minal Appeal No 156 of 1961
Appeal from the judgment and order dated June 15 1961 of the Calcutta High Court in Criminal Appeal No 745 of 1959
D N Mukherjee for the appellant
P K Chakraborty and P K Bose for the respondent
March 6 1964
The Judgment of the Court was delivered by RAGHUBAR DAYAL J
Sunil Kumar Paul has preferred this appeal after obtaining a certificate from the Calcutta High Court under article 1341c of the Constitution
The facts leading to the appeal are these
The appellant was a clerk in the office of the Sub Divi sional Health Officer at Barrackpore in 1955 56
He used to prepare bills of the establishment to present them at the Sub treasury and later present them at the State Bank at Barrackpore to receive payment in cash and to make over that amount to the Sub Divisional Health Officer
Certain bills were drawn under the heading 38 Medical 
Certain bills were to be drawn under the heading 39 Public Health 
Some other bills were drawn under other headings
On October 5 1956 the appellant presented a bill for Rs 1769 out of Which a sum of Rs 5 10 0 was to be credited in the Postal Life Insurance Ledger and the balance of Rs 1763 6 0 was to be received in cash
This bill was duly passed by the Sub Treasury and was subsequently presented to the Bank on October 6 1956 for payment of Rs 1763 6 0 The Bank paid this amount to the appellant
The amount was 72 not paid to the Sub Divisional Health Officer
In fact the records of the Office of the Sub Divisional Health Officer did not refer to any such bill being prepared and submitted to the Sub Treasury and the Bank for payment
A bill for practically the same items which were mentioned in the bill cashed on October 6 was however presented on October 1 1956
It was for an amount of  Rs 1767 out of which Rs 5 10 0 were to be credited to the PLI account ledger and the balance of Rs 1761 6 0 were to be paid in cash
The amount of this bill was received on October 1 and was duly handed over to the Sub Divisional Health Officer
It may be mentioned that this bill
cashed on October 1 1956 was at first prepared for Rs 1769 and the amount to be received in cash was to be Rs 1763 6 0 but prior to this encashment a correction was made at some stage  and the bill was reduced by Rs 2 in the total amount and consequently in the amount to be paid in cash
The fact of the presentation of a bill for its encashment of Rs 1763 6 0 on October 6 1956 came to the notice of the
Divisional Health Officer at the instance of the Accountant General and on enquiry it was found that no such bill had been actually presented by his office for encashment and that no such amount was received by him
This led to a complaint and further enquiries and investigation which ended in the prosecution of the appellant
The case was made over to the Special Judge by the Government in view of the provisions of the West Bengal Criminal Law Amendment Special Courts Act 1949 W B Act XXI of 1949 hereinafter called the Act as it involved an offence punishable under section 409 IPC
The Special Judge tried the appellant for that offence and convicted him and sentenced him to rigorous imprisonment for two years and to pay a fine of Rs 2000
The appellant went in appeal to the High Court of Calcutta
The High Court agreed with the appellant s contenion that no offence under section 409 IPC had been made out but heldthat he was proved to have committed an offence under section 420 IPC
It accordingly altered his conviction from an offence under section 409 IPC to one under section 420 IPC for cheating the employees of the State Bank Barrackpore by representing that the bill for Rs 1769 gross and Rs 1763 6 0 cash drawn on October 6 1956 was a genuine bill drawn by the Sub Divisional Health Officer and thereby dishonestly inducing the Bank s staff to make over the sum of Rs 1763 6 0 to him and sentenced him to rigorous imprisonment for one year and to fine of Rs 2000
It is against this order that this appeal has been preferred
73 The facts found by the High Court are sufficient to justify the finding that the appellant committed the offence under section 420 IPC Learned counsel for the appellant has urged the following points 1 A case involving an offence under section 420 IPC cannot be allotted for trial to a Special Court by the State Government when such an offence is not committed by a public servant while purporting to act as such public servant
2 The Special Court could not take recourse to the provisions of section 237 Cr
PC and if it could the requiremen ts of section 237 Cr
PC were not satisfied in the present case and that consequently the High Court could not have altered the conviction of the appellant from an offence under section 409 IPC to one under section 420
3 The ingredients of an offence under section 420 IPC were neither alleged nor proved by the prosecution
4 The accused has been prejudiced on account of the absence of the necessary allegations and the omission to frame a charge for an offence under s420 IPC and therefore the provisions of section 537 Cr P C would not cure this defect in trial
To appreciate the first contention reference may be made to the relevant provisions of the Act
They are 41 Notwithstanding anything contained in the Code of Criminal Procedure 1898 or in any other law the offences specified in the Schedule shall be triable by Special Courts only Provided that when trying any case a Special Court may also try any offence other than an offence specified in the Schedule with which the accused may under the Code of Criminal Procedure 1898 be charged at the same trial
