JUDGMENT 1. - The present three criminal appeals arise out of special criminal case No. 5/1968 (22/1973). The learned Special Judge under his judgment dated February 17, 1981, convicted and sentenced the four accused-appellants as under ; Name of accused-appellant Convicted under Section Sentence passed 1. Laxman Singh 120-B, 420, 468, 471, 477A r/w 120-B IPC. Six months' R.I. and a fine of Rs. 100/- under each count, or in default further RI for one month. Under Section 5(1) r/w Section 5(2) of Prevention of Corruption Act r/w 120-B IPC One year's RI and a fine of Rs. 100/- under each count and in default of payment of fine, to further suffer two months rigorous imprisonment. 2. Mahesh Chand Sharma 120-B, 420, 468, 471, 477A IPC r/w 120-B IPC Six months' rigorous imprisonment and a fine of Rs. 100/- under each count or in default of payment of fine to suffer further rigorous imprisonment of one month. 5(l)(d)(2) of Prevention of Corruption Act, 1947 r/w 120-B IPC One year's R.I. and a fine of Rs. 100/-, or in default of payment of fine to further suffer two months rigorous imprisonment. 3. Vishnu Dutt Sharma 120-B, 420, 468, 471 and 477A r/w 120-B IPC Six months' R.I. and a fine of Rs. 100/-, or in default of payment of fine to further suffer one month's R.I. under each court. 5(I)(d)(2) of Prevention of Corruption Act, 1947 r/w 120 B IPC One year's R.I. and a fine of Rs 100/- or in default of payment of fine to further suffer two months' R.I. 4. Gurdev Singh 120-B, 420, 468, 471. 477A, IPC r/w Section 120-B IPC and Section 165A IPC Six months' R.I. and a fine of Rs 100/-. under each count, or in default of payment The substantive sentences of all the accused-appellants were ordered to run concurrently. 2. A connected case (Special Cr. Case No. 6/68) was decided by the learned Special Judge under his judgment dated May 11, 1977. In the aforesaid case two of the accused-appellants, namely, Laxman Singh and Mahesh Chand Sharma alongwith Ram Prakash, proprietor of M/s Radionics were also accused persons. In that case the above named two accused-appellants. 2. A connected case (Special Cr. Case No. 6/68) was decided by the learned Special Judge under his judgment dated May 11, 1977. In the aforesaid case two of the accused-appellants, namely, Laxman Singh and Mahesh Chand Sharma alongwith Ram Prakash, proprietor of M/s Radionics were also accused persons. In that case the above named two accused-appellants. Laxman Singh and Mahesh Chand Sharma as well as Ram Prakash were convicted and sentenced under different provisions of the Indian Penal Code and that case related to the alleged bogus payment of a sum of Rs. 3900/- said to have been paid to Ram Prakash for the alleged repairs/modification/conversion of B.C. 375 (E) transmitter-sets at the rate of Rs. 65/- per set. That case has been disposed of today under separate judgment in which each of the accused-appellants of that case have been acquitted. The present case relates to three B.C. 375 (E) transmitter-sets and a sum of Rs. 195/-. It is the case of the prosecution that during the period from May 14, 1953 to October 26, 1953, four accused-appellants conspired to do illegal act for obtaining pecuniary advantage and prepared false bills and vouchers. The allegation is that accused-appellant Laxman Singh with the help of other accused-persons got prepared and got verified certain bills of the amount of Rs. 195/- and on its basis drew from the State Treasury modification/conversion charges of Rs. 195/- for three sets at the rate of Rs. 65/- each set, although the aforesaid sets during the relevant period were not available for modification/conversion as they had already been modified/ converted/earlier occasion. The case of the prosecution is that in the year 1952, 83 BC 375 (E) transmitter-sets have been purchased from Army Disposal Depot situated at Kosipur and out of them one set was defective and thus 82 sets remained. During that period there was dacoity menace in the various parts of the State of Rajasthan such as Dholpur, Jaisalmer, and Bhilwara etc. and it was not possible to operate the above number of sets on 24 volts and it was thought proper to get them converted to 12 volts. Therefore, those 82 sets were given for modification/conversion to the following firms-as under:- 1. Universal Radios 53 2. Radio Centre 7 3. Rajan Radios 9 4. Punjab Radios 5 5. Radiowala 1 6. India Radiogram Corpn. Jodhpur. Therefore, those 82 sets were given for modification/conversion to the following firms-as under:- 1. Universal Radios 53 2. Radio Centre 7 3. Rajan Radios 9 4. Punjab Radios 5 5. Radiowala 1 6. India Radiogram Corpn. Jodhpur. 7 Total 82 For modification/conversion of the above sets the quotations had been invited in between the period 11th May, 1953 to October 26, 1953 and all the sets were modified / converted from 24 volts to 12 volts and out of repair charges at the rate of Rs. 65/- per set, the payment was not made for 11 sets. Therefore, no set was available for modification/conversion which could be given to Gurdev Singh, accused appellant partner of Radio Centre, MI Road, Jaipur, and the accused-persons hatched conspiracy to cheat the Wireless Department of the Police Department of the Government of Rajasthan of a sum of Rs. 195/-. The accused-persons agreed to do illegal act in order to obtain pecuniary advantage of Rs. 195/- by illegal and corrupt means and the means agreed and adopted by them was to prepare false bills and records with regard to the conversion of three BC 375 (E) transmitter sets from 24 volts to 12 volts with ulterior motive to cheat the Government of Rajasthan. 