The Judgment of the Court was delivered by

Harries, C.J:— This is an appeal by one J.M Cohen who was convicted by an Additional Presidency Magistrate of an offence under sec. 120B of the Indian Penal Code read with sec. 7 (1) of Ordinance III of 1946. He was sentenced to six months' rigorous imprisonment and to pay a fine of Rs. 1,000. In default of payment of the fine, he was ordered to undergo a further period of six months' rigorous imprisonment.

2. Cohen was a director of a bank known as the Lall Bank and it is said that he was in charge of the finance side of the bank. The Managing Director of the Bank was a Mr. K. Lall, who was also the proprietor of a firm known as K. Lall & Co., Managing Agents of the Calcutta Marine Engineering Company. Cohen and Lall were charged along with Chitta Ranjan Bose, an accountant of the Calcutta Marine and Engineering Company and S.K Dutta, secretary of K. Lall and Company, and were tried together. Chitta Ranjan Bose and S.K Datta were acquitted, but Lall was convicted upon the charge of conspiracy and was sentenced to one year's rigorous imprisonment and a fine of Rs. 1,000 whereas Cohen received the lesser sentence of six months' rigorous imprisonment and a fine of Rs. 1,000. We are informed that since this conviction Lall has died. The charge eventually framed against these four persons was that they along with other persons had entered into a criminal conspiracy between January 12 and April 1, 1946, to commit an offence punishable with rigorous imprisonment for two years or upwards, to wit, an offence under sec. 7 (1) of Ordinance III of 1946 either by receiving into their possession from persons unknown high denomination notes in contravention of sec. 4 of that Ordinance or by instigating the making of false statements by different persons who were induced to make declarations under sec. 6 of the said Ordinance and in pursuance of which conspiracy the said accused persons received into their possession a large number of high denomination notes, which were set out in the charge, and had thereby committed an offence punishable under sec. 120B of the Indian Penal Code read with sec. 7 (1) of Ordinance III of 1946.

3. Ordinance III of 1946 was an ordinance passed to deal with high denomination bank notes, meaning bank notes of a denominational value of Rs. 500, Rs. 1,000 or Rs. 10,000. Sec. 3 of this Ordinance provided that after January 12, 1946, all high denomination bank notes should, notwithstanding anything contained in the Reserve Bank of India Act, 1934, cease to be legal tender in payment or on account at any place in British India.

4. Sec. 4 of the Ordinance provided that, save as provided by the Ordinance itself, no person could after January 12, 1946, transfer to the possession of another person or receive into his possession from another person any high denomination bank note.

5. Sec. 5 of the Ordinance dealt with the exchange of high denomination notes held by banks and Government treasuries. Sub-sec. (1) of that section provided that a bank, other than a scheduled bank, could obtain from the Reserve Bank or a scheduled bank an equivalent amount in bank notes, of the denominational value of one hundred rupees in exchange for the high denomination bank notes declared by it in the returns under the Bank Notes (Declaration of Holdings) Ordinance, 1946, and tendered for such exchange, or if it so desired, a credit of that amount with the Reserve Bank or a scheduled bank.

6. Sub-sec. (2) provided that a scheduled bank or a Government treasury could obtain from the Reserve Bank an equivalent amount in bank notes of the denominational value of one hundred rupees in exchange for any high denomination bank notes tendered for such exchange which had been declared by it in the returns under the aforesaid Ordinance or which had been received by it in exchange under this Ordinance, if a scheduled bank so desired a credit of that amount with the Reserve Bank.

7. Sec. 6 of the Ordinance deals with the exchange of high denomination bank notes held by other persons. Sub-sec. (1) provides:—

“…. any high denomination bank note held by a person other than a bank or Government treasury shall after the 12th day of January, 1946, be exchanged only on tender of the note for exchange by the owner thereof in the manner provided in this section”.

8. Sub-sec. (2) then goes on to provide:—

“Every such owner of a high denomination bank note desiring to tender it for exchange shall prepare in the form set out in the schedule or in a form as near thereto as may be, three copies of a declaration signed by him giving in full the particulars required by that form and shall, within ten days after the commencement of this Ordinance deliver such copies in person together with the high denomination bank notes he desires to exchange to a branch of the Reserve Bank or to a scheduled bank or to a Government treasury”.

9. Sub-sec. (3) provides:—

“Every declaration under this section shall, for the purpose of identifying the person making, it, be attested either by his banker or by a salaried magistrate or a Justice of the Peace or a police officer not below the rank of Inspect of Police”.

10. The next important sub-section is sub-sec. (5) which is in these terms:—

“The person who signs any declaration tinder this section shall be deemed for all purposes to be the owner of the high denomination bank notes to which it relates, and if it is proved that he is not in fact the owner of such bank notes, he and the owner thereof, unless in the case of the latter he can prove that the declaration was made without his knowledge, shall be deemed to have contravened the provisions of sec. 4”.

