REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 7241 OF 2002
Union of India through its Secretary
Ministry of Defence ... Appellants
Versus
Rabinder Singh ... Respondent
J U D G E M E N T
H.L. Gokhale J.
This appeal by Union of India through the Secretary to
Government, Ministry of Defence seeks to challenge the judgment and order
passed by a Division Bench of the Punjab and Haryana High Court in L.P.A.
No.996 of 1991 dated 2.7.2001 whereby the Division Bench has allowed the
appeal filed by the first respondent from the judgment and order rendered by a
Single Judge of that Court dated 31.5.1991 in C.W.P. No.995-A of 1989 which
had dismissed the said Writ Petition filed by the first respondent.
2. The Division Bench has allowed the said petition by its impugned
order and set aside the proceedings, findings and sentence of the General Court
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Martial held during
24.6.1987 to 1.10.1987 against the first respondent by which he was awarded
the punishment of Rigorous Imprisonment (R.I.) for one year and cashiering.
The facts leading to this appeal are as follows:-
3. The first respondent was deployed between 1.2.1984 and
3.10.1986 as the Commanding Officer of the 6 Armoured Regiment which was a
new raising at the relevant time in the Indian Army. The unit was authorized for
one signal special vehicle. In case such a vehicle was not held by the unit it was
authorized to modify one vehicle with ad-hoc special finances for which it was
authorized to claim 75% of Rs.950/- initially and claim the balance amount on
completion of modification work.
4. It is the case of the appellant that the unit had sent a claim for
75% of the amount (i.e. Rs.450/- as per the old rates) for modification of one
vehicle, but the same was returned for want of justifying documents by the audit
authorities. Yet the respondent proceeded to order modification of some 65
vehicles in two lots, first 43 and thereafter 22. There is no dispute that he
countersigned those bills, and claimed and received an amount of Rs.77,692/- by
preferring four different claims. The case of the appellant is that not a single
vehicle came to be modified, the money was kept separately and the expenditure
was personally controlled by the respondent. No such items necessary for
modification were purchased, but fictitious documents and pre-receipted bills
were procured. Though, the counter-foils of the cheques showed the names of
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some vendors, the
amount was withdrawn by the respondent himself. When the annual stock-
taking was done, the non-receipt of stores and false documentation having taken
place was found entered in the records.
5. (i) This led to the conducting of the Court of Inquiry on 13.10.1986 to
collect evidence and to make a report under Rule 177 of the Army Rules, 1954
framed under Section 191 of the Army Act, 1950. On conclusion of the inquiry a
disciplinary action was directed against the respondent.
(ii) Thereafter, the summary of evidence was recorded under Rule 23
of the Army Rules, wherein the respondent duly participated. Some 15 witnesses
were examined in support of the prosecution, and the respondent cross-
examined them. He was given the opportunity to make a statement in defence,
but he declined to make it.
6. Thereafter, the case against the respondent was remanded for trial
by a General Court Martial which was convened in accordance with the
provisions under Chapter X of the Army Act. The respondent was tried for four
charges. They were as follows:-
"The accused, IC16714K Major Deol Rabinder Singh, SM, 6
Armoured Regiment, attached Headquarters 6(1) Armoured
Brigade, an officer holding a permanent commission in the Regular
Army is charged with:-
(1) such an offence as is mentioned in Clause (f) of Section 52
of the Army Act
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(2) with
intent to defraud, in that he, at field on 25 June 84, while commanding 6
Armoured Regiment, when authorized to claim modification grant in
respect of only one truck one tonne 4 x 4 GS FFR, for Rs. 950/-, with
intent to defraud, countersigned a contingent bill No.1096/LP/6/TS dated
25 June 84 for Rs.31692/- for claiming an advance of 75% entitlement of
cost of modification of 43 vehicles, which was passed for Rs.31650/-, well
knowing that the Regiment was not authorized to claim such grant in
respect of all types of vehicles.
Such an offence as is mentioned in clause (f) of Section 52
of the Army Act with intent to defraud, in that he, had filed
on 5 March 85, while commanding 6 Armoured Regiment,
with intent to defraud, countersigned a contingent bill
no.1965/ULPG/85/TS dated 5 March 85 for Rs.20962.50 for
claiming an advance of 75% entitlement of cost of
modification of 22 vehicles, well knowing that the Regiment
was not authorized to claim such grant in respect of all
types of vehicles.
