Chinnappa Reddy, J. - (1.) To appreciate the question posed in the present appeal, it is necessary to set out in full the two charges framed against the two appellants. They were as follows:-"I Chandrakant T. Mashla, Judical Magistrate 2nd Court, Baroda hereby charge you (1) Amritial Ratilal Mehta (2) Gajanan Bhikhabhai Gandhi both of Baroda as follows:- That both of you Amritlal Ratilal Mehta and Gajanan Bhikhabhai Gandhi on or about 21-12-65, at Baroda cheated the Central Excise Department, Baroda in furtherance of common intention to cheat the Government of excise duty of Rs. 11,450 (Eleven thousand four hundred and fifty) by dishonestly making false declaration in gate passes numbers 105, 104, 103, all D/- 21-12-65 which were prepared and written by accused No. 1 and signed by accused No. 2 stating therein: "Repaired Motor with our replacing statore or Rotor" and thereby dishonestly induced the Central Excise Inspector to allow the clearance of Electric Motor Nos. 614193, 614194, 614196 respectively without payment of Central Excise duty on the dutiable parts namely Rotors Nos. 41-40-42 which were manufactured by M/s. Jyoti Ltd. Company, Baroda and were replaced by the said company in the above Electric Motors and thereby got the clearance of the above Electric Motors without payment of Central Excise Duty, causing thereby wrongful loss of Rs. 11,450 to the Central Excise Department and thereby both of you committed offence punishable under S. 420 read with 34 of I.P.C. within cognizance of J.M.F.C., Baroda. And also that both of you at about the same time and place in furtherance of common intention in your capacity as employees of M/s. Jyoti Ltd, Baroda willfully and with an intention to defraud the Central Excise Department, Baroda made false entries in the gatepasses as mentioned above belonging to your employer and thereby committed an offence punishable under S. 477-A read with S.34 I.P.C. and within cognizance J.M.F.C., Baroda. And thereby direct that you both be tried for the above offences by 2nd Court, J.M.F.C., Baroda".
(2.) The learned Judicial First Class Magistrate, Baroda who tried the case acquitted both the accused of the charge under S.420 read with S.34, I.P.C. but convicted them under S. 477-A read with S.34, I.P.C. and sentenced them to pay fines of Rs. 100 and Rs. 500 respectively. The learned Magistrate was of the view that neither of the accused intended to cheat and make wrongful gain but that they made a false entry in the gatepasses with a view to help their employer. The two accused preferred an appeal to the Extra Additional Sessions Judge, Baroda. The learned Sessions Judge acquitted them of the charge under S.477-A read with S.34, I.P.C. also. The learned Sessions Judge found that the gate passes were prepared by the accused under a mistake and that the worst that could be said against the two accused was that they acted inadvertently or negligently. The learned Sessions Judge took the view that the expression "intend to defraud" denoted some element of dishonesty and that the appellants acted neither willfully nor with the intent to defraud the Government. The State of Gujarat filed two appeals, the first against the order of acquittal recorded by the learned Judicial First Class Magistrate, Baroda on the charge under S. 420 read with S.34, I.P.C. and the second against the order of acquittal recorded by the learned Extra Additional Sessions Judge, Baroda on the charge under S.477-A read with S.34, I.P.C. The appeal against the order of acquittal on the charge under S. 477-A read with S.34, I.P.C. was dismissed summarily on 13-3-72 by J.M.Sheth and A.A.Dave, JJ. The appeal against the order of acquittal on the charge under S.420 read with S. 34, I.P.C. was allowed on 27/28-2-73 by J. M. Sheth, J. and the two accused were sentenced to pay fines of Rs. 300 and 500 respectively. It is against this judgment of J.M. Sheth, J. that the present appeal has been preferred by special leave to this Court.
(3.) The principal submission of Shri. Frank Anthony, learned counsel for the appellants was that in view of the findings of fact recorded by the Sessions Judge on the charge under S. 477-A read with S. 34, which had become final as a result of the dismissal of the appeal by Sheth and Dave, JJ., the charge under S. 420 read with S. 34. I.P.C. must automatically fail. The learned counsel submitted that the judgment of the High Court convicting the appellants under S. 420 read with S. 34, I.P.C. was patently wrong. We are inclined to agree with the submission of Shri Frank Anthony.;