MANGILAL Vs. STATE

JUDGEMENT

(1.) THIS is a revision by the accused Mangilal against the judgment of the learned Sessions Judge, Jodhpur, dated the 6th May, 1952. The accused was tried for certain offences under secs. 406, 417 & 471 of the Indian Penal Code by the First Glass City Magistrate, Jodhpur, and found guilty on all the counts, and sentenced to simple imprisonment for six months and a fine of Rs. 1,000/- and in default to further simple imprisonment for two months under sec. 417 I. P. C. , to simple imprisonment for two years and a fine of Rs. 1,000/- and in default to simple imprisonment for four months under sec. 406 I. P. C, and to simple imprisonment for one year and a fine of Rs. 1,000/- and in default further simple imprisonment for four months under sec. 471 I. P. C. All the sentences of imprisonment were ordered to run concurrently. On appeal, the learned Sessions Judge acquitted the accused of the offence under sec. 471 I. P. C. but maintained his conviction and sentences under secs. 406 and 417 I. P. C.

(2.) THE case for the prosecution as laid in the first information report was that the accused Mangilal worked as Kamdar to the estate of the complainant Rao Raja Pirthisingh, that on 10th November, 1947 certain jewellery weighing about 123-1/2 gold Mohars having been put in a box under lock and key, was given to the accused to raise a loan of Rs. 8000/- by pledging the same, and that the accused gave a sum of Rs. 4,000/- only out of the sum of Rs. 8000/- borrowed on security thereof and gave a document of Rs. 4000/-, which was discovered to be a forgery at or about the time of making the complaint. It was further alleged that the accused was asked to take the money and return the ornaments but he flatly declined to do so, and therefore, it was prayed that action be taken against the accused under secs. 406 and 420 of the Penal Code. It was stated in the report that a list of the ornaments was given at the foot of the complaint but no such list was actually given at the time. This report was signed by one Sayar Chand Mehta who described himself as Vakil of Rao Raja Pirthisingh, and is dated 9th February, 1949 about a year and three months after the ornaments were delivered to the accused Mangilal. It appears that Rao Raja Pirthisingh was a minor of about 14 years of age at the time of the raising of the loan and his natural guardian was her grandmother Mst. Purankanwar, widow of Rao Raja Shivdansingh.

(3.) IT has next been contended before me that the trial of the accused was illegal on account of the breach of the provisions of sec. 234 of the Code of Criminal Procedure. The accused was tried jointly for three offences under secs. 406, 417 and 471 I. P. C. The offence under sec. 417 was alleged to have been committed on 10. 11. 47. Similarly the offence under sec. 471 was alleged to have been committed on 10. 11. 1947 also. As regards the offence under sec. 406 the charge was in respect of acts done from 10th November, 1947 to 9th February, 1949 which is a period of more than 12 months. Now, sec. 234 imposes two restrictions. The first is as to the number of offences to be tried at one trial and this number should be not exceeding three and such offences must be of the same kind. The other restriction provided under sec. 234 is that a single trial can take place in respect of three such offences limited to have taken place within the space of twelve months. If, therefore, the offences with which the accused is charged extend over a period longer than 12 months, then a single trial would be illegal as contravening the provisions of sec. 234 Cr. P. C. In this case it is clear that the charge under sec. 406 was laid in respect of acts done over a period of fifteen months and, therefore, the trial was held in contravention of the provisions of the section in question. The next question is whether the aforesaid illegality is curable under sec. 537 Cr. P. C. In Kalu Mian vs. Emperor (2) (A. I. R. 1931 Cal. 357.) it was held that: " Where an accused's charged with criminal breach of trust in respect of certain property, and the period during which the offences are said to have been committed is one of 15 months as stated in the charge, a conviction based on such a charge offends against the provisions of sec. 234 under which the charge must be limited to offences committed within a period of 12 months, the trial was illegal and was not curable under sec. 537 Cr. P. C. " The same view was taken in Emperor vs. Jagat Ram (3) (A. I. R. 1912 Lah. 440.), Ramanlal vs. Emperor (4) (A. I. R. 1927 All. 223.) and Subramania Ayyar vs. King Emperor (5) (I. L. R. XXV Mad, 61 (P. C. ). ). In the last mentioned case which went up to their lordships of the Privy Council, the accused was charged with 41 acts which extended over a period of two years. IT was contended that the trial was in contravention of sec. 234 Cr. P. C. Their lordships held that the trial was illegal and that they were unable to regard the disobedience to an express provision as to mode of trial as a mere irregularity. Consequently, the trial was quashed and the conviction set aside. I am of opinion, therefore, that the single trial of the accused for three offences of different character and which were spread over a period of more than 12 months cannot be maintained. The question that next arises is whether the case should be sent back for re-trial, but I propose to deal with this point later.