Harcharan Singh v. State of Rajasthan — 1999 DIGILAW 1215 (RAJ)

Honble GUPTA, J.–This criminal revision petition is directed against the order dated 23.8.1993 passed by the learned Addl. Chief Judicial Magistrate, Sri Karanpur framing charges under Secs. 420, 467, 468, 471, 474 and 477-A IPC against the petitioners. (2). Mr. Dhillon, learned counsel for the petitioners, pointing out that the petitioners had been tried by the Special Judge for the false entries recorded in the registers, and convicted under Sec. 7 read with Sec. 3 of the Essential Commodities Act vide judgment dated 28.9.89, contended that they cannot be tried under Secs. 420, 467, 468, 471, 474, and 477-A IPC again on the same allegations because of the provisions of Sec. 26 of the General Clauses Act and hence the charges are liable to be quashed. (3). Mr. Kalla, Public Prosecutor, on the other hand, contended that the allegations in the earlier case were with regard to the contravention of the provisions of the Control Order issued under the Essential Commodities Act and the all-egations in the present case are that the petitioners had cheated the consumers as also their employer, and therefore, there is no legal impediment in the trial of the petitioners. (4). A narration of facts would help us in resolving the controversy. Ajad Gram Seva Sahakari Samiti Limited, Dhanjatiya, was dealer of levy sugar. It was the duty of the society to distribute the levy sugar to the ration-card holders every month as per the direction given by the District Supply Officer. On receiving some complaints, the DSO directed Harbhajan Singh, Enforcement Inspector, to inspect the establishment of Ajad Gram Seva Sahakari Samiti. Shri Harbans Singh inspected the record of the Society on 9.8.85. He found that the levy sugar allotted to the society was not distributed to the consumers and there was embezzlement of sugar. He noticed that the stock and distribution registers were not properly maintained. He, therefore, lodged a report at Police Station Keshrisinghpur on 1.5.85, whereupon a case under Sec. 3/7 of the Essential Commodities Act was registered. The police, after completion of the investigation, filed chargesheet No. 74 against the petition-ers under Sec. 3/7 of the E.C. Act stating that a separate chargesheet No. 74-A was being submitted for offences under Secs. 420, 467, 468, 471, 474 and 477-A IPC. The police, after completion of the investigation, filed chargesheet No. 74 against the petition-ers under Sec. 3/7 of the E.C. Act stating that a separate chargesheet No. 74-A was being submitted for offences under Secs. 420, 467, 468, 471, 474 and 477-A IPC. The learned Special Judge framed charges against the petitioners under Sec. 7 & 9 read with Sec. 3 of the E.C. Act on chargesheet No. 74. The petitioners pleaded not guilty. The prosecution examined 37 witnesses. The learned Special Judge, after hearing the learned counsel for the parties and considering the evidence, convicted both the petitioners under Sec. 7 read with Sec. 3 of the E.C. Act vide judgment dated 28.9.89. The appeal preferred against the judgment is pending in this Court and is registered at No. 372/89. Therefore, the learned Addl. Chief Judicial Magistrate took up the case based on chargesheet No. 74-A. After hearing the parties, he passed the impugned order on 23.8.93. (5). The point that arises for determination is whether Section 26 of the General Clauses Act, 1897 bars the prosecution of the petitioners for offences under Sections 477-A, 467, 471, 474 and 420 IPC because of their earlier trial for offences under the E.C. Act. (6). Sec. 26 of the General Clauses Act reads as follows:- ``26. Provisions to offences punishable under two or more enactments.-Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. (7). Admittedly, in the earlier case the petitioners were neither tried nor prosecuted for the offences under the IPC. (8). The serious question to be considered is whether the petitioners could be tried or will be deemed to have been tried for the offences of the Indian Penal Code in the earlier case filed before the Special Judge, Essential Commodities Act, Sri Ganganagar. Under Sec. 12-AA of the Essential Commodities Act, the offences under the Act are triable only by the Special Court situated for the area in which the offence is committed. Under Sec. 12-AA of the Essential Commodities Act, the offences under the Act are triable only by the Special Court situated for the area in which the offence is committed. Clause (f) of Sub Section (1) of Sec. 12-AA provides that the offences under the E.C. Act shall be tried in a summary way and that the provisions of Sec. 262 and 265 of the Code shall apply to such trial. Sub-Sec. (2) of Sec. 12-AA reads as follows. ``(2) When trying an offence under Act, a Special Court may also try an offence other than an offence under this Act, with which the accu-sed may, under the Code, be charged at the same trial. Provided that such other offence is, under any other law for the time being in force, triable in a summary way. Provided further that in the case of any conviction for such offence in such trial, it shall not be lawful for the Special Court to pass a sentence of imprisonment for a term exceeding the term provided for conviction in a summary trial under such other law. (9). A reading of sub-Sec.(2) makes it clear that only such offences can be tried by Special Court alongwith offences of E.C. Act, which are triable in a summary way. The offences under Secs. 477-A, 467, 468, 471, 474 and 420 IPC are certainly not triable summarily. It is, therefore, obvious that those offences could not be tried by the Special Judge alongwith the offences under the Essential Commodities Act, and they can be deemed to have been tried by the Special Judge. (10). The next question to be considered is whether on the ground that the allegations are common to both the cases, can it be said that the petitioners have been tried for the offences under the IPC in the earlier case. The argument of Mr. Dhillon was that Sec. 9 of the Essential Commodities Act punishes a person who prepares false record and therefore when the petitioners have been tried under Sec. 9 of the Essential Commodities Act and they have not been convicted under that Section, it should be presumed that they have been acquitted for that offence, and since the allegations constituting offence under Sec. 9 of the Essential Commodities Act and the offences under the IPC are the same, there cannot be second trial of the petitioners for those offences. (11). (11). Sec. 9 of the Essential Commodities Act, is as under:- ``9. False statements.