RAMKRISHNA Vs. STATE

JUDGEMENT

(1.) THE facts of this reference by the learned Sessions Judge of Gwalior are that three separate cases have been instituted in the Court of Additional City Magistrate, Gwalior against Ramkrishna in respect of offences under Sections 409 and 477-A, I. P. C. In case No. 239 of 1952 no charge has been framed as yet but the challan mentions that the accused who was a clerk in the Telephone Department received on 235-1949 Rs. 771-10-0 from the Gwalior Investors Ltd. , and Rs. 94-5-0 on 10-2-1950 from G. C. I. T. , Company in payment of trunk telephone bills and that instead of crediting these amounts, he dishonestly misappropriated them. In case No. 435 of 1952 the charge framed against the accused states that during the period from 22-10-1948 to 5-8-1949 he received Rs. 14,061-8-0 from J. C. Mills Ltd. , in payment of their telephone bills; that he dishonestly misappropriated this amount and made false entries of the amount in a Rokad Boob of the department and thus committed offences under Sections 409 and 477-A, I. P. C. In case No. 436 of 1952 the charge is that the accused received from J. C. Mills Ltd. , Rs. 8,485-8-0 during the period from 19-9-1949 to 31-3-1950 in payment of their telephone bills; that he dishonestly misappropriated this amount and made false entries in the Rokad and thus had committed offences under Sections 409 and 477-A I. P. C. During the trial of these cases the applicant presented an application containing that in view of his previous conviction in case No. 329 of 1950, he could not be tried for the offences now alleged against him, It must be noted that in case No. 329 of 1950 the applicant was found guilty by the City Magistrate, Lashkar under Section 409,i. P. C. , on the charge that during the period from 1-4-1949 upto March 1950 he received Rs. 6,450-12-0 from the Gwalior Investors Ltd. , and Rs. 1,175-12-0 from the Firm Phoolchand Deepchand in payment of their trunk call bills and dishonestly misappropriated the amounts. The conviction and the sentence of two years' rigorous imprisonment and a fine of Rs. 500 on the applicant in that case were maintained by this Court in Criminal Revision No. 213 of 1951. The learned City Magistrate rejected the objection of' the applicant founded on Section 403, Criminal Procedure Code. The applicant then filed a revision petition before the Sessions Judge of Gwalior, who has now made this reference recommending that the proceedings in the cases referred to above pending against the accused Ramkrishna should be quash, ed.

(2.) THE argument of Mr. Hariharnivas Dvl-vedi learned Counsel for the accused is that as the accused was tried and convicted in case No. 329 of 1950 for misappropriating certain gross sum during a certain period, he could not be tried in respect of other sums of money alleged to have been misappropriated by him during the same period. Learned Counsel said that the trial of the accused in the pending cases was legally barred: under Section 403 (1), Criminal Procedure Code and that even if the plea of autrefois convict was not technically available to the accused yet in the interest of justice he should not be tried again. In support of his contention, learned Counsel relied on - 'emperor v. Anant Narayan' 1945 Bom 413 (AIR V 32) (A), and the cases referred to therein. Mr. Mungre, learned Government Advocate did not dispute the proposition laid down in 1945 Bom 413 (AIR V 32) (A ). He, however, urged that in case No. 329 of 1950 the accused was prosecuted not for the misappropriation of a gross sum but for misappropriation of an amount with respect to two particular items, and that there was nothing in law to prevent him from being prosecuted again in respect of other specific and distinct acts of misappropriation.

