- (1.) The two appellants were tried before the Presidency Magistrate, 4th Court, Calcutta for offences under Section 120B read with Section 420 and S. 511 read with S. 420 of the Indian Penal Code. The learned Presidency Magistrate held them guilty of both the offences and imposed a sentence of 1 year's imprisonment and a fine of Rs. 200 on each of the accused on the first charge and considered that no separate sentence was necessary in respect of the second, and the appeals filed by them in the High Court of Calcutta were summarily dismissed. The facts giving rise to these appeals are as follows : Appellant Sudhir Kumar Mukherjee was an employee in charge of soda lime department of M/s Gluconate Limited, Calcutta, and appellant Sham Lal Shaw was the supplier of lime stone to the said firm. It appears that four bags of lime stone were needed every day. The procedure in respect of the supply was that Shaw used to bring the bags to Sudhir and present a chalan to him Thereupon Sudhir would send the chalan to P.W. 2, Ardhendu Sokhar Goswami, who used to initial it and send back to Sudhir. Thereupon Sudhir would put a seal on St as also his signature, and Shaw would present that chalan to the concerned department and receive payment for the supply made. It appears that the Managing Director of the company, Amarendra Nath Haldar, P.W. 1 had heard certain complaints that Sudhir was in the habit of signing the chalan without actually receiving the goods. He therefore asked PW 2 to make a physical verification of the lime stone to be received on 4-3-1968. On that day Sudhir sent the chalan to PW 2 for his signature through to PW 3. PW 2 initialled it and after informing PW 1 about his having initialled the chalan went down to verify the stock. As the four bags of lime stone were not there he asked Sudhir and he stated that the quantity received had been spent. PW 1 sent for Sudhir and he first told him that the lime stone received had been used up and later changed his statement and said that he might have signed the chalan through mistake. Shaw was then sent for by PW 1. When questioned he denied having received any chalan or having made any supply of lime stone on that day. But when he was told that he would be sent to the police, he produced the chalan which bore PW 2's initials. It should also be mentioned that PW 5 was also asked by PW 1 to make a physical verification and to him Sudhir denied having any knowledge of the matter and Sham Lal Shaw told him that he had not supplied any goods on that day. It is on these facts that the prosecution was instituted and the conviction and sentence imposed as mentioned earlier.
(2.) Sudhir's contention was that he had been falsely implicated as he was the Assistant Secretary of the labour union. Shaw contended that about Rs. 3,000/- was due to him for the supply of lime stone, that he had made a demand for it, that PW 1 asked him to reduce the rate, that on 4-3-1968 Sudhir asked him to take back the goods as it was not required and he did so.
(3.) There is no doubt that the facts as narrated earlier have been amply proved by the evidence in this case. The question therefore is whether there was a conspiracy and whether there was an attempt at cheating or whether as contended on behalf of the appellants there was only a preparation and not an attempt. In the circumstances of this case we would prefer not to express any opinion on the question of conspiracy as there has been only a single instance involved. But we consider that the evidence of attempting to cheat has been amply established. We are unable to accept the argument on behalf of the appellants that there was only preparation and not an attempt. The chalan, Ext. 1 mentions that the four bags of lime stone were received from Sham Lal Shaw and it bears the initials of PW 2. It is established that it was the duty of accused Sudhir after receiving the lime stone to send up the chalan for PW 2's initials. It means that when the chalan is sent up by Sudhir for being initialled by P.W. 2, Sudhir takes upon himself the responsibility of assuring P.W. 2 that the lime stone has been received. This practice is spoken to by PWs. 1 and 2. PW 3 gave evidence about having taken the chalan to PW 2 for his initials at the instance of accused Sudhir. Though his evidence has been held to be unreliable this part of his evidence is corroborated by PW 2's evidence. Though the subsequent stage of affixing a stamp to the Chalan and signing of it by accused Sudhir has not been completed that does not make any difference. Admittedly quite a good amount of money was due to Shaw from the company. That money could be received only by producing the relevant chalans. So this chalan also could be produced for payment after it was stamped and signed by accused Sudhir at his own leisure. The most important step of getting PW 2's initials on the chalan has been carried out and thereafter it was only a matter between the two accused. In the circumstances the question is whether there has been an attempt to cheat or merely a preparation.;