3. It may be stated that above fact alongwith the fact of 60 BC 375 (E) transmitters sets came to the notice of Kashi Prasad, who lodged a report on April 2, 1953 at Police Station Kotwali, Jaipur. A case was registered and after investigation charge sheet was filed before the learned Special Judge, Jaipur on February 4, 1964 under Section 420, 409, and 120-B IPC read with Section 5 (2) of the Prevention of Corruption Act, 1947 (for short PC Act) against the three accused-appellants, namely -Laxman Singh, M.C. Snarma and V.D. Sharma. In that charge sheet Gurdev Singh and one Ram Prakash, who is accused-appellant in Appeal No. 7/77 were only cited as prosecution witnesses. Learned Special Judge had taken cognizance and charges were also framed but somehow charge under Section 5 (l)(d) of the PC Act was not framed. The evidence of the prosecution including the statement of Ram Prakash and Gurdev Singh, was recorded. But thereafter, an application was filed on behalf of the prosecution that charge under Section 5 (1) (d) of the PC Act may also be framed. The evidence of the prosecution including the statement of Ram Prakash and Gurdev Singh, was recorded. But thereafter, an application was filed on behalf of the prosecution that charge under Section 5 (1) (d) of the PC Act may also be framed. An application was also filed on behalf of the accused-appellants that charges which were framed against them could not be tried by the learned Special Judge and the Sessions Judge could only try them after commitment of the case to him by the Magistrate. The learned Special Judge under order dated May 19, 1967, held that in the absence of commitment, he was not competent to try the offences under Section 409, 420, 468 and 120-B IPC and the charge-sheet was returned to the prosecution with the direction to produce it if so advised before the competent court. After a period of more than a year, it was only on July 24, 1968, that charge-sheet was split into two (i) in respect of 60 BC 375 (E) transmitter sets of which Rs. 3900/- are said to have been illegally taken by Ram Prakash alongwith accused-appellant Laxman Singh and M C. Sharma who hatched conspiracy and the other charge sheet was filed in respect of three transmitter-sets with which we are concerned and the amount of Rs. 195/- was taken in respect of modification/conversion charges of the three set at the rate of Rs. 65/- per set. An objection was raised before the learned Special Judge that the charges could not have been framed under Section 5 (1) (d) of the PC Act and the learned Special Judge, both in Special Cr. case No. 5/68 and Special Cr. case No. 6/68, under his order dated September 24, 1968 dismissed the application and held that the charge sheet was maintainable inspite of the order of discharge passed in the previous trial. Before the learned Special Judge an argument was advanced that it was not expedient that the accused be tried for the offences which were committed as long back as in March, 1954 The learned Special Judge repelled this argument also. Before the learned Special Judge an argument was advanced that it was not expedient that the accused be tried for the offences which were committed as long back as in March, 1954 The learned Special Judge repelled this argument also. Thereafter, both the cases were tried and decided one vide judgment dated May, 11 1977, against which appeal No. 197/77 was filed by Laxman Singh, M.C. Sharma and Ram Prakash and the other case could be disposed of by the learned Special Judge under his judgment dated February 17, 1981, i.e. almost after four years of the disposal of the previous case. 4. Before I take up the case on merits, and arrive at the conclusion whether the various charges stand proved against the accused-appellant or not, I consider it proper to deal with the legal objections raised by the learned counsel for the accused-appellants. They are as under : I. Whether the accused having been discharged by the learned Sessions Judge on earlier occasion on the ground that offence other than offence under Section 5 (2) of Prevention of Corruption Act could only be tried on commitment and the case was not committed and the learned Sessions Judge having refused to frame charge under Section 5 (2) of PC Act, a second trial on warranted by law. II. Whether the trial by the learned Special Judge, Rajasthan CBI Cases, Jaipur, is without jurisdiction because there were more than one Special Judge for the Jaipur city area and it has not been specified which of the two Special Judges shall try the case and the effect of failure to specify the Special Judge, there being more than one Special Judge for the area, is that the trial of the accused-appellants was without jurisdiction? III. The incident is of the year 1953 and the FIR was lodged in the year 1957 and the trial of the case took about 24 years and the accused have been denied speedy trial, if so, what is its effect? 5. I will take up the above points in the order in which they have been framed.Re : 1. It has already been stated earlier that the incident is in relation to the year 1953 and to be more precise case is concerned, the period is from October 26, 1953 to May 31, 1954. 5. I will take up the above points in the order in which they have been framed.Re : 1. It has already been stated earlier that the incident is in relation to the year 1953 and to be more precise case is concerned, the period is from October 26, 1953 to May 31, 1954. The case of the prosecution is that the three accused-appellants conspired together to do an illegal act for obtaining illegal pecuniary benefit and forged the records of the wireless department. As per the case of the prosecution Laxman Singh accused-appellant with the help of other accused-during the aforesaid period got prepared and verified certain false bills and on their basis drew from the State Treasury re-moddeling charge of 3 BC 375(E) transmitter sets amounting to Rs. 195/- at the rat of Rs. 65/- per set Kashi Prasad lodged a report on April 2, 1957 at Police Station Kotwali Jaipur and a case under See. 409 IPC was registered and investigation was set in motion, which took almost 7 years to complete the same. A charge-sheet was filed before the learned Special Judge, Jaipur city on February 4, 1964 under Section 420, 409, 468 and 120-B IPC as well as Sec 5(2) of the PC Act against the accused-appellants Laxman Singh and M.C. Sharma and V.D. Sharma. In that charge-sheet accused-appellant Gurdev Singh alongwith one Ram Prakash were cited as prosecution witness. Learned Special Judge (D.C. Sharma) took cognizance of the offence Charges were framed on June 15, 1964 by him under Section 409, 420, 468 and 120-B IPC but no charge under Section 5(2) of PC Act was framed. The accused in that case including the