2 The distribution amongst Special Courts of cases involving offences specified in the Schedule to be tried by them shall be made by the State Government
2 Save as provided in sub section 1  the provi sions the Code of Criminal Procedure 1898 shall so far as they are not inconsistent with this Act apply to the pro ceedings of a Special Court and for the purposes of the said provisions a Special Court shall be deemed to be a Court of Session trying cases without a Jury and a person conducting a prosecution before a Special Court shall be deemed to be a Public Prosecutor
 THE SCHEDULE    2
An offence punishable under section 409 of the Indian Penal Code
 if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government in respect of property with which he is entrusted or over which he has dominion in his capacity of a public servant or in the way of his business as such agent
An offence punishable under section 417 or section 420 of the Indian Penal Code if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government while purporting to act as such public servant or agent
The Government notification allotting the present case to the Special Court is not on the record and therefore what its actual contents were cannot be stated with any precision
It may however be assumed that it mentioned the offence involved in the case to be that under section 409 IPC and possibly did not state the various facts which went to establish that offence against the appellant
Section 409 IPC is mentioned in the Schedule referred to in sub section
2 of section 4 of the Act
The State Government was therefore competent to allot the case involving that offence to the Special Court
In fact it had to allot the case to the Special Court in view of the provision of sub section
1 of section 4 to the effect that the offences specified in the Schedule shall be triable by Special Courts only
The question therefore really is whether the Special Court could try the appellant 75 for the offence under section 420 IPC An offence under section 420 IPC when committed in certain circumstances is also men tioned in the Schedule
It has to be tried by Special Courts only when it is committed by a public servant while purporting to act as such
There is no doubt that the appellant is a public servant
This has not been disputed
Learned counsel for the appellant Mr Mukherjee has urged that the expression while purporting to act as such public servant  be construed to mean while purporting to act in the discharge of official duties  and that presentation of a false bill could not be in the discharge of official duty
Such presentation may not be in the discharge of official duty but the question is different and is as to whether the presentation of a false bill was made by the public servant purporting to do so in the discharge of his duties
The appellant did present the false bill purporting to present it in the discharge of his duties as a clerk of the Office of the Sub Divisional Health Officer who was duly authorised to present bills and cash them
Reliance is placed on the case reported as Bhajahar Mondal vs The State or West Bengal1 in support of the contention that the appellant should not have been tried by the Special Court of the offence under section 420 IPC when the case was allotted as one involving an offence under section 409 IPC The facts of that case were very different
The order allotting the case mentioned the offence of which the accused was to be tried to be an offence under section 161 read with section 116 IPC The order was made on November 27 1952
Prior to this date on July 28 1952 abetment of an offence under section 161 IPC was made a distinct offence under section 165 A IPC by the Criminal Law Amendment Act XLVI of 1952 An offence under section 165A was not mentioned in the Schedule to the Act as it stood on November 27 1952
This Court held that the notification of the Government making over the case to the Special Court was bad as the case made over related to no existing offence
Such cannot be said of the Government notification allotting the case in the present appeal to the Special Court as on the date of such notification there existed an offence under section 409 IPC and it was included in the Schedule to the Act
On the facts proved it is not to be doubted that the appellant presented the bill for Rs 1763 6 0 at the State Bank oil October 6 purporting to act as the clerk of the Sub Divisional Health Officer
The bill presented was on be half of that officer
The Bank made the payment to him a 1  76 the messenger of that officer duly authorised to receive payment in cash
It follows that the offence under section 420 committed by the appellant would be committed by him as a public servant purporting to act as such and that a case involving this offence also could have been allotted to the Special Court by the State Government for trial
The Special Court was therefore competent to try the accused for this offence if the facts proved established it
Apart from the consideration that the offence of cheating of which the appellant accused has been convicted fell within the offences mentioned in the Schedule the appellant could be tried by the Special Court for this offence in view of the proviso to section 4
