NARAYANA PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) This criminal miscellaneous petition has been preferred on behalf of accused 1 and 2 in C. C. 101/71 on the file of the Addl. 1st Class Magistrate, Quilon. They are charged with offences falling under S.409 and 477 A with 34 IPC. They were the President and Secretary respectively of Cooperative Bank No, 1649 at Paravoor. On the basis of a statement filed by the Deputy Registrar of Cooperative Societies, Quilon before the Superintendent of Police, Quilon, Crime 117/68 was registered against these accused. In the F. I. statement, acts of misappropriation of the funds of the society were enumerated. After due investigation the police took up 3 items of defalcations to form the subject matter of the charge and C.C. 29/69 was accordingly initiated on the basis of that charge. Evidence, however, was let in concerning only one of the 3 defalcations covered by the charge. The trial which started on 24-2-1969 ended on 12-3-70 convicting the 1st petitioner and acquitting the 2nd petitioner. But on appeal the learned Sessions Judge acquitted the 2nd petitioner also. On the conclusion of the trial by the learned Magistrate which ended on 12-3-70, crime No. 23/70 was registered the next day by the police in respect of 'another misappropriation and that case is now pending in the Addl. First Class Magistrate Court, Quilon as C.C. 101/71. The case of the petitioners in the present petition, which is one filed under S.561A of the Code of Criminal Procedure is that the subject matter of the present charge had already come to light and the police investigated that charge also on the first occasion and they could have included if they wanted, that charge also in the previous case C. C. 29/69. Having not done that, it is not open to the police to start the present prosecution, the purpose of which is only to harass the accused. The jurisdiction of this court vested under S.561A Cr. P. C. is, therefore, invoked.

(2.) It is well settled that a second trial, in the above circumstances, is not barred by any of the provisions of the Criminal Procedure Code. In (1910 (12) Bom. L. R. 226), the accused was tried for the offence of criminal breach of trust as a public servant in respect of a sum of Rs. 12 and odd and was acquitted of the offence. He was again tried for the offence of criminal breach of trust in respect of a sum of Rs. 19 and odd misappropriated during the same period and was convicted. On appeal, the Sessions Judge acquitted the accused on the ground that his previous acquittal was a bar to the second trial. The Sessions Judge took the view that the first trial must be treated as being for the same offence as that in respect of the second amount, because both the amounts were misappropriated during the same period. According to him, the prosecution having made its election under S.222(2) of the Criminal Procedure Code to prosecute the accused in respect of one out of the two amounts misappropriated by him during the same period, it was estopped by the provisions of S.403 from instituting the second prosecution in respect of a fresh item falling within the same period. This view was reversed in appeal by the High Court (Chandavarkar and Knight, JJ ) on the ground that the normal rule was the one contained in S.233 of the Code that for every distinct offence there shall be a separate charge and every such charge shall be tried separately. One of the exceptions to this rule was contained in S.234 which provides that more than one charge but exceeding three charges can be included in one trial, provided exceeding three charges can be included in one trial, provided the offences charged are of the same kind and the offences in respect of those charges have been committed within a space of twelve months from the first to the last of

(3.) In AIR 1945 Bom. 413, the accused was found to have misappropriated certain sums belonging to government which he repaid subsequently. He was charged with offences under S.409 and 466 of the Indian Penal Code in respect of two items only, as having been misappropriated during a certain period of time. The trial was held before the sessions Judge, who, agreeing with the unanimous verdict of the jury as regards the charge under S.409 and the opinion of assessors as regards the charge under S.466, acquitted the accused. The accused was then tried by another sessions Judge for an offence under S.409 of the Penal Code in respect of an amount which formed part of the gross amount, which was mentioned in the earlier trial but which was not included in the two charges which alone were picked up in that trial. The accused contended that the second trial was barred under S.403 of the Criminal Procedure Code and he was therefore entitled to an acquittal. The sessions Judge acquitted the accused holding that though it was technically correct to try the accused for what was a separate offence it was undesirable that the accused should be so tried for an offence which could have been included in the first trial. A Division Bench of the Bombay High Court held that "even though the plea of autrefois acquit under S.403 was not technically available to the accused, the principle of it was available to him in the interests of justice and that he should not be tried again for the offence under S.409." The principle in furtherance of which the acquittal was made in that case was that even though the second trial was not barred, in the interests of justice it was not desirable to have the second trial. As in the case above cited, in the one on band also, the subject matter of the second charge was known to the police even on the earlier occasion when the first three charges were put forward. But in all these cases the fact to be noticed is that the offences charged must be of the same kind. In the instant case, the second charge is, however, based on a different set of facts not in any way similar to the facts which formed the subject matter of the first charge. The first charge was in respect of the misappropriation by the accused of the collections due to the society from the R. Ds. (retail depots) whereas, the second charge, which is now impugned before me, is in respect of a sum of Rs. 3000/- covered by a cheque issued by the president to the Secretary. The cheque was cashed by the Secretary and the amount was misappropriated. The amount covered by the cheque was part of the funds of the society. It was thus a daring act of misappropriation. The defence open to the accused in respect of misappropriation of the R. D. collections, might not normally be open to them in the second misappropriation which was in respect of amounts which lay in the bank to the credit of the society.