accused-appellants namely Laxman Singh, V.D. Sharma and M C. Sharma (as stated earlier Gurdev Singh was not the accused in that case and he was cited as prosecution witness) pleaded not guilty. Some of the prosecution witnesses were examined and on May 18, 1967 an application was made on behalf of the accused-persons challenging the validity of the trial on the ground that they could not be tried by the Sessions Court on the charges under Sec 469, 420 and 120-B IPC unless they were committed to the court of session. Some of the prosecution witnesses were examined and on May 18, 1967 an application was made on behalf of the accused-persons challenging the validity of the trial on the ground that they could not be tried by the Sessions Court on the charges under Sec 469, 420 and 120-B IPC unless they were committed to the court of session. An application was filed on behalf of the prosecution that a charge under Section 5(2) of the PC Act also framed but the then Special Judge Shri G M Mehta who was later on elevated to the Bench of this Court, rejected the application on May 19, 1967 filed on behalf of the prosecution. The said order reads as under:- "...... There is no good ground to frame charge under Section 5(2) of the PC Act against the accused for three reasons; the first is that though the accused were discharged for the said offence by this Court on 15-6-64, the State preferred no revision against the said order and felt satisfied with the charges that were framed against the accused. The second is that no new material has come before the court to add to the charge already framed against the accused. The third is that the charge already framed against the accused cover the allegations against them. I do not therefore feel inclined to add to the charges already framed by this Court against the accused persons." 6. As a result of the aforesaid order only such charge remained which could be tried by the Sessions Judge on commitment to it. The application filed on behalf of the accused was allowed and it was held that the court was not competent to try the aforesaid offences. The charge-sheet returned to the prosecution to file the same if so advised before the competent Court. It was after a period of more than one year i e. on July 24, 1968, that the charge-sheet was split into two charge-sheet which were presented before the learned Special Judge Jaipur City, Jaipur. Admittedly there are no now facts and the charges are also the same but the only difference was that two more persons were arrayed as accused, namely Gurdev Singh and Ram Prakash who were earlier cited as prosecution witnesses. 7. Admittedly there are no now facts and the charges are also the same but the only difference was that two more persons were arrayed as accused, namely Gurdev Singh and Ram Prakash who were earlier cited as prosecution witnesses. 7. It was contended by the learned counsel for the accused-appellant that in the earlier cases accused-appellants Laxman Singh and M.C. Sharma having been discharged, no fresh chargesheet could have been filed even by splitting one charge-sheets into two charge-sheets moreso, when both the charge-sheets were based on the same facts and there was no fresh material on which the other charge-sheets could have been filed. In support of his contention, learned counsel for the appellants has placed reliance on the case of Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 , and moreso, to its para 59, in the majority judgment as S.K. Das J. had given dissenting judgment. The facts of the case are contained in para 40 and the relevant part is in para 59 of the judgment. The learned Judge approved the view taken in similar cases referred to in the aforesaid judgment, by the various High Courts that is nothing in law which prohibits to entertain second complaint where previous complaint has been dismissed under Section 203 Cr. PC. The learned Judge further said- "I also accept the view that as a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under s. 204(1) of the Code of Criminal Procedure exceptional circumstances must exist for the entertainment of a second complaint on the same allegations in other words, there must be good reason why the Magistrate thinks that there is sufficient ground for proceeding with the second complaint, when a previous complaint on the same allegations was dismissed under s. 203 of the Code of Criminal Procedure. The court referred to Queen Empress v. Dolegobind Dass, ILR 28 Cal 211 , wherein Maclean C J. said:- " I only desire to add that no Presidency Magistrate ought in my opinion, to re-hear a case previously dealt with by a Magistrate of co-ordinate jurisdiction upon the same evidence only, upless he is plainly satisfied that there has been some manifest error or manifest miscarriage of justice". It can therefore be said that if there has been manifest error or miscarriage of justice, even on same facts a second complaint is not barred. A similar objection was raised during the trial of the case on behalf of the accused appellants before the learned Special Judge and the learned Special Judge under his order dated September 24, 1968, repelled the contention not only in this case but also in the other special criminal case No. 6/68 and held that even on facts which are available on record the learned Special Judge instead of refusing to frame a charge under Section 5(2) of PC Act should have framed a charge under sec 5(2) of PC Act. As in the opinion of the learned Special Judge there has been manifest error apparent on the face of record giving rise to manifest miscarriage of justice in not framing charge against the accused under Section 5(2) of the PC Act in the previous trial and more than one reason has been given in dismissing the application filed on behalf of the accused-appellants that second trial is without jurisdiction. No revision against the aforesaid order of the learned Special Judge was taken before this Court. Though, I will under point regarding delay in trial will deal with the question as to what is the effect of such an inordinate delay of 24 years, but suffice it to say for the present that in the order dated September 24 1968, the learned Special Judge had dealt with this aspect of the matter also but to me it appears that by that time the Apex Court had not held that under Article 21 of the Constitution of India, speedy trial is a part of fundamental right of life and liberty, and what is the effect of denial of speedy trial. But so far as legal position is concerned, it cannot be said that it has any force. Re: II. 8. The contention of the learned counsel for the appellants is that there were more than one Special Judges for the same area i.e. Jaipur city on July 24, 1968 when the charge-sheet was filed, the one was Sessions Judge Jaipur City and the other was officiating Civil Judge and Addl. Sessions Judge with Head Quarters at Jaipur, for the whole of the Rajasthan which also included Jaipur city municipal limits. Sessions Judge with Head Quarters at Jaipur, for the whole of the Rajasthan which also included Jaipur city municipal limits. According to sub-section (2) of section 7 of Criminal Law Amendment Act, 1952, specification had to be made in the aforesaid provision by the State Government as to which of the two Special Judges should try which case. As there was no such specification the trial was without jurisdiction. In support of his contention, learned counsel as placed reliance on the case of Dr. Kailash Nath Haldiya v. State of Rajasthan, RLW 1974-428 , wherein a learned Single Judge of this Court had no doubt taken a view which has been cancassed by the learned counsel for the accused-appellants. But so far as the present case is concerned, in my opinion, the controversy stands at res by a decision of this Court in the same case, S.B. Cr. R No. 599/1971 against the order of Shri T.C Bhagat, Special Judge No. 2 Jaipur City, dated May 7, 1972. The learned Single Judge under his aforesaid judgment dated August 8, 1972, held that the case has been transferred under the orders of this Court and the general scheme of Criminal Law (Amendment) Act, 1952 makes it clear that a court of Special Judge is a court subordinate to the High Court and consequently it is within the power of the High Court to transfer a case from the court of one Special Judge to any other Special Judge. This court therefore, repelled the contention and said that the law is clear that the order of this court transferring a case from one special Judge to another Special Judge creates jurisdiction in the latter court in the same way as the transfer of a case by this court from one sessions division to another sessions division. Thus, in view of the aforesaid decision of this court the controversy does not survive and it cannot be said that any legal question remains to be adjudicated by this court in so far as the present case is concerned.Re III 9. Thus, in view of the aforesaid decision of this court the controversy does not survive and it cannot be said that any legal question remains to be adjudicated by this court in so far as the present case is concerned.Re III 9. The contention of the learned counsel for the accused-appellants is that because the trial of the case took almost 24 years after the alleged misappropriation/cheating and took about 20 years in the trial court in disposal of the case, right of the accused for speedy trial which right has been recognised by the Supreme Court under Art 21 of the Constitution of India as a fundamental right, has been denied to the accused-appellants and therefore, on this ground the conviction of the accused-appellants should be set aside and they should be acquitted, moreso when this appeal has been pending for about 9 years. It has already been said earlier that Supreme Court in the case of Hussainara Khatoon (Supra) has said that speedy trial is a part of fundamental right to life and liberty under Article 21 of the Constitution of India. So far as the aforesaid case of Hussainara Khatoon is concerned the court was primarily concerned with pre-trial release of the offender. The court said that if the court was satisfied after taking into account on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond it can safely release the accused on his personal bond. The court also laid down various factors to determine whether the accused has his roots in the community which would deter him from fleeing. Dealing with the word `shall be deprived of life and personal liberty according to the procedure prescribed by law, the court said that a procedure prescribed by law for depriving a person of his liberty cannot be `reasonable, fair or just `unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonable quick trial can be regarded as`reasonable, fair or just and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. No procedure which does not ensure a reasonable quick trial can be regarded as`reasonable, fair or just and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. It was a case where the accused was behind the bars and had not been released on bail during the trial. In the case of T.V. Vateslwaran v. the State of Tamil Nadu, AIR 1983 SC 361 , the court was dealing with a case of long delay in execution of sentence of death. The court said that the dehumanising factor of prolonged delay in the execution of a sentence of death has the consequential implication of depriving a person of his life in an unjust, unfair and unreasonable way as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except according to procedure established by law. The court further said that the appropriate relief in such a case is to vacate the sentence of death, Delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death. In the case of State of Bihar v. Uma Shankar Kotriwal and Ors., AIR 1981 SC 641 , which was a case under s. 3/7 of the Essential Commodities Act, 1953, there was a protracted trial running for 20 years. The High Court had quashed the proceedings and the Supreme Court refused to interfere The court said that it cannot be lost sight of the fact that the trial has not made much head-way even though no less than 20 years have gone by. Such protraction itself means considerable harassment to the accused not only to monetarily but also by way of constant attention to the case and repeated appearance in court, apart from anxiety. Such protraction itself means considerable harassment to the accused not only to monetarily but also by way of constant attention to the case and repeated appearance in court, apart from anxiety. The court also said - "It may well be that the respondents themselves were responsible in a large measure for the slow pace of the case inasmuch as quite a few orders made by the trial Magistrate were challenged in higher courts, but then there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage. In this view of the matter we do not consider the present case a proper one for our interference in spite of the fact that we feel that the allegations disclosed the commission of an offence which we regard as quite serious." 10. In S. Gain and Ors. v. Grindlays Bank Ltd., AIR 1985 SC 289 , the court was dealing with a case where an appeal against the acquittal was pending in the High Court. The accused were acquitted of the charge of obstructing the Bank officers from entering into the Bank premises. They were acquitted by the trial court and appeal against acquittal remained pending in the High Court for 6 years. The High Court allowed the appeal. The court placing reliance on its earlier Case of S. Veerabadran Chettiar v. E.V. Ramaswami Naicker and others, AIR 1958 SC 1032 wherein the court said that as the case has become stale it is not proper to direct further inquiry into he complaint which stood dismissed for last about 5 years, even if the High Court has wrongly disagreed with the view taken by the trial court with regard to the gist of the offence punishable under Section 341 IPC. In Madhesewardhari Singh and Anr. v. State of Bihar, AIR 1986 Patna 324 , the court said that the right under Article 21 of the Constitution to speedy public trial is identical in content with the express constitutional guarantee inserted by the Sixth Amendment to the American Constitution. The Sixth Amendment to the American Constitution in terms says "in all criminal-prosecutions, the accused shall enjoy the right to a speedy and public trial. The Sixth Amendment to the American Constitution in terms says "in all criminal-prosecutions, the accused shall enjoy the right to a speedy and public trial. Even on principle it is obvious that on the plain language of the Sixth Amendment to the American Constitution, the fundamental right of a speedy trial is not confined to any particular category of offences. The language employed is unfettered and without any such restriction. The court further said that the American precedent, which is the fountainhead of the concept of speedy public trial, has now consistently extended it without limitation to all offences and all criminal prosecutions. 11. In view of the aforesaid position of law, it cannot be disputed that the Apex Court has taken a view that speedy trial is a fundamental right and if there is unusual or abnormal delay in the trial of the case than the court has to take and should have taken into consideration the delay in the trial and if necessary quash the proceedings. But the question is as to whether if the trial is concluded and it has not been speedy trial, the conviction and sentence can be set aside? 12. In the instant case as said earlier the incident is of the year 1953, but came to the notice in the year 1957 and FIR was lodged in the year 1957. It can be said that only one charge sheet was filed and in that Gurdev Singh who is accused-appellant in this case, was cited as prosecution witness. It can be said that he alongwith others was examined as prosecution witness. So far as Gurdev Singh is concerned he did not support the prosecution case and said that he modified/repaired BC 375(E) transmitters and received Se amount of Rs 195/- at the rate of Rs. 65/- per set. It can be said that he alongwith others was examined as prosecution witness. So far as Gurdev Singh is concerned he did not support the prosecution case and said that he modified/repaired BC 375(E) transmitters and received Se amount of Rs 195/- at the rate of Rs. 65/- per set. It can also be said hat m the aforesaid trial of the Special Case under order dated May 19, 1968 the accused-appellants were discharged tor the reasons which have already been stated in this order and it was observed that the charge-sheet be returned to the prosecution with the direction to produce the same in the competent court, if so advised and it was thereafter that the charge sheet was Split into two others and one of them out of which the present appeal arises, Gurdev Singh was also shown as one of the accused persons and that charge-sheet was filed on July 24, 1968. Besides other objection before the learned Special Judge an objection was raised that it is not expedient that the accused be tried for offence which was committed as long as March 1954 and in the aforesaid case reliance was placed on the case of Ramekhal Tiwary v. Madan Mohan Tiwary and another, AIR 1957-1156 , wherein the accused in that case was discharged by the Magistrate of the offence under section 307 PC the matter was taken up to the Supreme Court and the Supreme Court held that it was not expedient that the appellant in that case should be tried after so much lapse of the time before the sessions court for offence committed a long back as on September 30, 1958. The Special Judge had said that the facts of that case were different inasmuch as in that case there was complete trial whereas in the present case the appellants had not faced the trial for various offences. It was observed by the learned Special Judge that it is no doubt true that the alleged offences were committed by the accused in the years 1953 and 1954 and a long period of fourteen to fifteen years has elapsed, but looking to the seriousness of the allegations against the accused the court did not feel inclined to throw away the charge-sheets and allow the accused to go without trial simply on account of long delay, specially when the cause of delay are not known. In my opinion the concept of speedy trial being a fundamental right under Article 21 of the Constitution of India came at a letter stage when the Supreme Court in the case of Hussainara Khatoon's case (supra) took that view and therefore by the time The learned Special Judge decided the case, such a view was not taken by the courts including the Apex Court. Be that as it may, the question as framed in Se earlier part of this judgment is as to whether it there has been delay in the trial and the trial has resulted in conviction can be said that the trial stands vitiated and accused-persons who have been convicted and sentenced are entitled for acquittal? 