Supreme Court of India
UNION OF INDIA THROUGH ITS SECRETARY MINISTRY OF DEFENCEversusRABINDER SINGH
- Citation
- 2011 INSC 727
- Decided
- 29 September 2011
- Bench
- M PANCHAL
Holding
Section 52(f) of the Army Act comprises two disjunctive clauses, and a conviction for "intent to defraud" is valid even without an explicit allegation of wrongful gain, provided deceit and injury are proved.
Summary
The appellant Union of India alleged that Major Rabinder Singh, while commanding the 6 Armoured Regiment, fraudulently countersigned bills to claim Rs.77,692 for vehicle modifications that were never carried out, resulting in wrongful loss to the Army. A Court of Inquiry and a General Court Martial found him guilty under Section 52(f) of the Army Act, 1950, imposing one year rigorous imprisonment and cashiering. The respondent challenged the conviction in a writ petition; a Single Judge of the High Court dismissed it, but the Division Bench reversed that decision, holding the charge of wrongful gain was not proved. The Supreme Court held that the Division Bench erred by ignoring material evidence of deceit and injury, and that the two parts of Section 52(f) are disjunctive, so the charge of "intent to defraud" sufficed. Consequently, the Supreme Court set aside the Division Bench order, confirmed the Single Judge's decision, and dismissed the respondent's writ petition.
Issues considered
- Whether the charge of "intent to defraud" under Section 52(f) of the Army Act is sufficient without expressly mentioning wrongful gain or loss.
- Whether the Division Bench erred in overlooking evidence of deceit and economic loss to the Army.
- Whether the procedural requirements of Rule 30(4) and Rule 42(b) of the Army Rules, 1954 were violated.
- Whether the General Court Martial's conviction and sentence can be interfered with by a higher court.
Legislation cited
- Army Act, 1950s. 52(f)
Subjects
Army ActSection 52(f)intent to defraudcourt martialmilitary disciplinefraudcivil appealhigh courtdivision benchsingle judgeprocedural fairness
Judgment
[2011] 15 (ADDL.) S.C.R. 793
UNION OF INDIA THROUGH ITS SECRETARY MINISTRY A
OF DEFENCE
v.
RABINDER SINGH
(Civil Appeal No. 7241 of 2002)
SEPTEMBER 29, 2011 B
[J.M. PANCHAL AND H.L. GOKHALE, JJ.]
Army Act, 1950 - s.52(f) - Respondent was a
Commanding Officer of the 6 Armoured Regiment in the C
Indian Army - A/legation that he P.roceeded to order
modification of some vehicles and countersigned bills, and
.claimed and received amounts by preferring different claims,
though not a single vehicle came to be modified and no items
necessary for modification were purchased - General Court D
Martial found him guilty and awarded punishment of R.I. for
one year and cashiering - Respondent filed writ petition which
was dismissed by a Single Judge of the High Court but appeal
therefrom was allowed by the Division Bench - On appeal,
held: The Division Bench ignored the fact that the E
countersigning led to withdrawal of an amount of Rs. 77, 692/-
by the respondent for certain purchases which were neither
authorized nor effected - There was economic loss suffered
by Army - There was a complete non-utilisation of amount
for the purpose for which it was claimed to have been sought F
- There was deceit and injury-s.52 (f) of the Act was clearly
attracted since respondent had acted with intent to defraud -
Any Army 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 - The Single G
Judge rightly declined to interfere with the decision rendered
by the General Oourt Martial - The Division Bench clearly
e"ed in exercising its appellate power when there was no
occasion or reason to exercise the same -Army Rules, 1954
- ".30(4) and 42(b). '·
793 H
;
794 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A Army Act, 1950 - s. 52(f) - Two parts of - Interpretation
of - Held: The two parts of s. 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
B 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'.
The first respondent was deployed as the
Commanding Officer of the 6 Armoured Regiment in the
C 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
amount.
D
It is the case of the appellant that the respondent
proceeded to order modification of some 65 vehicles in
two lots, first 43 and thereafter 22 and he countersigned
bills, and claimed and received an amount of Rs.77,692/
E - by preferring four different claims, though not a single
vehicle came to be modified; that no such items
necessary for modification were purchased, but fictitious
documents and pre-receipted bills were procured; and
that though, the counter-foils of the cheques showed the
F names of some vendors, the amount was withdrawn by
the respondent himself.