The proviso authorizes the Special Court when trying a case involving an offence specified in he Schedule to try any offence other than that offence with which the accused may be charged at the same trial in accordance with the provisions of the Code of Criminal Procedure
The accused could be charged with an offence under section 420 IPC if he could be tried for this offence at the trial for an offence under section 409 IPC He could be so tried in view of is
236 and 237 Cr P C
It is urged for the appellant that the provisions of section 236 Cr P C wouldapply only to those cases where there be no doubt about the facts which can be proved and a doubt rises as to which of the several offences had been committed on the proved facts
Sections 236 and 237 read 236
If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of the said offences
Illustrations a A is accused of an act which may amount to theft or receiving stolen property or criminal breach of trust or cheating
He may be charged with theft receiving stolen property criminal breach of trust and cheating or he may be charged with having committed theft or receiving stolen property or criminal breach of trust or cheating
77 237
If in the case mentioned in section 236 the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged  under the provisions of that section he may be convicted of the offence which he is shown to have committed although he was not charged with it
Illustration A is charged with theft
It appears that he committed the offence of criminal breach of trust or that of receiving stolen goods
He may be convicted of criminal breach of trust or of receiving stolen goods as the case may be though he was not charged with such offence
 The framing of a charge under section 236 is in the nature of things earlier than the stage when it can be said what facts have been proved a stage which is reached when the court delivers its judgment
The power of the Court to frame various charges contemplated by section 236 Cr P C therefore arises when it cannot be said with any definiteness either by the prosecutor or by the Court that such and such facts would be proved
The Court has at the time of framing the charges therefore to consider what different offences could be made out on the basis of the allegations made by the prosecution in the complaint or in the charge submitted by the investigating agency or by the allegations made by the various prosecution witnesses examined prior to the framing of the charge
All such possible offences could be charged in view of the provisions of section 236 Cr P C as it can be reasonably said that it was doubtful as to which of the offences the facts which could be ultimately proved would constitute
The facts which must have been alleged prior to the stage of the framing of the charge in the present case must have been what had been stated in the charge sheet submitted by the Investigating Officer 24 Parganas which is printed at p 3 of the appear record
This charge sheet narrates in the column meant for the name of offences and circumstances connected with it that on the 6th October 1956 Sunil Kumar Paul a Public servant in the employment of the office of the Sub Divisional Health Officer Barrackpore ie clerk dishonestly drew Rs 1763 6 0 excluding Postal Life Insurance deduction of Rs 5 10 0 from the State Bank of India Barrackpore Branch by submitting a false duplicate Estt
Pay Bill 78 for the office of the said SDHO Barrackpore
The money drawn was not credited to the office of the Sub Divisional Health Officer Barrackpore
 It is practically on these facts that the conviction of the appellant for an offence under section 420 IPC has been found ed
It follows that the Special Court could therefore have framed a charge under section 420 IPC at the relevant time if it had been of the opinion that it was doubtful whether these facts constitute an offence under section 409 IPC as stated in the charge sheet or an offence under section 420 IPC When a charge under section 420 IPC could have been framed by the trial Court by virtue of section 236 Cr
PC that Court or the appellate Court can in law convict the appellant of this offence instead of an offence under section 409 IPC if it be of the view that the offence of cheating bad been established
This would be in accordance with the provisions of section 237 Cr
P C In Begu vs The King Emperor1 sections 236 and 237 were construed by Viscount Haldane thus The illustration makes the meaning of these words quite plain
A man may be convicted of an offence although there has been no charge in respect of it if the evidence is such as to establish a charge that might have been made
That is what happened here
The three men who were sentenced to rigorous imprisonment were convicted of making away with the evidence of the crime by assisting in taking away the body
They were not charged with that formally but they were tried on evidence which brings the case under section 237
 This was approved by this Court in Ramaswamy Nadar vs The State of Madras2
In this case the accused acquitted of an offence under section 420 IPC was convicted by the High Court of an offence under section 403 IPC
This Court held that the High Court could do so
On facts however this Court did not find the offence under section 403 proved
