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

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

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