13. The aforesaid question was examined by the Supreme Court in the case of State of Maharashtra v. Champalal Puhjaji Shah, AIR 1981 SC 1675 the court was examining the case of acquittals by the High Court. The court in para 2 of its order mooted a question as to what is remedy if the trial is unduly delayed ? The court said that in United States where the right to a speedy trial is a constitutionally guaranteed right, the denial of a speedy trial has been held to entitle an accused person to the dismissal of the indictment or the vacation of the sentence. The court also said - "But in deciding the question whether there has been a denial of the right to a speedy trial, the court is entitled to take into consideration whether the defendant himself was responsible for a part of the delay and whether he was prejudiced in the preparation of his defence by reason of the delay. The court is also entitled to take into consideration whether the delay was unintentional caused by over-crowding of the court's docket or under-staffing of the Prosecutors. Strunk v. United States, (1873) 37 Law Ed. 2nd 56 is an instructive case on this point. As pointed out in the first Hussainara case ( AIR 1979 SC 1360 ) the right to a speedy trial is not an expressly guaranteed constitutional right in India but is implicit in the right to fair trial which has been held to be part of the right to life and liberty guaranteed by Article 21 of the Constitution. As pointed out in the first Hussainara case ( AIR 1979 SC 1360 ) the right to a speedy trial is not an expressly guaranteed constitutional right in India but is implicit in the right to fair trial which has been held to be part of the right to life and liberty guaranteed by Article 21 of the Constitution. While a speedy trial is an implicit ingredient of a fair trial, the converse is not necessarily true. A delayed trial is not necessarily an unfair trial. The delay may be occasioned by the tactic or conduct of the accused himself. The delay may have caused no prejudice whatsoever to the accused." The court also said that - "The question whether a conviction should be quashed on the ground of delayed trial depends upon the facts and circumstances of the case. If the accused is found to have been prejudiced in the conduct of his defence and it could be said that the accused had thus been denied on adequate opportunity to defend himself, the conviction would certainly have to go. But if nothing is shown and there are no circumstances entitling the court to raise a presumption that the accused had been prejudiced there will be no justification to quash the conviction on the ground of delayed trial only". It will therefore be clear that the court draw distinction in cases where the trial was not concluded and has been delayed and for the delay the accused has not been responsible and the accused has not employed delaying tactics and in cases where the trial has concluded and conviction has been recorded and sentence imposed. In the earlier type of cases despite the gravity of the offence, the court has taken a view that speedy trial being fundamental right, denial of it is sufficient to quash the prosecution whereas in the latter category of cases the court has said that before the conviction and sentence of an accused can be set aside it is further necessary to show that the accused had been prejudiced in his defence and unless prejudice is shown to have been caused, merely on the ground of delayed trial the conviction and sentence of the accused cannot be set aside. I will at a later stage of this judgment deal with this aspect of the case in order to see it as a result of delayed trial the case of the accused has been prejudiced. In my opinion, on the ground of mere delay in trial the conviction and sentence of the accused cannot be set aside, unless the accused can show that as a result thereof his case has been prejudiced. No doubt if on merits, which shall be hereinafter discussed no case will be made out, the matter will be different. No doubt the delayed trial may also be considered and is extenuating circumstance so far as the sentence to be awarded is concerned. Merits 14. Coming to the merits of the case, it appears from a perusal of the judgment of the learned Special Judge that he has convicted and sentenced the four accused-appellants on the basis of circumstantial evidence. It may be stated that there is no dispute that Laxman Singh was the Dy. Superintendent of Police/Officiating Superintendent of Police in the Wireless Branch of the Police Department in the year 1952-53 and accused-appellant Mahesh Chand Sharma was A.S.L in the Wireless Branch of the police department and was also the incharge of stores. V.D. Sharma was also ASI Wireless and was incharge of Stores. Gurdev Singh accused-appellant was the then Proprietor of Radio Centre Jaipur. It is not disputed that Gurdev Singh had submitted the bills for a sum of Rs. 195/- for modification/conversion charges of 3BC 375(E) transmitter sets from 24 volts to 12 volts & the amount was paid to him. But the case of the prosecution is that the aforesaid three sets were not available for modification/conversion, quotations were not invited and in facts no modification/conversion of the aforesaid three sets was done by Gurdev Singh and he submitted false bill. From Kosipur not only 82 BC 375 (E) transmitter-sets has been brought to Jaipur but there is material that other types of sets had also received from there. But there is no dispute between the parties that so far as BC 375(B) transmitter sets are concerned, 82 sets were there in the stock and only that number of sets had been brought from Kosipur and had been entered in the stock register. But there is no dispute between the parties that so far as BC 375(B) transmitter sets are concerned, 82 sets