STATE Vs. SHRINATH

JUDGEMENT

(1.) THESE are six criminal appeals Nos. 68 to 73 of 1961, both inclusive. All these appeals arise from the judgment of the Additional Sessions Judge No. 1, Jodhpur, dated the 7th of May, 1960. The accused Shrinath was committed to Sessions by the First Class Magistrate No. 3. Jodhpur, for trial under Sections 409, 467, 471 and 477a, Indian Penal Code. He was in the employment of the Municipal Board, jodhpur, and in that capacity he was alleged to have committed criminal breach of trust in respect of certain sums of money from the 19th of June, 1954 to the 22nd of July, 1955. In all, he misappropriated Rs. 9,445/6/9. The accused drew up treasury challans from time to time and made deposit entries in the books of account when in fact" he pocketed the amounts in whole or in part. When the accounts were audited, one such item of embezzlement came to light and, on the report of the Administrator of the Municipality, a case under Section 409, Indian Penal Code was registered against him. It was revealed during the investigation that he had embezzled municipal funds from time to time to the extent of Rs. 9,445/6/9. After commitment to the Court of Session, an objection was raised on behalf of the accused that there was misjoinder of charges relating to mis appropriation and falsification of accounts. The Additional Sessions Judge upheld the objection of the accused and he, therefore, split up the trial into 12 separate cases. He tried the accused for an offence under Section 409, Indian Penal Code and convicted him thereunder. On appeal, the conviction was upheld by this Court on the 15th of november, 1959. The learned trial Judge dropped three cases of offences under sections 467 and 471, Indian Penal Code and no appeal was preferred from that order. When the trials of the other 8 cases were taken up for offences under section 477a, Indian Penal Code, an objection was raised that they were barred by Section 403 of the Criminal Procedure Code. The learned Additional Sessions judge, placing reliance on the decision in Emperor v. Jhabbar Mull, AIR 1923 Cal 179. allowed the objection. The State has, therefore, filed these six appeals from the orders of the Additional Sessions Judge, Jodhpur, by which the proceedings in the 8 cases were dropped.

(2.) THE question involved in these appeals is whether the trials of the accused for offences under Section 477a, Indian Penal Code are barred under Section 403, criminal Procedure Code for the transaction relating to offences under Section 409, Indian Penal Code with which he was charged and convicted included the facts about the alleged falsification of accounts. As already stated, the learned additional Sessions Judge has relied on the decision of the Calcutta High Court in air 1923 Cal 179 in reaching the above mentioned conclusion. In that case, the accused was acquitted of an offence under Section 408, Indian Penal Code and he was then prosecuted for an offence under Section 477a, Indian Penal Code in respect of the false entries made by him in the accounts for the amounts alleged to have been embezzled by him. It was observed by Sanderson, C. J. as follows:

(3.) SECTION 403, Criminal Procedure Code is as follows: