P L D 1963 Dacca 34 (PLP)

2. The prosecution alleged that the appellant Abdul Awal Khan as President of the Sholla Union Board No. 5 within the Nawabganj police station in the district of Dacca committed a misappropriation of the Union Board fund to the extent of Rs. 967 and also committed offences under section 477‑A of the Pakistan Penal Code in connection with the offences of misappropriation committed by him.

3. By a resolution of the Board dated 22nd Agrahayan, 1362 B. S. it was decided to hold an enquiry against the appellant for creating some false vouchers. A copy of the said resolu tion was sent to the Bureau of Anti‑Corruption and an Assistant Inspector of the Anti‑Corruption Bureau Dacca held an enquiry into the affairs of the Sholla Union Board on the basis of the petition which was addressed to the Superintendent, District Anti‑Corruption Bureau, Dacca which was endorsed by the Superintendent of Police, Dacca for a preliminary enquiry. The police having completed investigation submitted a charge sheet against the accused under sections 409 and 477‑A of the Pakistan Penal Code. The prosecution allegations against the appellant were as many as 6 in number. It was alleged that appellant misappropriated a sum of Rs. 332 by showing in the cash‑book of the Sholla Union Board, a bogus purchase of a tube‑well parts. This purchase was covered by voucher No.

6. According to the prosecution this voucher No. 6 was false and no purchase was made by accused while he was the President.

4. Next the prosecution alleged that the appellant had misappropriated another sum of Rs. 435 of the said Union Board by showing bogus payment of this amount in connection with the sinking of a tube‑well. The next allegation of the prosecution was that the appellant had accepted a donation of Rs. 203 from the inhabitants of a village within the said Union Board through one Mohabbat Ali P. W. 4 for sinking a tube‑well in the locality to which Mohabbat Ali belonged and the appellant having received the said sum of Rs. 200 did not deposit the same in the funds of the Union Board not he credited the said sum in the cash account book of the said Union Board. For each of the misappropriation committed by the appellant, he is also charged for falsification of the accounts under section 477‑A of the Code.

5. Charges of misappropriation in respect of the sums of Rs. 435 and Rs. 332 failed as also the charges of falsification in respect of the said two misappropriations and the appellant was acquitted by the learned Special Judge on those accounts.

6. In regard to the receipt of the donation of Rs. 200 and non‑deposit of the said amount in the funds of the Union Board the evidence of P. Ws. 4 and 5 and the receipt Exh. 9 granted by the appellant in token of the receipt of the said donation from the said Mohabbat Ali was accepted by the learned Special Judge and the appellant was found guilty both for misappropriation of the said sum of Rs. 200 and falsification of the accounts of the Union Board in respect of the said sum and he was accordingly convicted under sections 409 and 477‑A of the Penal Code. Sentences passed under the two sections by the learned Special Judge were rigorous imprisonment for one year and a fine of Rs. 500 in default rigorous imprisonment for six months more under section 409 of the Code and sentence of rigorous imprisonment for one year under section 477‑A of the Code. The sentences were ordered to run concurrently and out of the fine if realized Rs. 200 was ordered to be paid to the Sholia Union Board,

7. The appellant was represented before me by Mr. Bosu who argued two points in support of his client's case, first of which on merits and to the effect that the offence under section 409 of the Code has not been brought home against the appellant in respect of Rs. 200 alleged to have been received by him from Mohabbat Ali as donation. But Mr. Basu did not put forward any argument in regard to the conviction and sentence under section 477‑A of the Code except that in the facts and circumstances of the, case the learned Special Judge should not have inflicted a separate sentence under section 477‑A of the Code once he had imposed a substantive sentence of imprisonment under section 409 of the Code. In view of the fact that Mr. Basu's argument on the next point which I shall presently state, having succeeded and the result thereof is that this appeal has to go back on remand for retrial, I do not discuss the merits of the case or the futility of Mr. Basu's argument in regard to the conviction under section 409 of the Code.

8. The next point that Mr. Basu argued is that the trial of the appellant is vitiated for non‑observance of the mandatory provisions of section 234 of the Code of Criminal Procedure by the learned Special Judge. He points out that in fact his client has been tried for six distinct offences, no three of which can be connected together, or it cannot be said that any of the three of such offences has been committed in course of the same transaction. The charge for misappropriation of Rs. 332 and the falsification of accounts for that purpose may be said to have been committed in course of the same transaction but the misappropriation and the falsification committed in respect of this sum of Rs. 332 cannot be said to have been committed in the course of the same transaction, so far as the misappro priation and falsification in respect of the sum of Rs. 435 is concerned. Similarly the misappropriation of Rs. 200 and falsi fication of the accounts in respect therefor cannot be said to have been committed in the course of the same transaction with other two or any one of the misappropriations mentioned above. According to Mr. Basu the three misappropriations alleged to have been committed by his client were committed at different times and for different works of the Union Board. The payment of Rs. 437 for sinking of a tube‑well and falsifica tion of the account in respect of the said sum has no connection whatever with the purchase of the tube‑well parts for which the allegation is that the appellant has misappropriated Rs. 332 and has falsified accounts to that end. Similarly the acceptance of the donation of Rs. 200 in his capacity as the President of A the Union Board and not entering the said donation in the cash account book of the Union Board and mis-appropriation of the said sum has no connection whatever either with the misappropriation of Rs. 332 or with the misappropriation of Rs.

407. There is substance in this contention of Mr. Basu and Mr. Talukdar appearing for the State also conceded that the trial is hit by the provisions of section 234 of the Code of Criminal Procedure. Mr. Basu in support of his second conten tion has cited two decisions of the Calcutta Hish Court the first of which is in the case of Nagendra Nath Sen Gupta v. The King‑ A Emperor (36 C W N 542), and the second is in the case of Jogendra Chundro v. The Postal Department of the Government of India (46 C W N 28). The facts S, of the above two cases cited by Mr. Basu apply in all force to the ‑facts of the present case.

9. In the result, therefore, this appeal must succeed. The conviction and sentence of the appellant are set aside. But in view of the evidence on record I do not think that the appellant is entitled to an acquittal at this stage. I, therefore direct that the appellant be tried afresh on the charge of misappro priation of Rs. 200 and falsification of the Union Board's account in connection therewith by the learned Special Judge, Dacca. The case was started sometime in 1956 and we are now half way through the year 1961. In that view of the matter the trial should be held as expeditiously as possible. The appellant will continue to be on the same bail until the date of the trial is fixed, upon which he will renew his prayer of the bail before the learned Special Judge. S. B./A. H. Retrial ordered.