(3.) NOW, in my opinion there can be no doubt that where a person has been prosecuted and convicted or acquitted in respect of specific acts of misappropriation, a second prosecution in respect of other specific and distinct acts of misappropriation is not barred. There is, however, a divergence of judicial opinion on the question whether when a person has been tried and convicted or acquitted for misappropriation of a gross sum during a certain period, he can be put on trial again in respect of other sums of money alleged to have been misappropriated by him during the same period which for some reason had not been included in the gross sum for the misappropriation of which the accused was tried previously. In the case of In re 'appadurai Ayyar 1917 Mad 524 (AIR V 4) (B)', the Madras High Court took the view that when the prosecution has recourse to Section 222 (2), Criminal Procedure Code it must be assumed that the amount in respect of which the prisoner was charged was the whole amount misappropriated by him within the period mentioned in the charge and that, therefore, a second prosecution in respect of other sums 01 money alleged to have been misappropriated during the same period but not included in the previous charge would be barred by reason of the provisions of Section 403 (1), Criminal Procedure Code. The learned Judge of the Madras High Court pointed out that the legislature did not intend that under Section 222, Criminal Procedure Code the prosecutor should be at liberty to prosecute for a gross sum misappropriated during a particular period consisting of certain items more than three in number and obtain a conviction for the same and then choose another gross sum consisting of different items alleged to have been misappropriated during the same period and have a separate trial for the second group of items. What, the legislature apparently intended was that where there is to be a trial for misappropriation of a gross sum, there should be only one trial for such an offence committed within the period covered by defalcation. A contrary view has been taken in -'emperor v. Kashinath' 12 Bom LR 226 (C); - 'nagendra Nath Bose v. Emperor' 1923 Cal 654 (AIR V 10) (D), and in 'brijiwan Das v. Emperor' 1931 All 209 (AIR V 18) (E ). The reasoning adopted in these cases is that Section 222 (2), Criminal Procedure Code dispenses with the particulars which otherwise would be required, but that it does not say that the gross sum is to include every act of misappropriation committed within the dates specified in the charge and that the essence of the offence is the misappropriation and not the time within which it took place. The third view represented by cases 1945 Bom 413 (AIR V 32) (A) and - 'sidhnath v. Emperor' 1929 Cal 457 (AIR V 16) (F), where it has been held that though a second trial is not barred where the prosecution has recourse to Section 222 (2), Criminal Procedure Code and even though the benefit of Section 403, Cr. P. C. is not technically available to the accused, yet when the interests of justice require, the principle of Section 403 should be extended to the accused and he should not be tried again for a sum which was not included in the gross sum for the misappropriation of which the accused was tried previously. As at present advised, I am disposed to agree with the reasoning of Chandawarkar J. in 12 Bom LR 226 (C), which was followed in 1923 Cal 654 (AIR V 10) (D ). The provision in Section 222 (2) Criminal Procedure Code that a charge may be framed for the gross sum of which the different items are composed and that such a charge constitutes only a charge for a single offence within the meaning of Section 234 is only to remove the difficulty often felt in specifying the particular items of misappropriation when there is a running account between the parties and to enable the prosecution to charge the accused at one trial for more than three acts of criminal breach of trust or dishonest misappropriation committed in the course of one year. It is noteworthy that a charge framed in accordance with Section 222 (2) is deemed to be a charge of one offence within the meaning of Section 234. There would, therefore, appear to be no bar to an accused person being legally tried at one trial for three separate charges of criminal misappropriation in respect of three gross sums each made up of separate items. See 'madhusudan Mukerjee v. Emperor' 44 Cal WN 175 (G ). If, therefore, reading Sections 222 and 234 three separate charges of criminal misappropriation in respect of three gross sums each made of separate items can be legally tried together provided the offences in respect of the three gross sums are alleged to have been committed within a period of twelve months, then an accused can equally be tried separately in respect of different gross sums each made up of separate items. That being so, if for some reason it was impossible for the accused to have been tried at the previous trial for a gross amount made up of all the sums misappropriated by, him during a particular period, I am unable to see how the acquittal or conviction in the previous trial can, under Section 403, Criminal Procedure Code, be a bar, to this being tried subsequently for item or items which were not included in the gross sum at the previous trial. As to the question of giving the accused the benefit of the principle of Section 403 where the section does not in terms apply it is entirely one depending on the facts and circumstances of each case. It cannot be laid down as a rigid rule that in every case even though Section 403, Criminal Procedure Code cannot be technically applied, yet the accused must be given the benefit of that principle. If this Court considers that in any particular case the interest of justice requires that a person who has been convicted already should not be prosecuted again, it can exercise its power to Stop the trial on the ground that to prosecute the accused again would be a distinct hardship. In the present case having regard to the facts and circumstances of the acts of misappropriation alleged against the accused, there do not appear to me any consideration of property for quashing the proceedings against the accused Ramkrishna.