now to allow the prosecution to call further evidence. Even if such further evidence was called, the weight to be attached to it would be problematical. It would be dangerous in the extreme to rely upon such evidence which would be called to fill in obvious gaps in the case for the prosecution. 86. Further, it seems to me that the Tribunal, as constituted, cannot possibly try a case of this kind efficiently. When the Tribunal was first constituted it consisted of Mr. M.H.B. Lethbridge as President and Lt.-Col. N.M. Joshi and Mr. N.C. Basu as members. Lt.-Col. Joshi appears to have retired from the Tribunal before December, 1945, as, on December 10, 1945, the Tribunal consisted of Mr. Lethbridge, Mr. P.R. Barucha and Mr. N.C. Basu. On May 14, 1946, Mr. Lethbridge apparently went on leave and handed over formal charge to Mr. Barucha. Mr. N.M. Joshi and Mr. N.C. Basu as members. Lt.-Col. Joshi appears to have retired from the Tribunal before December, 1945, as, on December 10, 1945, the Tribunal consisted of Mr. Lethbridge, Mr. P.R. Barucha and Mr. N.C. Basu. On May 14, 1946, Mr. Lethbridge apparently went on leave and handed over formal charge to Mr. Barucha. Mr. Ispahani was then appointed President and from June 1, 1946, until September 11, 1946, the Tribunal consisted of Mr. Ispahani, Mr. Barucha and Mr. Basil. By November 11, 1946, Mr. Lethbridge had returned from leave and he resumed the office of President of the Tribunal in place of Mr. Ispahani who took no further part in the proceedings. He remained President of the Tribunal until June or July, 1947, when he left (sic) Mr. Barucha became President and Mr. E.M. Joshi became (sic) member in place of Mr. Barucha. From that date to the date of judgment the Tribunal consisted of Mr. Barucha as President and Mr. Joshi and Mr. Basu as members. Further, the order-meet makes it clear that Mr. Basu was frequently absent, due, it is said, to unavoidable causes, but nevertheless the proceedings continued without interruption. The legislation under which this Tribunal was constituted allows changes of this kind in the personnel of the Tribunal and allows the Tribunal to function in the absence of one of its members. Although the legislation allows such a course I find it difficult to believe that a Tribunal sitting in this manner can possibly efficiently try a case of this kind. How can members of a Tribunal form an opinion when they are not present throughout the proceedings. As I have said, the President changed no less than three times and the third member of the Tribunal, Mr. Joshi, sat for the first time in July, 1947, practically two years after the proceedings had started. 87. Further the President was permitted to take long leave during the progress of the case and what is more amazing still he was allowed to resume the office of President on his return from leave. This is indeed a strange procedure, particularly when it is remembered that the absence of a Judge from a Division Bench of a High Court for an hour during the conduct of a case would be enough to vitiate a judgment. This is indeed a strange procedure, particularly when it is remembered that the absence of a Judge from a Division Bench of a High Court for an hour during the conduct of a case would be enough to vitiate a judgment. Even lay arbitrators must be present throughout the proceedings before them, but a case before this Tribunal can continue in the absence of the President or one of the members and the President or any member may actually take leave during the continuance of the case. 88. It appears to me that it is unfair to ask members of a Tribunal to decide cases of this kind unless they are required to be present throughout the whole trial. There is no guarantee that, if this case was sent back, the three members of the Tribunal at the date when judgment was given would be available to hear any further evidence. For these reasons, therefore, I am bound to hold that no case has been made out for referring this case back for hearing further evidence u/s 428 of the Code of Criminal Procedure. 89. In my judgment, the prosecution in this case wholly failed (sic) establish the guilt of the accused persons. There is a good (sic) of evidence called by the prosecution which tends to establish (sic) case set up by the defence. The prosecution contend that the witnesses were obviously hostile. But even if that be so, the case for the prosecution is unproved. It appears to me that the Tribunal in many instances has inferred that the case for the prosecution must be true because the ghee merchants called b the prosecution turned hostile and so far from supporting the prosecution supported the defence. 90. The prosecution treated a number of the witnesses as hostile and with regard to others they were permitted to put question in leading form. 91. It appears to me that most of the witnesses called were discredited or favoured the defence. The only witness who throughout his evidence supported the prosecution was (sic) Ratan, P.W. 1. But, for reasons which I have already given, he cannot be regarded as either a truthful or a satisfactory witness and in any event, he was an accomplice, whose evidence ii wholly uncorroborated. That being so, the prosecution wholly failed to establish their case and the accused are therefore entitled to be acquitted. 92. But, for reasons which I have already given, he cannot be regarded as either a truthful or a satisfactory witness and in any event, he was an accomplice, whose evidence ii wholly uncorroborated. That being so, the prosecution wholly failed to establish their case and the accused are therefore entitled to be acquitted. 92. In the result, therefore, I would allow these appeals, set aside the convictions and sentences and acquit each of the Appellants. The Appellants need not surrender to their bail and their bail bonds are cancelled. If the fines or any portions thereof have been paid, such must be refunded forthwith. Das Gupta, J. 93. I agree.