11. It will be seen that this Ordinance made-it extremely difficult for holders of high denomination notes to cash them for notes of a lower denomination. Forms had to be filled up and these forms, particularly paragraphs 15 and 16 of the schedule, required the holder of such notes to set out Low he acquired them and why he was retaining the money in that form.

12. It seems clear from the evidence in this case that the Lall Bank held a large number of these high denomination notes. How they acquired these notes is not clear, but they undoubtedly had them between the two dates mentioned in the charge.

13. The case for the prosecution was that in order to cash these notes at the Reserve Panic the four accused persons with others obtained declarations from a number of persons. These persons purported to make declarations with regard to the notes which, as I have said, were in possession of the Lall Bank. The forms were filled in as if the persons signing those forms owned the notes and desired to cash them themselves. The evidence for the prosecution was that none of the persons who signed these forms ever owned such notes and indeed it was suggested in most cases, could never have owned such notes. What was contended was that the four persons conspired together to devise a way of cashing these notes which the bank held. They obtained declarations from these persons and with those declarations the notes were presented to the Reserve Bank and were cashed.

14. It was suggested by the prosecution that the object of the conspiracy was two-fold. First, to transfer; to the possession of another person or receive into his possession from another person high denomination notes which was an offence under sec. 4 of the Ordinance. As I have said, there is no evidence as to how the Lall Bank acquired these notes. They did not acquire them from the persons who made the declarations, and, as I have said, they might have acquired them by illicit trade or in any other manner. Secondly, the other offence was that they obtained declarations required by sec. 6 from persons who were admittedly not the owners of the notes, and they used those declarations in order to cash these notes.

15. The main witness in the case was Raj Mohun Karanjai, P.W 1, who appears to have been a responsible official in the bank. He states that a number of people were procured who signed declarations respecting various notes held by the bank. He makes it clear that in the preparation of these declarations Lall, and Cohen the present Appellant, were actively concerned, and he also makes it clear that the declarants owned no high denomination notes at all. They were asked to sign declarations in respect of notes held by the bank itself.

16. There can be no question that if the evidence of Raj Mohun Karanjai could be accepted, the prosecution would have established their case. Raj Mohun Karanjai was, on his own showing, a scoundrel. He had been committed for a train dacoity and sentenced to eight years' rigorous imprisonment. He was apparently awaiting trial at this time on another charge. Further, from his evidence it is quite clear that he knew what was being done and that he actively assisted in obtaining these declarations from various persons who made them knowing that they were false and knowing that they were made with intent to defeat this Ordinance and to obtain smaller notes for these high denomination notes. In other words, Raj Mohun Karanjai, P.W 1 was a very active accomplice. He tries to make out that he was not, but even a cursory glance at his evidence would satisfy anyone that he was one of the prime movers in this case. His evidence, therefore, could never be accepted standing by itself. The illustration to sec. 114 of the Indian Evidence Act is to the effect that a Court may presume that an accomplice is not worthy of credence though sec. 133 of the Evidence Act provides that a conviction based on his evidence is not illegal for that reason.

17. However, it has been a rule of these Courts for very many years not to base a conviction upon the evidence of an accomplice and that evidence alone. This Court as well as all other High Courts in India have required corroboration of such evidence.

18. The corroboration of Raj Mohun Karanjai's evidence is very necessary in this case, because as I have said Raj Mohun Karanjai was, on his own showing, as guilty as any other member of the Lall Bank and what he was trying to do in the witness box was to exculpate himself and to throw the blame on the Appellant and his co-accused. His evidence is, therefore, suspect in the extreme and I would not be prepared to act upon it without corroboration. Further, to make matters worse Raj Mohun Karanjai was, as I have said, a bad character and his evidence would have to be approached cautiously even if he was not an accomplice.

19. The other evidence in this case consisted of the evidence of a large number of persons who had signed these declarations. All of them admitted that the high denomination notes to which these declarations referred did not belong to them and that they had never anything to do with them. Most of these persons were employees of the Lall Bank or of the concerns of Mr. Lall to which I have already made reference. There were also a number of persons who were not interested in the Bank or in these concerns, but were indirectly interested in the activities of Mr. Lall and the Lall Bank.

20. Learned Advocate for the Crown had to concede that a number of the witnesses were clearly accomplices, e.g, witnesses like Jatindra Nath Banerjee, P.W 2 and Nagendra Nath Sarkar, P.W 3. He, however, urged that four persons who gave evidence could be regarded as independent and could not be regarded as accomplices. He contended that even assuming that the evidence of an accomplice could not be corroborated by the evidence of another accomplice, nevertheless the evidence of these accomplices was abundantly corroborated by the evidence of these four independent persons. These four persons were Abdul Rezzak, P.W 12, Sk. Nurul Huq, P.W 13, Sk. Jalil, P.W 14 and Sk. Kaloo, P.W 16.