This led to the conducting of the Court of Inquiry to
collect evidence and to make a report. On conclusion of
the inquiry, disciplinary action was directed against the
G respondent. Thereafter, the case against the respondent
was remanded for trial by a General Court Martial.
General Court Martial found him guilty and awarded
punishment of R.I. for one year and cashiering. The
respondent filed writ petition which was dismissed by a
H
UNION OF INDIA THROUGH ITS SECRETARY MINISTRY 795
OF DEFENCE v. RABINDER SINGH
Single Judge· of the High Court but appeal therefrom was A
allowed by the Division Bench leading to the present
appeal.
Allowing the appeal, the Court
HELD:1.1. The Division Bench of the High Court held B
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 ignored the fact that this C
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 D
necessary documentary a·nd oral evidence in support of
the charges during the course of the enquiry which was
conducted as per the provisions of the Army Act. The
enquiry records showed that these amounts were
supposed to have been paid to some shops but, in fact, E
no such purchases were effected. The respondent could
not give any explanation which could be accepted. The
Division Bench clearly erred in ignoring this material
evidence on record which clearly shows that the Army
did suffer wrongful loss. [Para 14] [804-F-H; 805-A-B] F
1.2. The text of the charges 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 G
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
H
796 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A certain shops but the necessary purchases were in fact
not made. There was 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
B 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
c 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. (Paras 16, 17] (806-C-E; 807-B-D]
1.3. The two parts of Section 52 (f) are disjunctive,
D 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
E wanted both these parts to be read together, it would
have used the conjunction 'and'. The appellants had
charged the respondents for acting with 'intent to
defraud', and therefore it was not ne~essary for the
appellants to refer to the second part of Section 52 (f) in
F the charge. (Para 17] (807-E-H]
1.4. 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,
G 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
H the charge of 'intent to defraud' and he defended the
UNION OF INDIA THROUGH ITS SECRETARY MINISTRY 797
OF DEFENCE v. RABINDER SINGH
same. He fully participated in the proceedings and there A
was no violation of any procedural provision causing him
prejudice. The Courts are not expected to interfere in
such situations. 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. B
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. [Para c
18] [808·A·D]
1.5. The 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 D
an intra-Court appeal. The order of the Single Judge in
no way could be said to be contrary to law or perverse.
On the other hand, the Division Bench clearly erred in
exercising its appellate power when there was no
occasion or reason to exercise the same. In the E
circumstances, the order passed by the Division Bench
is set aside, and the one passed by the Single Judge is
confirmed. Consequently, the Writ Petition filed by the
respondent stands dismissed. [Paras 19, 20] [a08-E-G]
F
Dr. Vim/a vs. Delhi Administration AIR 1963 SC 1572:
1963 Suppl. SCR 585 and Major G.S. Sodhi vs. Union of
India 1991 (2) SCC 382 - relied on .
S. Hamam Singh vs. State (Delhi Administration) AIR
1976 SC 2140 - referred to. G
Case Law Reference:
AIR 1976 SC 2140 Referred to Paras 15, 17
1963 Suppl. SCR 585 Relied on Para 16 H
798 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 1991 (2) sec 382 Relied on Para 18
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7241 of 2002.
From the Judgment & Order dated 2.7.2001 of the High
B Court of Punjab & Haryana at Chandigarh in Letters Patent
Appeal No. 996 of 1991 in Civil Writ Petition No. 955-A of
1989.
Parag P. Tripathi, ASG, R. Balasubramanium, Amey
c Nargolkar, Mahima Gupta, B.V. Balaram Das for the
Appellants.
Seeraj Bagga (for Sureshta Bagga) for the Respondent.
The Judgment of the Court was delivered by
D
H.L. GOKHALE J. 1. 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 LP.A. No.996
E 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 fir;! respondent.
F 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 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.1.) for
G 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
H Regiment which was a new raising at the relevant lime in the
UNION OF INDIA THROUGH ITS SECRETARY MINISTRY 799
OF DEFENCE v. RABINDER SINGH [H.L. GOKHALE, J.]
Indian Army. The unit was authorized for one signal special A
_ 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.