were there in the stock and only that number of sets had been brought from Kosipur and had been entered in the stock register. So far as the charge of conspiracy is concerned, there cannot be and there is ne direct evidence against the accused-appellants. A bare reading of section 120-A of the Indian Penal Code will show that conspiracy has been defined thereunder and when two or more persons agree to do or cause to be done (i) an illegal act or (ii) an act which is not illegal by illegal means, such an agreement is designed a criminal conspiracy. Under the proviso to that section no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. A charge of conspiracy like any other charge may be established either by direct evidence or such circumstances can be brought on record from which the court may raise presumption of a common concerted plan to carry out design of it. One of the grounds as appears from perusal of page 7 of the judgment of the learned Special Judge, is that the bills of 3-BC 375(E) transmitter sets were forged and that number of transmitter-sets was not available for modification or conversion. The crucial question is therefore whether 3 BC 375 (E) transmitter-sets could be available or not in the wireless branch of the police department for modification / conversion & could be given to Gurdev Singh, the proprietor of Radio Centre M I. Road Jaipur ? 15. For holding the charge of conspiracy as proved against the accused persons the learned Special Judge has placed reliance on the statement of PW 9 Bhenru Singh. The procedure for preparation of bills and for payment has been brought on record in the statement of PW 14 Bhagwatilal who was cashier in the wireless department. The procedure was that when the bill was verified by Store incharge then a bill was prepare and sent to treasury for payment and after the receipt of the payment, the payment was made. The procedure was that when the bill was verified by Store incharge then a bill was prepare and sent to treasury for payment and after the receipt of the payment, the payment was made. It has also come on record in the statements of witnesses that generally quotations were called for purchase of any item or for repairs or conversion/modification of any type of sets but looking to the urgency, even oral order was placed. In this connection reference can be made to the statement of Shyamlal PW 1 who was Accounts clerk in the wireless department. Therefore, the mere fact that no quotations were invited from Radio Centre of which accused-appellant Gurdev Singh was the proprietor for modification/conversion of 3 BC 375 (E) transmitter sets, by itself it cannot be a circumstance against any of the accused-appellants and it cannot lead to an inference that that number of the BC 375 (E) transmitter-sets were not given or could not be given for modification/conversion to Radio Centre of which Gurdev Singh was the proprietor. Even Sarjeet Singh Sodi PW 7 who was Wireless Superintendent in the year 1952 in the Directorate of Coordination, Police Wireless, Ministry of Home Affairs, New Delhi and who had come to Jaipur to check the wireless equipments has stated that besides BC 375 (E) transmitter-sets, other type of sets were also received from Kosipur and he checked them also. He checked them in the year 1952. No transmitter-set had been modified till then. Indra Singh Kanwar PW 8 who was incharge of workshop in the wireless department states that he had taken the charge of stores from Vishnu Dutt Sharma on May 3, 1954 and at that time he had taken 57 BC 375(E) transmitter-sets in his charge and rest of that type of sets had been issued to different wireless stations. He has clearly stated that these BC 375(E) sets were to be operated on 24 volts. Thus, even as per the prosecution case there were 57 BC 375(E) transmitter-sets which could be operated on 24 volts. It has come in the statement that the job and maintenance register which was maintained was not produced despite the application filed by the accused-appellants. Thus, even as per the prosecution case there were 57 BC 375(E) transmitter-sets which could be operated on 24 volts. It has come in the statement that the job and maintenance register which was maintained was not produced despite the application filed by the accused-appellants. It has also come in the statement of I.S.I. Kanwar PW 8 that while the transmitter - sets were received in the workshop the entry was to be made in the job and maintenance register. In the said register entries relating to the type and defect of the sets was also made. According to him. complete record was maintained of the sets and there was shortage of technical personnel in his work-shop He also states that after the sets were modified from outside the work-ship, the same were listed and modified sets alongwith report were also sent to the office. He also states that it is possible that during that period the such entry might not have been made in the register during that period. He states that in the years 1952 53 & 1953-54 there was rush of work. According to him sets were modified in Jaipur from private and after testing the same they were sent outside. It can be said that the procedure was that even though the sets including BG 375(E) transmitter-sets had been modified outside the work-shop they were tested in the workshop and thereafter they were sent to the store alongwith testing report. While dealing with various points in the earlier part of this judgment it has been concluded that unless prejudice to accused is shown to have been caused, mere delayed trial is no reason to set aside the conviction and sentence of the accused person. Despite the application made on behalf of the accused-appellants the job and maintenance register was not produced by the prosecution. This in my opinion has caused prejudice to the case of accused-appellants. Even on merits, as has been said earlier and shall be presently shown it cannot be concluded that that three BC 375(E) transmitter-sets were not available and could not be available for modification/conversion from 24 volts to 12 volts. 