In the State of Andhra Pradesh vs Kandimalla Subbaiah3 it was held that while a Special Judge appointed under section 6 of the Criminal Law Amendment Act XLVI of 1952 had juris diction to try cases under section 5 of the Prevention of Corruption Act he could under section 73 of the Criminal Law Amendment 1 52 IA 191
2 3  203
79 Act try other offences under the Code of Criminal Procedure if the accused could be charged with them at the same trial and that therefore the accused could be tried at the trial for an offence under section 5 of the Prevention of Corruption Act for an offence under section 120B read with sections 466 467 420 IPC and that the other accused who had abetted the commission of these offences could also be tried
Sub section
3 of section 7 of the Criminal Law Amendment Act provided that when trying any case a Special Judge might also try any offence other than an offence specified in section 6 with which the accused might under the Code of Criminal Procedure 1898 be charged at the same trial
In support of his contentions learned counsel for the appellant referred to the case reported as Nanak Chand vs The State of Punjab1 wherein it was stated at p 1212 The provisions of section 236 can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can  be framed and tried or alternative charges can be framed  
In the present case there is no doubt about the facts and if the allegation against the appellant that he had caused the injuries to the deceased with takwa was established by evidence then there could be no doubt that the offence of murder had been committed
 This does not help the appellant s contention as the alle gations in that case if proved could establish according to the Court the offence of murder only and therefore there was no room for any doubt about the nature of offence com mitted and for the application of section 236 Cr P C
In that case the appellant was tried along with others for an offence under section 302 read with section 149 IPC
The Sessions Judge convicted the appellant and a few others under section 302 read with section 34 IPC
The High Court acquitted the others and altered the conviction of the appellant to the offence under section 302 IPC
It was in this setting that this Court held that on the basis of the specific allegation that the appellant had struck the deceased with a takwa there could be no doubt of that fact constituting an offence under section 302 and not an offence under section 302 read with section 149 IPC We therefore hold that at the trial of the appellant for an offence under section 409 IPC in this case the appellant could have also been charged for an offence under section 420 I P C in view of section 236 of the Code of Criminal Procedure
1  80 It is then urged for the appellant that under the proviso to section 4 of the Act the Special Court can try any other offence only when the accused is specifically charged with that offence
The language of the proviso does not lead to such a conclusion
It provides for the trial of the accused for any other offence provided the accused could be charged with that offence at the same trial under the provisions of the Code of Criminal Procedure
The proviso does not say that the charge must be framed though of course if the trial Court itself tries the accused for a certain offence it will ordinarily frame a charge
The proviso empowers a Court to try the accused for that offence and has nothing to do with the power of the trial court or of the appellate Court to record a conviction for any other offence when an accused is being tried with respect to an offence mentioned in the Schedule
The Court s power to take recourse to the provisions which empower it to record a conviction for an offence not actually charged depends on other provisions of the Code and the Act
Section 52 of the Act provides that the provisions of the Code of Criminal Procedure so far as they are not incon sistent with the Act would apply to the proceedings of the Special Court and for the purposes of these provisions the Special Court could be deemed to be a Court of Sessions
There is nothing in the provisions of section 237 of the Code of Criminal Procedure which is inconsistent with the provisions of the Act
Section 237 simply empowers the Court to convict an accused of the offence with which he could have been charged under section 236 even when he had not been charged with it
Section 237 really deals with the final orders which the Court can pass on a trial of an accused for a certain offence
In view of the proviso to sub section
1 of section 4 the Special Court could have tried the appellant for the offence under section 420 IPC
It did not actually try him for that offence
It was however open to it and to the appellate Court to convict him of the offence under section 420 IPC when trying for an offence under section 409 IPC in view of section 237 of the Code
It has also been urged for the appellant that the proviso to section 4 does not give any power to the Special Court to try an offence which be independent of the offence mentioned in the allotment order
That is to say the Special Court in this case could have tried the appellant only for such offences which will be in some way related to the offence under section 409 IPC
It is further urged that the ingredients of the offence under section 420 IPC are absolutely different from the ingredients of the offence under section 409 IPC 81 The ingredients of two must be different from one another and it is therefore not necessary to consider whether the ingredients of the two offences are in any way related
