LexSRICHAND K. KHETWANI versus STATE OF MAHARASHTRA
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SRICHAND K. KHETW ANI V.· STATE OF MAHARASHTRA September 27, 1966 B [V. RAMASWAMI, V. BHARGAVA AND RAGHUBAR DAYAL, JJ.j c D r H Code of Criminal Procedure, s. 23.2-Indian Penal Code s. 1208- Trial for conspiracy-Lic-ences issued to bogus firms-Eight such licences issued-Whether one conspz'racy or eight conspiracies-Charge. Indian Evidence Act, ss. 45 and 114--Specimen writing of accused obtained but not. sent to hand-writing expert--Court whether can con ... sider possible reasons for not sending the same, apart from explanation given by investigliting officer-Adverse inference whether may be ·drawn against prosecution. The appellant \Vas tried and convicted along with certain others under s. 120-B read with ss. 409 and 5(2) read withs. 5(l)(d) of the Preven- tion of Corruption Act. The accused were alleged_, in pursuance of a conspiracy, to have arranged the issue of a number of licences for the import of motor vehicles and motor vehicle parts, to a number of com~ panies which had no existence. Against the appellant the specific allega- tion was that he had received the delivery by post of two such licences and had signed the acknowledgment ·receipt. The appellant along with others was convicted by the trial court, and his conviction -having been upheld by the High Court, he came to this Court by special leave. The material questions that came up for consideratioft were : ( 1) whether the charge at the trial was not defective -since it mentioned only one conspiracy for the issue of all the licences whereas eight licences had been issued and · there were therefore eight conspiracies; (2) whether the High· Court was right in taking into account reasons other than tho~ given by the investigating officer as an explanation of his failure to send the specimen handwriting of the appellant' to the handwriting :expert for opinion. HELD : (i) The charge of conspiracy was not that the conspiracy was entered into with each bogus individual firm for the benefit of that firm alone in connection \Vith the issue of licences to that particular firm. The charge was that out of the profits made from acts done in further- ance of the conspiracy, all the persons in the conspiracy were to bendit. [598 13-C] The. conspiracy was a general conspiracy to keep on issuing licences in the names of fi~titious firms and to share the benefits arising out of those licences when no real independent person was the licensee. The various members of the conspiracy other than the two public servants must have joined \vith the full knowledge of the modus operandi of the conspiracy and with the intention and object of sharing the profits aris- ing out of the acts of the conspirators. It could not therefore be said that the mere fact that licences were issued in the names of eight differ- ent companies 'makes out the case against the appellant and the other conspirators to be a case of eight different conspiracies each with respect to the licenc"" issued to one particular fictitious company. [598 DJ R. v. Griffiths, [1965] 2 All E.R. 448, distinguished. (iiJ The High Court could not be said to have been in erro·r· in con- sidering other reasons besides those given by the investigating officer ;'nd 596 SUPllEMI! COUl.T IBPOllTS (1967] I S.C.Jl. holding that no adverse inference could be drawn against the prosecution from the fact that the opinion of the handwritin~ expert h>d not been obtained with re<pect to the acknowledgment receipt. (600 CJ Further, an adverse inference against the prosecution can be drawn onty if it withholds certain· evidence and not merely on account of its failure to obtain certain evidence. When no such evidence has been ob- tained. it c-Jnnot be said what that evidence would have been and the"'- fore no question of presuming that the evidence would have been against the prosecution under s. 114, illustration (g) of the Evidence Act can arise. [600 D-E] CRIMl~AL APPELLATE JURISOICTIO!'< : Criminal Appeal No. 184 of 1964. Appeal by special leave from the judgment and order dated July 16, 1964 of the Bombay High Court in Criminal Appeal No. 1858 of 1962. R. Jethamalani and P. Kapila. lfi11gora11i, for the appellant. O. P. Rana and B. R. G. K. Achar, for the respondent. The Judgment of the Court was delivered by Ragbuhar Dayal, J. A. G. Nelson, Assistant Controller of Imports, f'..H. Shingrani, Upper Division Clerk in the Quota Licensing Section of
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