P L D 1952 Dacca 81 (PLP)

IBRAHIM, J.

‑I agree. It is not necessary for me to enter into detailed discussion of facts as my learned brother has already sufficiently discussed them in the judgment which he has just now pronounced. The appellant was tried in the Court of Sessions on two charges, one under section 409 of the Penal Code and the other under section 477‑A of the Penal Code. The jury unanimously found him guilty under both the charges and the learned judge accepting that verdict has convicted the appellant under both the sections and sentenced him to rigorous imprisonment for 7 years under section 409 of the Penal Code and to rigorous imprisonment for 4 years under section 477‑A of the Penal Code. He has ordered that the sentences shall run concurrently. Mr. Dinesh Chandra Roy who has appeared on behalf of the appellant has assailed the conviction on the ground of misjoinder of charges. In support of his contention, he has relied on the case of Raman Behari Das v. Emperor (supra) Emperor v. Mannant K. Mehta (supra) and certain other cases in which it has been held that joinder of several charges of embezzlement and of corresponding charges of falsification of accounts together in the same trials is illegal. This contention on the facts of this case is full of substance and must be conceded. Section 233 of the Cr. P. C. provides 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, except in the cases mentioned in sections 234, 235, 236 and

239. It may be said here that sections 236 and 239 do not call for consideration in this case. It is obvious that according to section 233 the charge in respect of every distinct offence shall be tried separately unless the exceptions mentioned in the section apply. It is not contended by Mr. Salahuddin who has appeared for the Crown that the exception provided in section 234 can apply to this case Section 234 permits trial of 3 offences of the same kind at one trial, if these are committed within the space of 12 months from the first to the last. An offence under section 409 of the Penal Code is obviously nor an offence of the same kind as an offence under section 477‑H of the Penal Code. What are offences of the same kind 15 defined in section 234 itself. In subsection (2) of this section B it is stated : "Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special or local law." Section 234 does not, therefore, apply to this case. The question then arises whether the trial can be supported under section 235 of the Cr. P. C. Only sub‑clause (1) of section 235 is relevant to this discussion. This sub‑clause provides: "If; in one series of acts so connected together as to form the same transaction, more offences than one are commit ted by the same person, he may be charged with, and tried at one trial for every offence." The essential ground fore applicability of this section is that the offences ‑which are. sough to be tried have been committed in course of the same transaction. A charge of defalcation can no doubt be tried under this section with a charge of falsification of the corres ponding accounts to cover up the defalcation, because, in such a case the defalcation and the falsification are parts of the same transaction. But an act of misappropriation and an act of falsification in respect of a different act; of misappropriation cannot be tried in the same trial. It this case there are two charges, one under section 409 and the other under section 477‑A. Now the charge under section 409 is not a charge in respect of a single act of defalcation. The charge is in respect of 13 acts of defalcation lumped together in a single charge under the provision of section 222, subsection (2) of the Cr. P. C. It is stated by the prosecution that the accused who was the agent of the Narayanganj branch of the Sylhet Industrial Bank, Ltd, issued 13 drafts on various dates between the 12th October, 1946, and the 25th November, 1946, covering Rs. 1,11,000 for value received from the pur chasers of these drafts. It is the prosecution case that the appellant instead of crediting this amount in the accounts of this bank misappropriated it. The charge against the accused is for the defalcation of this Rs. 1, 11,000 covered by the aforesaid 13 drafts. Section 222, subsection (2) says that "When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items 9r exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234." The last words of the above quotation are important. A charge framed under section 222, subsection (2) is to be deemed to be a charge of one offence for the purpose of section 234 only. It has no bearing as regards section 235 of the Cr. P, C. The 13 items of misappropriations have to be taken as 13 distinct offences so far as section 235 is concerned. They cannot be regarded as one offence if the trial is to be defended on the strength of section

235. It is clear to my mind that as these 13 items of alleged defalcation were distinct offences committed on different dates in different circumstances they cannot be taken as part of same transaction. Now as to the charge under section 477A: This charge relates to 13 omissions to enter the aforesaid 13 items of money in the accounts on various dates. These 13 items cannot be lumped together in one charge. Section 233 as already stated provides that for every distinct offence of which a person is accused there shall be a separate charge. The only exception to the rule is the one provided in sec tion 222, clause (2), but that exception does no obviously apply to a charge of falsification of account because it is distinctly stated in that section that it applies only in case of breach of trust or dishonest misappropriation of money. It was not legal to lump all these 13 items into one charge of falsification as has been done in this case. All these items must be regarded as 13 distinct offences of falsification. Obviously an act of misappropriation and an act of falsification in respect of a different act of misappropriation are not parts of the same transaction. The joinder of the charges has been clearly illegal. Such an illegality vitiates the trial and this Mr. Salahuddin also does not dispute. A. H. Retrial ordered.