The Court has to see for the purpose of the proviso  whether the accused could be charged with any offence other than the one referred to in the allotment order in view of the provisions of the Code
There is nothing in the proviso which could lead to the construction that any limitations other than those laid down by the provisions of the Code of Criminal Procedure were to affect the nature of the offence which could be tried by the Special Court
We are therefore of opinion that the Special Court could try the appellant for the offence under section 420 IPC and that therefore the High Court was right in altering his conviction from that under section 409 to section 420 IPC
We have already referred to the statement in the chargesheet that the appellant presented a false bill to the State Bank and cashed it
This allegation is sufficient for the pur pose of the offence under section 420 IPC
It was not necessary to allege or to prove that the appellant himself had prepared the false bill
Such an allegation could not be made in the present case in particular as the bill which was cashed on October 6 could not be traced
The presentation of the bill for encashment carries with it the representation that it is a genuine bill and therefore the allegations in the case attributed misrepresentation to the appellant at the time he presented the bill
It may be mentioned here that if the bill had been a genuine bill the offence made out in the present case would have been an offence under section 409 IPC
In the circumstances therefore the appellant cannot be said to be prejudiced in his conviction under section 420 IPC on account of the non framing of the charge and consequent non trial under section 420 IPC
In fact in the circumstances of the case no question of irregularity in the trial arises
The framing of the charge under section 420 IPC was not essential and section 237 Cr
P C itself justifies his conviction of the offence under section 420 if that be proved on the findings on the record
The last contention for the appellant was that the sentence is severe
We do not consider a sentence of 1 year s rigorous imprisonment and a fine of Rs 2000 severe
The appeal therefore fails and is dismissed
Appeal dismissed


Summary:
The appellant was tried and convicted by the Special Judge for an offence under section 409 IPC and sentenced to rigorous imprisonment for two years and to pay a fine of  Rs 2000
On appeal the High Court altered his conviction from an offence under section 409 to one under section 420 IPC for cheating the employees of the State Bank by representing a bill as a genuine bill drawn by the Sub Divisional Health Officer and thereby dishonestly inducing the Bank s Staff to make over the sum of Rs 1763 6 0 to him and sentenced him to rigorous imprisonment for one year and to a fine of Rs 2000
On appeal by certificate the appellant mainly contended i that a case under section 420 IPC could not be allotted for trial to a Special Court by the Government when such an offence was not committed by a public servant while purport ing to act as such public servant ii that the Special Court could not take recourse to the provision of section 237 Code of Criminal Procedure and if it could the requirements of section 237 Code of Criminal Procedure were not satisfied and consequently the High Court could not have altered the conviction from section 409 IPC to one under section 420 and iii that the accused had been prejudiced  on account of the absence of a charge under section 420 IPC Held i that on the facts proved it must be held that the offence under section 420 committed by the appellant would be committed by him as a public servant purporting to act as such and that a case involving this offence also could have been allotted to the Special Court by the Government for trial
The Special Court was therefore competent to try the accused for this offence if the facts proved established it Besides the appellant could be tried by the Special Court for this offence in view of the proviso to section 4 of the West Bengal Criminal Law Amendment Act
Bhajahari Mondal vs State of West Bengal 1959 SCR 1276 distinguished
ii that at the trial of the appellant for an offence under section 409 IPC in this case the appellant could have also been charged for an offence under section 420 IPC in view of section 236 of  the Code of Criminal Procedure
71 In view of the proviso to sub section 1 of section 4 of the Act the Special Court could have tried the appellant for the offence under section 420 IPC
It did not actually try him for that offence
It was however open to it and to the appellate court to convict him of the offence under section 420 IPC when trying for an offence under section 409 IPC in view of section 237 of the Code of Criminal Procedure
iii that in the present case the appellant could not be said to be prejudiced in his conviction under section 420 IPC on account of the non framing of the charge and consequent non trial under section 420 IPC
In fact no question of irregularity in the trial arises
The framing of the charge under section 420 IPC was not essential and section 237 Code of Criminal Procedure itself justifies his conviction of the offence under section 420 if that be proved on the findings on the record
Case Law discussed