Such an offence as is mentioned in Clause (f) of Section 52
of the Army Act with intent to defraud, in that he, had filed
on 9 Feb 85, while commanding 6 Armoured Regiment, with
intent to defraud, countersigned a final contingent bill
No.1965/LP/02/TS dated 9 Feb 85 for Rs.18150/- for
claiming the balance of the cost of modification of vehicles,
which was passed for Rs.18149.98 well knowing that the
Regiment was not authorized to claim such grant in respect
of all types of vehicles.
Such an offence as is mentioned in Clause (f) of Section 52
of the Army Act with intent to defraud, in that he, had filed
on 9 Sep 85, while commanding 6 Armoured Regiment, with
intent to defraud, countersigned a final contingent bill
No.1965/LP/04/TS dated 9 Sep 85 for Rs.6987.50/- for
claiming the balance of the cost of modification of vehicles,
well knowing that the Regiment was not authorized to claim
such grant in respect of all types of vehicles."
7. The General Court Martial found him guilty of all those four
charges, and awarded punishment of R.I. for one year and cashiering. The
proceedings were thoroughly reviewed by the Deputy Judge-Advocate General,
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Headquarter,
Western Command who made the statutory report thereon. These proceedings
were confirmed by the confirming authority on 20.6.1988 in terms of Sections
153 and 154 of the Army Act. The respondent preferred a Post Confirmation
Petition under Section 164 of the Army Act which was rejected by the Chief of
the Army. This led the respondent to file the Writ Petition as stated above which
was dismissed but the Appeal therefrom was allowed leading to the present Civil
Appeal by special leave.
8. We have heard Shri Parag P. Tripathi, learned Additional Solicitor
General appearing on behalf of the appellant and Shri Seeraj Bagga, learned
counsel appearing on behalf of the respondent.
9. Before we deal with the submissions by the rival counsel, we may
note that the respondent was charged under Section 52 (f) of the Army Act,
1950 and the Section was specifically referred in the charges leveled against him.
Section 52 reads as follows:-
"52. Offences in respect of property - Any person
subject to this Act who commits any of the following offences, that
is to say,-
(a) commits theft of any property belonging to the
Government, or to any military, naval or air force mess,
band or institution, or to any person subject to military,
naval or air force law, or
(b) dishonestly misappropriates or converts to his own use
any such property; or
(c) commits criminal breach of trust in respect of any such
property; or
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(d) dishonestly receives or retains any such property in
respect of which any of the offences under clauses (a), (b)
and (c) has been committed, knowing or having reason to
believe the commission of such offence; or
(e) willfully destroys or injures any property of the
Government entrusted to him; or
(f) does any other thing with intent to defraud, or to
cause wrongful gain to one person or wrongful loss to
another person,
shall, on conviction by court-martial, be liable to suffer
imprisonment for a term which may extend to ten years or such
less punishment as is in this Act mentioned."
10. Shri Tripathi learned ASG appearing for the appellant submitted
that the Division Bench erred in holding that the particulars of the charges did
not include the wrongful gain to the respondent and corresponding loss to the
army, nor was it proved, and therefore the charge of doing something with
intent to defraud had not been conclusively proved. In his submission, sub-
section (f) is in two parts. In fact, the Division Bench of the High Court also
accepted that there are two parts of this Section. The respondent was charged
with the first part which is `doing something with intent to defraud'. Therefore, it
was not necessary to mention in the charge the second part of the sub-section
which covers `wrongful gain to one person or wrongful loss to another'.
11. The offence with which the respondent was charged was doing
something with intent to defraud. According to the respondent, the act
attributed to him was only to countersign the contingent bills. The fact is that
the Army got defrauded by this countersigning of the contingent bills by the
respondent, inasmuch as no such purchases were authorized and in fact no
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modification of the
vehicles was done. That being so, the charge had been established. The
respondent cannot escape from his responsibility. It was pointed out on behalf
of the appellant that assuming that the latter part of section 52 (f) was not
specifically mentioned in the charge, no prejudice was caused to the respondent
thereby. He fully understood the charges and participated in the proceedings.
12. Shri Seeraj Bagga, learned counsel for the respondent on the other
hand, submitted that Rule 30 (4) and Rule 42 (b) of the Army Rules mandatorily
require the appellant to make the charges specifically. His submission was that
the charges were not specific and the respondent did not get an idea with
respect to them and, therefore, he suffered in the proceedings. We may quote
these rules. They read as follows:-
"Rule 30(4). The particulars shall state such circumstances
respecting the alleged offence as will enable the accused to know
what act, neglect or omission is intended to be proved against him
as constituting the offence."
