THANGAVELU MUDALI Vs. STATE

JUDGEMENT

(1.) THANGAVELU Mudali, the petitioner before me, was the employee of one Padhmanabhan. It was part of his duties to sell cloth belonging to his employer in various places and collect the money due from the customers. On receipt of a complaint from one of his customers, Padhmanabhan looked into the account maintained by the petitioner and then noticed facts, which led him to conclude that the petitioner had falsified the accounts and appropriated different sums of money, He, therefore, laid a complaint before the police on 20-2-1953. The police investigated the case and laid two charge-sheets, one before the Sub-Divisional Magistrate, Tirupattur, for falsification of accounts and the other before the Sub-Magistrate, Tirupattur, for breach of trust under Section 408, I. P. C. The charge sheet for falsification of accounts was registered by the Magistrate as C. C No. 80 of 1953. The learned Magistrate framed charges against the accused under Section 477-A, I. P. C. but eventually and at the end of a full trial acquitted him. That was on 7-9-1953. The charge-sheet filed before the Sub-Magistrate, was withdrawn by the Sub-Divisional Magistrate to his own file. Padhmanabhan, the employer of the petitioner, was examined in chief as P. W. 1. At that stage the petitioner filed an application under Section 403, Cr. P. C. , in which the point was taken that the trial in respect of offences under Section 409, I. P. C. was barred by reason of the prior acquittal in respect of the charges framed under Section 477-A, I, P. C. The learned Sub-divisional Magistrate accepted the objection and purported to acquit the accused.

(2.) IT may be remarked at once that since no charge had been framed by the Magistrate, his order, even if his view of Section 403, Cr. P. C. were right, should have been one of discharge. The State preferred a revision petition before the District Magistrate at Vellore, He set aside the order passed by the Sub-Divisional Magistrate and directed a further inquiry. The petitioner has come to this Court seeking to canvass the correctness of the order passed by the District Magistrate.

(3.) I am clear in my mind that the order is correct. Section 403, Cr. P. C. prohibits a second prosecution in respect of an offence, which has ended either in a conviction or an acquittal. It also prohibits a second prosecution in respect of facts on which a different charge from the one actually framed against the accused might have been framed under Section 236, or on which the accused might have been convicted under Section 237. But it does not bar a trial in respect of a distinct offence for which a separate charge might have been framed under Section 235 (1), Cr. P. C. The effect of these provisions is made clear from the illustrations appended to the relevant sections. The facts alleged against a person might amount to theft, or receiving stolen property or criminal breach of trust or cheating. If he has been tried and either acquitted or convicted on a charge of theft, then he cannot be subsequently prosecuted for receiving stolen property or breach of trust or cheating. But, if a person commits murder and robbery, the fact that he has been acquitted of the charge of murder does not bar his prosecution for robbery. In like manner, the circumstance that the petitioner in the present case has been acquitted in respect of offences under Section 477-A. I. P. C does not bar his prosecution under Section 409, I. P. C. Mr. Narayanaswami Mudaliar the learned advocate for the accused argued that the evidence in the second case is bound to be substantially the same as in the first case. But that is not the material test. The material test is that laid down by Section 236, Cr. P. C. namely, whether the facts are of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, It is only in such circumstances that Section 236 is attracted. And it goes wihout saying that Section 237 cannot be attracted unless Section 236 actually applies to the case.