MAYADHAR SWAIN Vs. NETRANANDA MAHANTY

JUDGEMENT

(1.) The petitioner, Mayadhar Swain, was employed as a tahsildar by one Chowdhury Radhashyam Das. It is said that between 5 November 1988 and 15 June 1989, he collected certain sums of money from some nine tenants of his employer and misappropriated it. He was prosecuted and tried in respect of three sums of money, which were said to have been paid to him on 2nd April, 20 May and 15 June 1939, respectively, and was acquitted. His employer now seeks to prosecute him in respect of the other six sums of money, for which he has failed to account, or some of them. Mr. Chintamoni Acharya for the petitioner contends that the principle of autrefois acquit applies to the case.

(2.) For this he relies on the decision of the Madras High Court in In re Appadurai Ayyar A.I.R. 1917 Mad. 524. The facts of that case, however, can be very easily distinguished. It appears that a person was there tried for misappropriating certain sums of money which had been paid to him between 14 April and 26 October 1911. He was convicted, and, in spite of this conviction, was again tried on another charge of misappropriating certain sums of money which had been paid to him between 18 March and 26 October 1911. For reasons into which it is not necessary to enter, the prosecution apparently split up the whole of the amount, which had been misappropriated over a certain period which was less than 12 months, into two sums and instituted two separate prosecutions.

(3.) The Madras High Court took the view that the second prosecution was barred by reason of the provisions contained in Section 403, Criminal P.C. It pointed out that, when the prosecution has recourse to Section 222(2), Criminal P.C., it must be assumed that the amount, in respect of which the prisoner is charged, is the whole of the amount misappropriated by him within the period mentioned in the charge. The position in the present case is entirely different.