EMPEROR Vs. KASHINATH BAGAJI SALI

JUDGEMENT

(1.) This is an appeal from an order of acquittal, passed by the Sessions Judge of Nasik. The accused, a servant of the Sinnar Municipality, was tried before the First Class Magistrate, Yeola Division, for the offence of criminal breach of trust by a public servant, in respect of Rs. 19 odd, and found guilty. In appeal the Sessions Judge has quashed the conviction, on the ground of the acquittal of the accused at a previous trial, where he had been tried for criminal breach of trust in respect of Rs. 12 odd, alleged to have been misappropriated during the same period as that to which the Rs. 19 related.

(2.) The learned Sessions Judge's reasoning is that the trial for criminal breach of trust in respect of Rs. 12 must be treated as having been for the same offence as that in respect of Rs. 19; because both these sums were alleged to have been misappropriated during the same period, that is, from July 1907 to 1908. The learned Judge is of opinion that when the prosecution had made its election under Section 222, Clause 2, and the proviso thereto, of Act V of 1898, by choosing some out of the different amounts misappropriated during the period, they were estopped by the provisions of Section 403 of the Criminal Procedure Code from instituting any further prosecution in respect of any fresh items covering the same period.

(3.) That reasoning of the learned Judge is, in our opinion, founded on a misinterpretation both of the language and the scope and object of the provisions which bear upon the question which we are now considering. The general rule is that contained in Section 233 of the Code, namely, that for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately. To that there are several exceptions. Those exceptions are contained in Secs.234, 235, 236 and 239. Now, the exception material for our purposes here is that embodied in Section 234, which says that, although as a rule every charge must have a separate trial, yet you can have several charges not exceeding three at one trial provided, Ist, the offences charged are of the same kind; and, secondly, the offences in respect of those charges must have occurred within the space of twelve months from the first to the last of such offences. In other words, where there have been defalcations in respect of different items, in the course of twelve months, then the Court can try a man in respect of three offences by selecting different items, combining these items into one lump sum, and making the selection so as to get at three sums, the appropriation of each constituting an offence by itself.