"Rule 42 (b). That such charge disclose an offence under
the Act and is framed in accordance with the rules, and is so
explicit as to enable the accused readily to understand what he has
to answer."
Shri Bagga submitted that no evidence was produced with respect to wrongful
gain by the respondent and, therefore, the Division Bench was right in interfering
with the judgment rendered by the Single Judge as well as in the General Court-
Martial.
Consideration of rival submissions -
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13. We
have noted the submissions of both the counsels. When we see the judgment
rendered by the Single Judge of the High Court we find that he has held in
paragraph 19 of his judgment that the findings of the General Court Martial were
duly supported by the evidence on record, and the punishment had been
awarded considering the gravity of the offence. In paragraph 18, he has also
held that the respondent was afforded opportunity to defend his case, and there
was neither any illegality in the conduct of the trial nor any injustice caused to
him.
14. The Division Bench, however, held that the only allegation leveled
against the first respondent was that he had countersigned the contingent bills
for claiming the cost of modifications of the vehicles, but there was no charge of
wrongful gain against him. The Division Bench, however, ignored the fact that
this countersigning led to withdrawal of an amount of Rs.77,692/- by the
respondent for certain purchases which were neither authorized nor effected.
The fact that the respondent had countersigned the contingent bills was never in
dispute. The appellant placed on record the necessary documentary and oral
evidence in support of the charges during the course of the enquiry which was
conducted as per the provisions of the Army Act. We have also been taken
through the record of the enquiry. It showed that these amounts were supposed
to have been paid to some shops but, in fact, no such purchases were effected.
The respondent could not give any explanation which could be accepted. The
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Division Bench has
clearly erred in ignoring this material evidence on record which clearly shows
that the Army did suffer wrongful loss.
15. The Division Bench also took the view that the allegation against
the respondent did not come within the purview of intent to defraud. This is
because to establish the intent to defraud, there must be a corresponding injury,
actual or possible, resulting from such conduct. The Army Act lays down in
Section 3 (xxv) that the expressions which are not defined under this Act but are
defined under the Indian Penal Code, 1860 (Code for short) shall be deemed to
have the same meaning as in the code. The Division Bench, therefore, looked to
the definition of `dishonestly' in Section 24 and of `Falsification of accounts' in
section 477A of the code. In that context, it has referred to a judgment of this
Court in S. Harnam Singh Vs. State (Delhi Administration) reported in
[AIR 1976 SC 2140]. In that matter, the appellant was working as a loading
clerk in Northern Railways, New Delhi and he was tried under Section 477A and
Section 120B of the Code read with Section 5(2) of the Prevention of Corruption
Act. While dealing with Section 477A, this Court held in paragraph 13 of the
judgment that in order to bring home an offence under this Section, one of the
necessary ingredients was that the accused had willfully and with intent to
defraud acted in a particular manner. The Code, however, does not contain a
definition of the words `intent to defraud'. This Court, therefore, observed in
paragraph 18 as follows:-
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"18...........The Code does not contain any precise and
specific definition of the words "intent to defraud". However, it has
been settled by a catena of authorities that "intent to defraud"
contains two elements viz. deceit and injury. A person is said to
deceive another when by practising "suggestio falsi" or "suppressio
veri" or both he intentionally induces another to believe a thing to
be true, which he knows to be false or does not believe to be true.
"Injury" has been defined in Section 44 of the Code as denoting
"any harm whatever illegally caused to any person, in body, mind,
reputation or property"."
It was submitted on behalf of the respondent that in the instant case, it was not
shown that there was any wrongful gain on the part of the respondent and,
therefore, the Division Bench rightly interfered in the order passed by the
learned Single Judge as well as by the General Court Martial.
