EMPEROR Vs. ANANT NARAYAN KULKARNI

JUDGEMENT

(1.) THIS is a reference from the Additional Sessions Judge, Belgaum, with regard to a sessions case in his own Court to which the accused has been committed for an offence under Section 409 of the Indian Penal Code, 1860, and he has recommended that the proceedings of the case be quashed and the accused acquitted. The material facts are these. The accused was an officiating Kulkarni in the village Kongnoli in Chikodi taluka in 1941. The Mamlatdar of Chikodi taluka arrived at the said village on June 17, 1941. Before his arrival one of his clerks had reached the village and had asked the Kulkarni, the accused, to bring his account books for inspection. The Kulkarni left but did not return. The Police Patil was then sent to find him but he also could not find the accused. The Patil then brought the account books from the Chavdi and the clerk, on inspecting them,, found that a large balance of land revenue which had been recovered had not been accounted for in the accounts. The Mamlatdar, on arriving at the village, again inspected the accounts. The next day the accused appeared before the Mamlatdar and made certain statements. The Mamlatdar found that a total amount of Rs. 655-0-6 appeared to have been misappropriated. The accused produced an amount of Rs. 642 and the balance of Rs. 13-0-6 was recovered from him by means of a warrant issued under the Land Revenue Code. On these facts two complaints were filed against the accused in the Court of the Resident Magistrate, First Class, Hukeri. In one complaint it was alleged that the accused had committed a breach of trust in respect of two sums, one of Rs. 10 and the other of Rs. 40, between March 19 and June 19, 1941, and it was further alleged in that complaint that the accused had also forged two counterfoil receipts in the village form No. 9. The other complaint, which forms the basis of the present case, was with respect to criminal breach of trust in respect of the sum of Rs. 572-15-8 committed between April 25 and June 19, 1941. The learned Resident Magistrate heard the evidence in both the cases at the same time and committed the accused to the Sessions Court in both. The accused was first tried in respect of the offence with regard to Rs. 10 and Rs. 40 in Sessions Case No. 17 of 1943. The charge in that case was that during the period from March 19, 1941, to June 19, 1941, the accused had misappropriated the two sums, Rs. 10 and Rs. 40, and forged two receipts with respect to those amounts. The offence under Section 409 was tried with a jury and that under Section 466 with the aid of, assessors. The jurors returned a unanimous verdict of not guilty and the assessors also gave a similar opinion in respect of the offence under Section 466. In the result the accused was acquitted on both the counts.

(2.) IN the present case the trial was before another Sessions Judge. The accused was asked under Section 271 whether he was guilty of the offence charged, or claimed to be tried. He claimed to be tried and at the same time made an application contending that the present proceedings were barred under Section 403 and that he was, therefore, entitled to an acquittal. The learned Sessions Judge has come to the conclusion that the wording of Section 403 does not in terms apply to the facts of this case as the accused is now standing his trial for an offence which is different from the offence for which he was tried in Sessions Case No. 17 of 1943, but that though it would be technically correct for him to proceed with the trial, it would be extremely undesirable that the accused, who could have been tried for all the offences committed by him, should have to undergo a second trial. For this proposition he has relied on a number of authorities. He has also held that it is open to him in a case of this nature to make a reference under Section 438 of the Criminal Procedure Code for the orders of the High; Court, with a recommendation that the proceedings may be quashed and the accused acquitted.

(3.) WE, therefore, accept the reference and quash the committal order as well as the proceedings in the Court of the Additional Sessions Judge and direct that the accused be acquitted and discharged.