MAHADEO PRASAD Vs. EMPEROR

JUDGEMENT

(1.) The applicant, Mahadeo Prasad, was convicted under Section 408 or in the alterative Section 408/109, I.P.C., by a Magistrate of the First Class and sentenced to nine months rigorous imprisonment. The applicant appealed to the Sessions Judge, who set aside the conviction and sentence under Section 408 or Section 408/109 and directed that the applicant be committed to the Sessions to stand his trial for an offence under Section 477-A, I.P.C. The prosecution alleged against the applicant that he conspired with one Sita Ram to cheat the Benares State in which they were both employed. According to the prosecution evidence, money was, collected by the, applicant and by Sita Ram from tenants of the estate and a portion thereof was misappropriated by them. It appears that receipts for the full amount collected from the tenants were granted but that the amounts in the counterfoils of the receipts were altered and that the books of the State were falsified with a view to showing that lesser sums had been collected than had been in fact received from the tenants. In this way, the prosecution alleged, a sum of Rs. 80 was embezzled by the applicant and by Sita Ram. Sita Ram is absconding. The applicant was arrested after he had absconded for about a year.

(2.) The learned Magistrate who tried the applicant was satisfied that the applicant had acted dishonestly throughout, and in concert with Sita Ram had embezzled funds which belonged to the Benares State. As already noted he convicted the applicant and sentenced him to nine months rigorous imprisonment. The learned Sessions Judge in the appellate Court held however that the evidence did not establish that the applicant had committed an offence under Section 408 or Section 408/109, I.P.C. He accordingly set aside the conviction and sentence. He directed however at the same time that a charge under Section 477-A be framed against the applicant and that the applicant be committed to the Sessions. It is not disputed that the books of the Benares State were falsified and the evidence is such that there is a prima facie case that the falsification was effected by the applicant. Learned Counsel for the applicant however has contended that in view of the provisions of Section 403, Sub-sections (1) and (4) it was not open to the learned Sessions Judge to order that the applicant be tried on another charge framed on the same facts. Section 403(1), Criminal P.C., is as follows: A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.

(3.) Sub-section (4) is in the following terms: A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.