16. If we see the text of the charges, they clearly mention that the
respondent claimed advance for 43 vehicles initially and then 22 vehicles
subsequently by countersigning the contingent bills knowing fully well that his
Regiment was not authorized to claim such grants. Thus, the charges are very
clear, and the respondent cannot take advantage of Rule 30(4) and Rule 42(b),
in any manner whatsoever. The Army had led additional evidence to prove that
the amount was supposed to have been passed on to certain shops but the
necessary purchases were in fact not made. In Dr. Vimla Vs. Delhi
Administration reported in [AIR 1963 SC 1572], a bench of four judges of
this Court was concerned with the offence of making a false document as
defined in Section 464 of the Code. In paragraph 5 of its judgment the Court
noted that Section 464 uses two adverbs `dishonestly' and `fraudulently', and
they have to be given their different meanings. It further noted that while the
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term `dishonestly'
as defined under Section 24 of IPC, talks about wrongful pecuniary/economic
gain to one and wrongful loss to another, the expression fraudulent is wider and
includes any kind of injury/harm to body, mind, reputation inter-alia. The term
injury would include non-economic/non-pecuniary loss also. This explanation
shows that the term `fraudulent' is wider as against the term `dishonesty'. The
Court summarized the propositions in paragraph 14 of the judgment in the
following words:-
"14. To summarize: the expression "defraud" involves two
elements, namely, deceit and injury to the person deceived. Injury
is something other than economic loss that is, deprivation of
property, whether movable or immovable, or of money, and it will
include any harm whatever caused to any person in body, mind,
reputation or such others In short, it is a non-economic or non-
pecuniary loss........"
17. In the instant case, there was an economic loss suffered by Army,
since an amount was allegedly expended for certain purchases when the said
purchases were not authorized. Besides, the expenditure which was supposed to
have been incurred for purchasing the necessary items was, in fact found to
have been not incurred for that purpose. There was a complete non-utilisation
of amount for the purpose for which it was claimed to have been sought. The
evidence brought on record is sufficient enough to come to the conclusion that
there was deceit and injury. Therefore, it was clear that Section 52 (f) of the Act
would get attracted since the respondent had acted with intent to defraud within
the explanation of the concept as rendered by this Court in S. Harnam Singh
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(supra) which had
specifically referred to and followed the law laid down earlier in Dr. Vimla
(supra). We accept the submission of Shri Tripathi that the two parts of Section
52 (f) are disjunctive, which can also be seen from the fact that there is a
comma and the conjunction `or' between the two parts of this sub-section, viz (i)
does any other thing with intend to defraud and (ii) to cause wrongful gain to
one person or wrongful loss to another person. If the legislature wanted both
these parts to be read together, it would have used the conjunction `and'. As we
have noted earlier in Dr. Vimla (supra) it was held that the term `fraudulently' is
wider than the term `dishonestly' which however, requires a wrongful gain and a
wrongful loss. The appellants had charged the respondents for acting with `intent
to defraud', and therefore it was not necessary for the appellants to refer to the
second part of Section 52 (f) in the charge. The reliance by the Division Bench
on the judgment in S.Harnam Singh (supra) to justify the conclusions drawn
by it was clearly erroneous.
18. The respondent had full opportunity to defend. All the procedures
and steps at various levels, as required by the Army Act were followed and it is,
thereafter only that the respondent was cashiered and sentenced to R.I. for one
year. There was no allegation of malafide intention. Assuming that the charge of
wrongful gain to the respondent was not specifically averred in the charges, the
accused clearly understood the charge of `intent to defraud' and he defended the
same. He fully participated in the proceedings and there was no violation of any
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procedural provision
causing him prejudice. The Courts are not expected to interfere in such
situations (see Major G.S. Sodhi Vs. Union of India reported in 1991 (2)
SCC 382). The armed forces are known for their integrity and reputation. The
senior officers of the Armed Forces are expected to be men of integrity and
character. When any such charge is proved against a senior officer, the
reputation of the Army also gets affected. Therefore, any officer indulging into
such acts could no longer be retained in the services of the Army, and the order
passed by the General Court Martial could not be faulted.
19. In our view, the learned Single Judge was right in passing the order
whereby he declined to interfere into the decision rendered by the General Court
Martial. There was no reason for the Division Bench to interfere in that order in
an intra-Court appeal. The order of the learned Single Judge in no way could be
said to be contrary to law or perverse. On the other hand, we would say that
the Division Bench has clearly erred in exercising its appellate power when there
was no occasion or reason to exercise the same.
20. In the circumstances, we allow this appeal and set-aside the order
passed by the Division Bench, and confirm the one passed by the learned Single
Judge. Consequently, the Writ Petition filed by the respondent stands dismissed,
though we do not order any cost against the respondent.
........................................J.
( J.M. Panchal )
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.........................................J.
( H.L. Gokhale )
New Delhi
Dated: September 29, 2011