21. All these four persons signed declarations respecting various high denomination notes. All of them admitted that they never owned such notes but what they tried to make out in Court was that they had been deceived or tricked into signing these declarations and that they were wholly unaware that any offence was in contemplation.

22. Abdul Rezzak, P.W 12, was a Fitter in the employ of the Calcutta Marine Engineering Co. in which Mr. Lall was interested. He said that he received a monthly retainer of Rs. 25 and was paid Rs. 3 per day when working. According to him at about the time when he signed a declaration relating to some high denomination notes he and others demanded an increase in their pay. They saw Mr. Lall who agreed and after a few days each was given three papers to sign. He identified the papers and he stated that the papers were actually given to him by the Appel lant Cohen. After three or four days he was given some other papers by Cohen and the latter asked him to sign them saying that the increase in salary was sanctioned. The papers he did sign related to notes of the value of Rs. 3,000 and he admitted that he had no connection whatsoever with these notes.

23. It is significant that in examination-in-chief Rezzak was never asked if he was literate. I think it is clear that he was, because he immediately recognised the documents and the signature when they were put to him. The omission to ask him if he was literate appears to me to be significant and no such question was ever addressed to the other witnesses whose evidence I shall refer to shortly. In cross-examination this witness did, at first, admit that the paper he signed was “for encashment.” He then corrected himself and said that he could not follow the question. On the question being repeated he said that he did not know what he signed and that he signed merely because Lall had asked him to sign. It will be remembered that this man said that he was asked to sign in order to obtain an increase in salary and that he was under the impression that an increase had been granted. However, in cross-examination he said “I used to get Rs. 25 per month before I signed and I continued to get Rs. 25 after that….. I did not complain anywhere regarding my salary.” At the end of the cross-examination he did say “We went on strike for increment of our salary,” although no other witness bears this out.

24. It is impossible to believe that this witness signed these documents believing that he was signing documents relating to an increase in salary which was being granted. I imagine that if he was under the impression that an increase of salary had been granted he would not have accepted the old salary without comment. I think this witness said the truth when he first stated that the paper he signed was “for encashment.” He immediately realised the mistake he had made and tried to say that he had not understood the question. If this man was literate, as I am sure he was, he would know, that he was not signing a document connected with salary. He recognised the document at once and he would have known that it was a declaration about the truth of certain statements and nothing whatsoever to do with the question of salary. In my view, Abdul Rezzak well knew that he was being asked to sign a false declaration in order that these notes could be cashed and, therefore, I am bound to hold that he was an accomplice.

25. The next witness relied upon by learned Advocate for the Crown was Sk. Nurul Huq, who was also a fitter employed by the Calcutta Marine Engineering Co. at the same rate of pay as Abdul Rezzak. He said that they had asked for an increment of salary and that after a few days the Appellant Cohen asked them to sign two papers showing that they were getting Rs. 120 per month and apparently Cohen told them that the Rs. 120 per month was sanctioned. However, he appears to have been paid Rs. 25 as usual and there was no complaint. The documents he signed related to notes of the value of Rs. 3,000 which he admitted were not his. In cross-examination he admitted quite frankly that he did not complain when their salary was not increased which shows quite clearly that the story about signing these documents in order to obtain an increase in salary was untrue. This man recognised the documents when put to him and I am sure that he was also literate and was well aware of what he was signing when he signed them. That being so it appears to me that Sk. Nurul Huq was also an accomplice.

26. The third witness was Sk. Jalil, P.W 14. He also was a fitter and tells much the same story. His documents related to notes to the value of Rs. 3,000 which he admitted he did not own.

27. He in cross-examination makes it clear that when he and others signed these documents they understood that the documents were for increment of salary. But he did not ask from what date they were to get the increase. He says they were told that their increase of pay was granted but he admits that no increase was ever given. He explains that by saying “when we did not get payment we understood that we were deceived.”

28. It seems clear that this man knew what he was signing and could read it. He recognised the documents at once and I am satisfied that he also joined in these illegal activities and, therefore must be regarded as an accomplice.

29. The last of these so-called independent witnesses is Sk. Kaloo, P.W 16. He was a fruit-seller at the Hogg Market earning Rs. 2-8 a day. His master apparently supplied fruit to a ship owned by or controlled by Mr. Lall. He said that he knew the members of the staff and used to go to the offices of the bank. His explanation for signing these papers was that Lall had told him that as he was a poor man it would be convenient for him to open an account in the bank. The Appellant Cohen gave him the papers and he signed them. This appears to be a particularly lame story. Why was it convenient for a poor man earning Rs. 2-8 a day to open an account in the Lall Bank I cannot imagine. He admits that he had no interest in the notes concerning which he signed a declaration.

