HUGH FRANCIS BELLGARD Vs. EMPEROR

JUDGEMENT

(1.) The appellants before us were tried by the Assistant Sessions Judge of Rajshahi and a common jury. Nine charges were framed against each of the two appellants. Against the appellant Bellgard were framed three separate charges of cheating punishable under Section 420, Indian Penal Code, three separate charges of forgery punishable under Section 467, Indian Penal Code, and three separate charges of falsification of accounts punishable under Section 477A, Penal Code. Against the appellant Missir were framed three separate charges of cheating punishable under Sec. 420, Indian Penal Code, three separate charges of abetment of forgery punishable under Section 467, read with Section 109, Indian Penal Code, and three separate charges of abetment of falsification of accounts punishable under Section 477A, Indian Penal Code. The jury returned a unanimous verdict of not guilty in respect of the three charges of forgery against Bellgard and in respect of the three charges of abetment of forgery against Missir; but they returned a majority verdict - 3 against 2 - in respect of the remaining charges. The majority of the jury found Bellgard guilty on all three charges of cheating and on all three charges of falsification of accounts : they also found Missir guilty not of cheating but of abetment of cheating on all three counts, and also on all three charges of abetment of falsification of accounts. The learned Judge accepted the majority verdict, acquitted Bellgard of the charges of forgery and Missir of the charges of abetment of forgery. The learned Judge convicted Bellgard on the remaining six charges, and sentenced him on each charge to undergo four years and six months rigorous imprisonment. The learned Judge also convicted Missir on the six charges of which the jury had found him guilty and sentenced him on each charge to undergo four years and six months rigorous imprisonment. All the sentences on each of the two accused were to run concurrently.

(2.) Against these convictions and sentences the present appeal has been preferred. The principal ground of appeal is that there was a misjoinder of charges and that the trial was held in contravention of the provisions of Section 233, Criminal P. C, and that consequently the convictions and sentences (and also, incidentally, the acquittals on the charges of forgery and abetment of forgery) were illegal. To appreciate the argument it is necessary to give a brief outline of the prosecution case. According to the prosecution, appellant Bellgard was an Assistant Permanent Way Inspector on the Abdulpur Chapai Nawabganj section of the Eastern Bengal Railway throughout the period with which we are concerned, and it was his duty to maintain the permanent way in a proper state of repair. He had under his control a number of gangs of workmen, each consisting of a mate and eight or ten khalasis. During the rainy season of 1938 there were heavy rains and floods in the area through which the Abdulpur Chapai Nawabganj Section of the railway runs. Water rose above the level of the permanent way : The Sitlai bridge was threatened and ultimately on 27 August 1938 collapsed on account of the floods. To meet this emergency Bellgard applied to his superiors for sanction to employ additional temporary gangs and sanction was given. When sanction is given for the employment of temporary additional workmen, the procedure adopted on the Eastern Bengal Railway is as follows : The Assistant Permanent Way Inspector, or his subordinates ascertain the names and addresses of persons in the locality who are willing to work in temporary gangs. These persons are divided into gangs and one of their number is chosen as mate for each of the gangs. A muster sheet is drawn up for each such gang and in it is noted the name of the mate and each of the khalasis. This muster sheet is made over to the mate, and it is the duty of the latter to mark the attendance of each member of the gang present and working on each date. On a fixed date in each month, the muster sheets are made over to the Assistant Permanent Way Inspector and by him forwarded to the accounts office where the pay sheets are drawn up from the muster sheets. Then a pay clerk is sent out from the head office with the pay sheets and the pay of the gangs. The pay clerk travels along the line until he meets a gang at work. Then he stops and pays the gang. The rules require that there shall be a witnessing officer present at the time of such payment. The names of the workmen in the gang are called out, the man steps forward and gives his thumb impression on the pay sheet and the impression is initialled by the witnessing officer. The man is then paid by the pay clerk. It may happen that several gangs are paid at the same place, as the date on which payment is to be made is known beforehand and the gangs collect at convenient places. When all present have been paid, the pay clerk goes on until he meets more gangs.

(3.) As stated above the employment of temporary additional gangs was sanctioned to deal with the situation arising out of the unusually heavy floods. These gangs were sanctioned for a month at a time. Each month, a new application for sanction was made and a new sanction granted. In this way additional temporary gangs were sanctioned for the Abdulpur Chapai Nawabganj section in the months of July, August, September, October, November and December 1938. The work, for the performance of which these gangs were sanctioned, was performed to the entire satisfaction of the superior officers of the engineering department of the railway. But, when the pay sheets were examined in the accounts office of the railway, it was discovered that the same thumb impression sometimes occurred against more than one name in the same pay sheet and sometimes occurred against different names in different pay sheets. A report to this effect was submitted by the accounts department, and as a result an enquiry was started. The railway administration came to the conclusion that no temporary gangs had in fact been employed in the Abdulpur Chapai Nawabganj section, and that appellant Bellgard with the assistance of appellant Missir had falsely represented to his superiors that the gangs had been employed, had made false entries in the muster sheets to show as present on each day, men who did not actually work in the gangs and further had induced men to come forward and claim the pay of the persons named in the pay sheets knowing that the men so claiming the pay were not the persons whose names were read out. In this way it is said that Bellgard cheated the railway administration by forging muster sheets and pay sheets, and falsifying the same documents and that Missir aided and abetted him in these crimes. The charges drawn up against Bellgard were as follows: 1. That you, H.F. Bellgard, between the 1 day of September 1938 and 23 day of September 1938 between Rajshahi and Nawabganj Railway Stations within Iswardi G. R. P. S. cheated E.B. Railway administration by dishonestly and fraudulently inducing the said administration by presentation of fraudulent and forged muster roll and pay sheets of temporary gangs of A. N. Section within the Engineering District of Paksey for this month to part with the amount of money to wit, Rs. 1694-4-0 and deliver the same to you, by wrongful disbursement, which act caused damage to the said railway administration, and thereby committed an offence punishable under Sec. 420, Indian Penal Code....