-If any person,- (i) When required by any order made under Section 3 to make any statement or furnish any formation, makes any statement or furnishes any information which is false in any material particular and which he knows or has reasonable cause to believe to be false, or does not believe to be true, or (ii) makes any such statement as aforesaid in any book, account, record, declaration, return or other document which he is required by any such order to maintain or furnish. he shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. (12). Clause (2) of Sec. 9 provides that if any person makes false statement in any book of account or record etc., he commits an offence punishable under that Section. It is true that when the petitioners made false entries in the books of accounts i.e. they made entries of distribution of sugar without distributing the same or prepared false receipts of the ration-card holders, their act fell in the mis-chief of Sec. 9 of the E.C. Act as well as under Sec. 467 of IPC. So also on using the forged documents as genuine dishonestly or fraudulently, the act amounted to an offence under Sec. 9 of the Essential Commodities Act as well as under Sec. 471 IPC. So also, the possession of the forged documents intending to use them as genuine, constituted offence under Sec. 9 of the Essential Commodities Act as well as Section 474 of the IPC. Therefore, there is merit in the contention of Mr. Dhillon that the petitioners cannot be tried for the offences under Secs. 467, 471 and 474 IPC again. Sec. 26 of the General Clauses Act prohibits second punishment for the same act which constitutes an offence under two or more enactments. Since the petitioners have already been tried under Sec. 7 & 9 of the Essential Commodities Act, they cannot be tried again under Secs. 467, 471, 474 IPC. These charges deserve to be quashed. (13). The petitioners have also been charged under Secs. 420 and 471 IPC. Since the petitioners have already been tried under Sec. 7 & 9 of the Essential Commodities Act, they cannot be tried again under Secs. 467, 471, 474 IPC. These charges deserve to be quashed. (13). The petitioners have also been charged under Secs. 420 and 471 IPC. A charge under Sec. 420 IPC can be framed when there are allegations that a person had delivered any property or consented for the retention of a property on the inducement by the accused. Sec. 415 of the Indian Penal Code, reads as under:- ``415. Cheating-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to `cheat. (14). In the instant case, there are no allegations that the petitioners had induced any person to deliver any property or to consent for its retention or that they induced some person to do or omit to do anything. That being so, a charge under Sec. 420 IPC could not be framed on the basis of challan papers. (15). A charge under Sec. 468 etc. also could not be framed as the allegation of offence of cheating are not available on record. The learned Magistrate has obviously erred in framing charge under Sec. 468 IPC against the petitioners. (16). However, there cannot be any objection to the trial of the petitioners for offence under Sec. 477-A IPC. The offence of Sec. 477-A IPC is constituted when a clerk or servant with intent to defraud his employer makes false entries in the re-cord. The learned Magistrate has obviously erred in framing charge under Sec. 468 IPC against the petitioners. (16). However, there cannot be any objection to the trial of the petitioners for offence under Sec. 477-A IPC. The offence of Sec. 477-A IPC is constituted when a clerk or servant with intent to defraud his employer makes false entries in the re-cord. Sec. 477-A is reproduced hereunder:- ``477-A. Falsification of accounts.-Whoever, being a clerk, officer or servant, or employed or acting in the capacity of clerk, officer or ser-vant, wilfully, and with intent to defraud, destroys, alters mutilates or falsifies any book, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been recei-ved by him for or on behalf of his employer, or wilfully, and with intent to defraud makes or abets the making of any false entry in, or omits or alters or abets the omissions or alteration of any material particular from or in, any such book, paper, writing valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine or with both. (17). In the instant case, the allegations against the petitioners are that they were Manager and Salesman in the Sahakari Samiti. They were, thus, the servants of the Sahakari Samiti. The facts indicate that they made false entries in the record. They showed distribution of sugar to some persons whereas sugar was not distributed. It is a case where the servants of the society made false entries in the record with intent to defraud the society. The subject matter of Section 477-A IPC is not covered either by Sec. 7 or Sec. 9 of the Essential Commodities Act. The offence under Sec. 477-A IPC was also not triable summarily. Therefore, the learned Special Judge trying the case under the Essential Commodities Act, could not try the petitioners under Sec. 477-A IPC and they have infact not been tried for that offence. In my judgment, the bar of Sec. 26 of the General Clauses Act does not come in the way of the trial of the petitioners for offence under Sec. 477-A IPC. (18). Consequently, the revision petition partly succeeds. The charges framed against the petitioners under Secs. 467, 468, 420, 471 and 474 are hereby quashed. In my judgment, the bar of Sec. 26 of the General Clauses Act does not come in the way of the trial of the petitioners for offence under Sec. 477-A IPC. (18). Consequently, the revision petition partly succeeds. The charges framed against the petitioners under Secs. 467, 468, 420, 471 and 474 are hereby quashed. The charge under Sec. 477-A IPC shall stand and the petitioners shall be tried for that offence by the trial Court.