P L D 1963 Dacca 661 (PLP)

7. Mr. K. M. Sobhan, learned counsel appearing for the State, admits that although the ingredients of the two offences are different, they are based in this case absolutely on the same facts. He also fairly and frankly concedes that there can be no conviction in this case unless it is found that the same signatures were put with the criminal intent as alleged by the prosecution,

8. In the earlier trial, the finding was to the effect that the same signatures have been done in good faith. I really do not see how the present case can end in conviction, inasmuch as, there can be no conviction for falsification of accounts, unless it is possible to reach conclusion that these very same signatures were done with the criminal intent as specified in the section. In the peculiar circumstances of this case, it seems to me, that) the facts alleged to constitute the present offence are those alleged in the former trial. In that view of the matter, I am of opinion that continuance of the proceedings will put the petitioner into unnecessary harassment. Therefore, in the ends of justice the impugned proceedings on this ground alone should be quashed.

9. Sanderson, C. J., discharged the accused in similar circumstances in Emperor v. Jabbar Mull Lakkar (I L R 49 Cal. 924). In that case an accused was tried under section 408 of the Penal Code and it was part of the prosecution case that he made three false entries to conceal the acts of misappropriation. He was acquitted of the charge of misappropriation but was subsequently charged on the same evidence under section 477‑A of the Penal Code. The learned Chief Justice observed as follows :‑ "The accused ought not to be put on his trial in respect of these charges. If he were so tried, in my judgment, it would in effect amount to trying him again for the same offences on those upon which he had already been tried and acquitted by the jury, although the charges now before the Court are framed in a different manner." It seems to me that this observation equally applies to the facts of the present case. Similar view was also taken in the case of Emperor v. Nand Kishore Prosad (A I R 1919 Pat. 384).

10. In the case of Mahadeo Prasad v. Emperor (A I R 1937 All. 117), Thom J., observed as follows :‑ "The acts which the prosecution alleged amount to an offence under section 408/ 109 are precisely those acts which it is now alleged amount to an offence under section 477‑A. It is quite clear that the prosecution in the first instance could not have charged the applicant with an offence under section 408/109 and also under section 477‑A. It might well have charged him with an offence under section 408/109 or in the alternative with an offence under section 477‑A, but certainly it could not have preferred two distinct and separate charges, one under each section, against him. Therefore, the provisions of section 403 (2), Criminal P. C., do not warrant the committal of the applicant upon a fresh charge in the present instance. I am supported in this conclusion by the decision in 49 Cal. 924."

11. In the case before me also precisely the same facts which formed the basis of the charge under section 408/109 of the Penal Code, are being alleged for a trial under section 477‑A of the Penal Code. Facts in Manickchand Agarwala's case reported in 56 C. W. N. 384 also appear to be similar to the instant case. In that case a person was being tried for offering bribe to an officer for the purpose of antedating receipt of a return filed on the 9th March, 1951 as alleged by prosecution although it was 3rd March, 1951. The accused petitioner was previously tried for not filing the return on due date, i.e., on the 3rd March, 1951, but he was found not guilty as the Court was satisfied that the return was, in fact, filed on the 3rd March. The point made was if the return was filed in time as was found in the previous trial there could be no question of giving bribe at all. Permission sought by the accused for adducing evidence of the acquittal in the previous trial having been refused, the question was raised in the High Court in a revisional application Haries and Guha, JJ. relying on the Privy Council case of Sambasivam v. The Public Prosecutor Federation of Malaya, observed as follows :‑ "The very basis of the case is the fact that the return had not been filed. But clearly on the case for the prosecution it is not open to the prosecution to allege that it had not been filed and if they cannot allege that then quite obviously no prosecution for bribery could ever succeed."

12. Similarly in the case before me also the basis for prose cution under section 409/109 was petitioner's signatures against the entries in the cash book and because of the acquittal in that case it cannot any longer be alleged that the same signatures had been made with the criminal intent as required under the law. Mr. Khan has rightly placed his reliance in the aforesaid Privy Council case of Sambasivam v. The Public Prosecutor Federation of Malaya, after having been acquitted of the charge of illegal possession of ammunition, the accused was being tried for illegal apossession of rms, and their Lordships of the Privy Council observed as follows :‑ "The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge on after a lawful trial is not completely stated by saying that the person acquitted can= not be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim Res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammuni tion in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the fire‑arms charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for, at that first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other."

13. As already indicated, I am satisfied it is not now open to the prosecution to allege criminal intent to the self‑same signatures against entries in question. That being the position D continuance of the proceedings will mean unnecessary harassment to the petitioner. I would, however, confine my judgment to the facts of this case as was done by Sanderson C. J. in Jabbar Mull Lakkar's case. For these reasons, the Rule is made absolute, impugned proceedings are quashed and petitioner is discharged from his bail bond. S. B./A. H. Rule made absolute.