B
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 C
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 D
such items necessary for modification were purchased, but
fictitiOU!! documents and pre-receipted bills were procured.
Though, the counter-foils of the cheques showed the names of
some vendors, the amount was withdrawn by the respondent
himself. When the annual stock-taking was done, the non- E
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 F
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 G
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.
H
800 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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:-
B
"The acoused, 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:-
c (1) such an offence as is mentioned in Clause {f) of
Section 52 of the Army Act
(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
D
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 2-5 June
84 feti,Rs.31692/- for claiming an advance of 75%
entitlement of cost of modification of 43 vehicles,
E 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
F 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
G claiming an advance of 75% en'.'tlement of cost of .
modification of 22 vehicles, Wl'lll 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
H
'
'UNION OF INDIA THROUGH ITS SECRETARY MINISTRY 801
OF DEFENCE v. RABINDER SINGH [H.L. GOKHALE, J.)
Section 52 of the Army Act with intent to defraud, A
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, B
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, C
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 D
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 E
cashiering. The proceedings were thoroughly reviewed by the
Deputy Judge-Advocate General, 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. F
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 G
leave.
8. We have heard Shri Pa rag P. Tripathi, learned
Additional Solicitor General appearing on behalf of the appellant
and Shri Seeraj Bagga, learned counsel appearing on behalf
of the respondent. H
802 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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:-
B
"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·
c 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
D
(c) commits criminal breach of trust in respect of any such
property;. or
(d) dishonestly receives or retains any such property in
respect of which any of the offences under clauses (a), (b)
E 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 (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
G
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
H the respondent and corresponding loss to the army, nor was it
UNION Ol= INDIA THROUGH ITS SECRETARY MINISTRY 803
OF DEFENCE v. RABINDER SINGH [H.L. GOKHALE, J.]
proved, and therefore the charge of doing something with intent A
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 B
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 C
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 modification of the vehicles was done. That being so, the D
· 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 E
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 F
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 G
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."
H
804 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A "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."
B 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.
C Consideration of rival submissions -
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
D 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
E 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
F modifications of the vehicles, but there was no charge of
wrongful gain against him. The Division Bench, however,
ignored the fact that this countersig!ling 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
G 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
H the record of the enquiry. It showed that these amounts were
UNION OF INDIA THROUGH ITS SECRETARY MINISTRY 805
OF DEFENCE v. RABINDER SINGH [H.L, GOKHALE, J.)
supposed to have been paid to some shops but, in fact, no such A
purchases were effected. The respondent could not give any
explanation which could be accepted. The Division Bench has
clearly erred in ignoring this material evidence on record which
clearly shows that the Army did suffer wrongful loss.
8
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 C
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 D
context, it has referred to a judgment of this Court in S. Hamam
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 1208 of the Code read with E
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 F
manner. The Code, however, does not contain a definition of
the words 'intent to defraud'. This Court, therefore, observed
in paragraph 18 as follows:-
"18 ........... The Code does not contain any precise
and specific definition of the words "intent to defraud". G
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, H
806 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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
8
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.
C 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
D resporident 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. Vim/a Vs. Delhi Administration
E 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
F given their different meanings. It further noted that while the term
'dishonestly' as defined under Section 24 of IPC, talks about
wrongiul 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
G 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
H elements, namely, deceit and injury to the person deceived.
UNION OF INDIA THROUGH ITS SECRETARY MINISTRY 807
OF DEFENCE v. RABINDER SINGH [H.L. GOKHALE, J.]
Injury is something other than economic loss that is, A
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 ....... :·
B
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, C
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 D
respondent had acted with intent to defraud within the
explanation of the concept as rendered by this Court in S.
Hamam Singh (supra) which had specifically referred to and
followed the law laid down earlier in Dr. Vim/a (supra). We
accept the submission of Shri Tripathi that the two parts of E
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 F
these parts to be read together, it would have used the
conjunction 'and'. As we have noted earlier in Dr. Vim/a (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 G
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.Hamam Singh (supra) to justify the
conclusions drawn by it was clearly erroneous. H
808 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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
B 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 procedural provision causing him prejudice. The Courts are
c 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
D 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
E 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
F 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-
G 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.
B.B.B. Appeal allowed.
H
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