16. It is not disputed that accused-appellant Mahesh Chand Sharma was incharge of the stores in the wireless department from November 1952 to October, 1953. He had handed over the charge to the accused-appellant Vishnu Dutt Sharma on October 28, 1953. 16. It is not disputed that accused-appellant Mahesh Chand Sharma was incharge of the stores in the wireless department from November 1952 to October, 1953. He had handed over the charge to the accused-appellant Vishnu Dutt Sharma on October 28, 1953. He had been transferred to Tonk under order dated November 5, 1953 was also relieved. He had therefore no concern with the wireless department at Jaipur either in the store or in workshop. He was sent for training at Delhi under order of the Inspector General of Police dated February 24, 1954 and remained posted from March 10, 1954 to June 12, 1954 at Delhi in training. Therefore, when 3 BC 375(E) transmitter-sets are said to have been given for modification/conversion from 24 volts to 12 volts, Mahesh Chand Sharma was not at Jaipur and he could not and in fact did not play any roll whatsoever so far as giving of three BC 375(E) transmitter-sets for modification/conversion is concerned. It appears from Ex P/5. Ex.P/10 and Ex. P/II that there are entries from the local purchase register(page 147-148) and it can be said that the entries are dated March 15, 1954. Thus, on March 10, 1954, when the 3 bill, Nos. 117, 210 and 211 from M/s Radio Centre of which accused-appellant Gurdev Singh was proprietor, for modification/conversion of the three sets at the rate of Rs. 65/- per set were made, so far as the accused-appellant Mahesh Chand Sharma is concerned, he had already handed over the charge, much earlier to it i.e. October 28, 953 Learned Special Judge said that the accused M. C. Sharma. purchased a radio from M/s Radio Centre on December 1, 1953 and according to the learned Special Judge it can be said that radio was taken without any payment against the commission which M.C. Sharma was to receive from M/s Radio Centre. It may be stated that the price of the radio was much more than Rs. 195/-. Accused-appellant Mahesh Chand Sharma has stated in his statement as DW 1 that he had come from Tonk and purchased the radio from M/s Radio Centre and at that time paid Rs. 146/- and the balance of the price was paid by him later on partly in cash and partly by giving a table-fan the value of which was adjusted in the remaining amount. 146/- and the balance of the price was paid by him later on partly in cash and partly by giving a table-fan the value of which was adjusted in the remaining amount. He stated that he paid the entire price of the radio purchased by him. Even DW 2 Vishnu Dutt Sharma stated that he was store incharge wireless from October 1953 to April 1954 and when he took over charge there were three BC 375 (E) transmitter sets without modification in the stores which were modified I have already referred to the statement of I.S.I. Kanwar PW 8 and at the cost of repetition it may be stated that he stated that when he took over charge from V.D. Sharma on May, 3 1954, he had taken over in his charge 57 BC (E) transmitter - sets and rest of the sets had been issued. He also states clearly that those BC 375 (E) transmitter-sets were operatable on 24 volts. Rajendra Singh DW 3 was partner of M/s Radio Centre at the relevant time and he made a categorical statement that it was on December i, 1953 that Mahesh Chand Sharma purchased a radio from his shop for a price of Rs. 266/- and few paise. At that time Mahesh Chand Sharma was posted at Tonk. He received the entire price of the radio partly in cash and partly adjustment the value of table fan given to him. The learned Special Judge said that besides 3 BC 375 (E) transmitter sets it was regular practise that other type of sets were given for modification/conversion and therefore the possibility that the entire price of radio was not paid in cash and was adjusted towards the commission cannot be excluded in my opinion, this approach of the learned Special Judge is not correct because when there was specific charge in respect of Rs. 195/- the amount of three bills for modification/conversion of the three sets, which amount was even much less than the price of the radio, it could not be said that the accused-appellant Mahesh Chand Sharma did not pay the amount of the radio and the price thereof was adjusted towards the commission. 195/- the amount of three bills for modification/conversion of the three sets, which amount was even much less than the price of the radio, it could not be said that the accused-appellant Mahesh Chand Sharma did not pay the amount of the radio and the price thereof was adjusted towards the commission. Moreover, Mahesh Chand Sharma had already been transferred to Tonk and he was not posted in the workshop and was not even the incharge of the stores in the wireless branch of the police department at Jaipur. The entire case of the prosecution is based on assumption that in the month of March 1954 or in the month of June 1954 when three BC 375 (E) sets were given for modification/conversion to M/s Radio Centre of which accused-appellant Gurdev Singh was the partner / proprietor such number of sets was Dot available and could not be available. As a result of the aforesaid discussion, it cannot be said that three BC 375 (E) transmitter-sets were not available for modification/conversion and false bill was prepared by the accused appellant for the amount of Rs 195/-. I have already said that three BC 375 (E) transmitter-sets can be said to have been available for modification conversion and if that be so, the entire case of conspiracy allegedly hatched by the accused-appellants falls on the ground. It cannot be said that any of the accused-appellants, namely, Laxman Singh, M C. Sharma and V.D. Sharma drew any illegal advantage of pecuniary consideration and hatched conspiracy for that purpose. 17. Consequently, I allow these appeals and set aside the judgment of conviction and sentence dated February 17, 1981 of the learned Special Judge ACD Cases, Jaipur and acquit the accused-appellants of all the charges levelled against them. The accused-appellants are on bail. They need not surrender to their bail bonds which are hereby discharged.Appeal Allowed. *******