30. The evidence of Sk. Kaloo is most unconvincing and again it is to be noted that he was never asked if he was illiterate and unable to read. He was a person who apparently knew the members of the staff of the Lall Bank and was called in to assist and I am certain that he readily gave his assistance.

31. For the reasons that I have given I am satisfied that all these four so-called independent witnesses were accomplices. Learned Advocate for the Crown does not urge that the others who signed these declarations were independent. He has to concede that in all probability they were accomplices. The result is that all the persons who made these false declarations and were called as witnesses to support the case for the prosecution were concerned in the crime. They all knew that what they were doing was wrong and they were clearly, in my view, accomplices.

32. The other witnesses called were merely formal witnesses and could give no direct evidence as to these transactions. Learned Advocate for the Appellant has urged that in these circumstances the conviction should not stand. He has urged that quite clearly the evidence of Raj Mohun Karanjai, P.W 1, required corroboration and that that evidence is not corroborated by any other independent testimony. Learned Advocate contended that the evidence of an accomplice cannot corroborate the evidence of another accomplice. Learned Advocate for the Crown pointed out that a somewhat different view had been taken by this Court in the case of Bimal Krishna Biswas v. Emperor(1). Henderson, J., observed:—

“The rule of law is contained in see. 114 of the Evidence Act which lays down that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. To say that an accomplice is to be corroborated in material particulars is not the same thing as to say that he is to be corroborated by a witness who is not an accomplice. No doubt it is a rule of prudence to say that ordinarily evidence which is itself tainted should not be accepted as corroboration of tainted evidence. But, in my judgment, it is opposed to all common-sense to lay down that in a case the circumstances of which show that the rule of prudence does not apply, the Court is precluded from acting on evidence which it believes to be true”.

33. It appears to me that this dictum of Henderson, J., is contrary to the views expressed by their Lordships of the Privy Council in Mahadeo v. The King(2). In that case their Lordships laid down that the evidence of an accessory must be corroborated in some material particular not only bearing upon the facts of the crime, but upon the accused's implication therein. They held further that the evidence of one accomplice is not available as corroboration of another. At page 1170, Sir Sidney Rowlatt who delivered the judgment of the Board observed:

“It is well settled that the evidence of an accessory, which Sukraj; plainly was on his own showing, must be corroborated in some material particular not only bearing upon the facts of the crime but upon the accused's implication in it and further that evidence of one accomplice is not available as corroboration of another. [The King v. Baskerville(3).] This rule as to corroboration, as was pointed out in the case just cited, long a rule of practice, is now virtually a rule of law, and in a case like the present it is a rule of the greatest possible importance, the position being that there are three persons all implicated in a crime and one of them or two of them exculpates himself or themselves by fastening the guilt upon the other.”

34. It seems to me clear from this decision of their Lordships of the Privy Council that in a case of this kind a conviction should not be based upon the evidence of an accomplice and that evidence alone. This is a case such as was contemplated by Sir Sidley Rowlatt, namely, a case where a number of people were implicated and those called as witnesses for the prosecution were obviously trying to throw the whole blame on the accused. It is just the sort of case where this rule of caution which has now become to all practical purposes a rule of law should be applied, and the conviction cannot stand unless the evidence of these accomplices is corroborated in material particulars by the evidence of persons who are not accomplices.

35. It was suggested that the evidence of Raj Mohun Karanjai and the evidence of the other admitted accomplices was corroborated by the fact that the declarations made by the various persons were in some cases partly in the handwriting of the Appellant Cohen. Had that been established by independent evidence it would have afforded valuable corroboration. But it is conceded that the only evidence that these documents are partly in Cohen's handwriting is the evidence of persons who are accomplices.

36. There is no evidence at all corroborating the main witnesses as to this transaction except the evidence of persons who are obviously accomplices. The evidence of Raj Mohun Karanjai is clearly unworthy of credit unless corroborated and by reason of the Privy Council case in Mahadeo v. The King to which have made reference I am bound to hold that the evidence of the other witnesses cannot corroborate Raj Mohun Karanjai's evidence because it is the evidence of accomplices. Tainted evidence cannot corroborate other tainted evidence and there is no untainted evidence in this case corroborating any of these accomplices. That being so, this conviction cannot be sustained and must be set aside.

37. In the result, therefore, I would allow this appeal, set aside the conviction and sentence and acquit the Appellant. If the fine has been paid it must be refunded. The Appellant need not surrender to his bail and his bail bond is discharged.

Das Gupta, J.:— I agree.