RAMA WARRIER Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was the first accused in C. C. 114 of 1960 on the file of the Sub Divisional Magistrate, Malappuram. He was tried along with another for an offence punishable under S.409, I.P.C. The case against him was that in his capacity as the Secretary of the Kottakkal Cooperative Urban Bank he was entrusted with seven cheques on different dates amounting in all to Rs. 90,000/-, that after encashing and receiving the amount he failed to credit the same in the account books of the Bank except a sum of Rs. 10,000/- and that he misappropriated the balance amount of Rs. 80,000/-. Accused denied entrustment and misappropriation. The learned Magistrate on a consideration of the evidence found that there was entrustment, that the accused failed to credit the amount and committed criminal breach of trust in respect of the same. The second accused, the accountant, who was charged for abetment was acquitted on the ground that there was no proof of abetment. On appeal the learned Additional Sessions Judge of Kozhikode on a reappraisal of the evidence, confirmed the conviction and the sentence. The petitioner has, therefore come up in revision.

(2.) Before coming to the merits of the case, I will first deal with an objection taken by the learned counsel for the accused regarding the trial of the case. It is contended that there has been a violation of the provisions of S.353, 357 and 364 of the Criminal Procedure Code. S.353 enacts that evidence should be taken in the presence of the accused, or if personal appearance is exempted in the presence of his pleader. S.356 says that the evidence of each witness shall be taken down in writing either by the Magistrate or Sessions Judge with his own hand or from his dictation in open court. S.357 says that the Magistrate or Judge himself should take down the deposition unless he records reasons for his inability to do so; and S.364 deals with the examination of the accused. What is contended is that the witnesses were examined only once and their deposition recorded in one case was conveniently written up in the other cases by the clerk and signatures of the witnesses were obtained. The procedure of recording evidence in one case and using copies of the same with necessary modifications in the other cases as the deposition of the witnesses in the case is certainly not warranted by the provisions of the Code of Criminal Procedure, even though that procedure would have been assented to by the advocate who had appeared for the accused and the Assistant Public Prosecutor who had conducted the case oh behalf of the State. Every separate trial must proceed separately with the result that every proceeding including the recording of evidence in each trial should be separate. The question now is whether this wrong procedure adopted by the Trial Court has vitiated the entire trial irrespective of whether prejudice has been caused to the accused or hot. A similar question came up for consideration in the Supreme Court in the case in Banwari v. State of U.P. ( AIR 1962 SC 1198 ), and their Lordships stated that such a defect does not vitiate the entire trial in view of the provisions of S.537 of the Code.

(3.) Reference may also be made to the decision in Dulal Chandra Bhar v. State of West Bengal 1963 (1) CriLJ 521 ). There were three cases tried by the Presidency Magistrate. Deposition was taken only in one case and in the other cases there were copies of the deposition but without the signature of the witness. It was contended that the trial was vitiated. Relying on the case in Abdul Rahman v. Emperor ( AIR 1927 PC 44 ), it was held that non compliance with the provisions contained in S.356 and 360 would not affect the legality of the trial & the defect, if any, cannot cause any actual or possible failure of justice and the irregularity is curable under S.535 and 537, Cr. P. C. It may also be noted that in this case no objection was taken before the Magistrate with regard to the procedure adopted by the Magistrate and, in fact, the defence advocate would have welcomed the said procedure and it must have been done with his full concurrence. This contention, therefore, fails.