S M CHANDRASEKHAR Vs. STATE

JUDGEMENT

(1.) These four petitions are directed against the common judgment of convictions and sentences d[ 3-9-1977 passed by the Sessions Judge, Raichur in Crl.Apps.23, 25, 26 & 24 of 1976. CM Appls. 23, 25, 26 & 24 of 1976 were filed by the petitioner, who is common to all these petitions, against the judgments of convictions and sentences d 5-3-76 passed by the Chief Judicial Magistrate, Raichur in CCs.199, 202, 201 and 200 of 1974. The Sessions Judge to some extent has confirmed the convictions, but modified the sentences to some extent in some of the cases.

(2.) Only the facts relevant for the order in these petitions will be narrated. In the course of this order, the CrlPC, 1898 will be referred to as the 'Old Code'.and the CrlPC, 1973 will be referred to as the 'New Code'. The petitioner was. working as a clerk in the Taluk Agricultural Produce Co-operative Marketing Society Ltd, Sindhnoor. He was in-charge manager during the period between February 1963 and 31-1-1966. According to the prosecution, he was writing the accounts and attending to the day to day business of the Society regarding purchase of stock and sale, encashment of cheques etc. The accounts of the Society were audited for the years 1965-66, 1966-67 and 1967-68 and the Auditor found many irregularities including defalcations and mis-appropriations to the tune of Rs.15,087-95 He prepared his audit report. Ultimately four charge-sheets were filed by the Police against the petitioner. They were registered as CCs.199, 200, 201 and 202 of 1974. The items misappropriated, according to the prosecution case in these four cases, fall within the period commencing from 5-7-1965 and ending on 7-12-65. In CC.199 of 1974, the amount said to have been misappropriated is Rs.289-70, in CC.200 of 1974, the amount said to have been misappropriated is Rs. 2019-37, in CC.201 of 1974, the amount said to have been misappropriated is Rs.2269-88 and in CC.202. of 1974, ,the amount said to have been misappropriated is Rs.10,509. The then First Class Magistrate took cognizance of the offences. It may be mentioned that the charge-sheets were submitted on 17-1-1973 after investigation under Sec.156(3) of the Old Code. After the trial commenced, the then Magistrate clubbed all the cases and directed that a joint trial should be held. Later on that, order was revoked at the instance of the prosecution and he directed that separate trials should be conducted. On 28-9-74, the Asst Public Prosecutor submitted to the Court that the cases were to be committed to the Court of Sessions under Sec.347 of the Old Code. The Counsel on behalf of the petitioner objected to the move made by the prosecution. By that1 date, only PW.1 was present and he had been examined in chief only. The Magistrate passed an order committing the accused to take his trial before the Sessions Judge, Raichur, for the offence under Sec.406 IPC in each one of the cases, as per the provisions in Sec.323 read with Sec.325 of the New Code Thereafter, ihe four Sessions Cases were registered and the then Sessions Judge, on hearing both sides, acted under Sec.228 of the New Code, framed a charge under Sec.406 IPC in each one of the cases and transferred the cases to the Court of the Chief Judicial Magistrate, Raichur for a trial. The Chief Judicial Magistrate tried the petitioner for an offence under Sec.408 IPC instead of Sec.406 IPC in each one of the cases and convicted and sentenced the petitioner.

(3.) The facts mentioned in the preceding paragraphs show that cognizance of the offences in the four cases had been taken by the Magistrate much prior to the coming into force of the New Code. The trial in the cases was pending before the then Magistrate by 1-4-74 when the new Code came into force. Therefore, by virtue, of Sec.484(2) of the New Code, he Magistrate had to try the four cases according to the provisions of the Old Code and he did try the cases accordingly. In this connection, it is to be observed that originally the Magistrate had passed an order of holding a joint trial and later on again bifurcated the cases. I am unable to under stand why the prosecution insisted for the bifurcation of the cases and the Magistrate acted accordingly irrespective of the provisions in Sec.222(2) of the Old Code which is specifically meant to cover such cases. After all, the period during which various items of amounts said to have been misappropriated by the petitioner, does not exceed one year.