1. The appellant Kishansingh who is the Sar Panch of mouza Pipri, tahsil Warora, District Chanda, has been convicted by the Sessions Judge, Chanda, for offences of Criminal breach of trust under Section 409 of the Indian Penal Code in respect of five Money Orders received by him and also for committing forgery under Section 467 of the Indian Penal Code in respect of three Money Orders out of these five.
2. It is common ground that one Y. N. Kamble who was the Head Master of the primary school at Pipri was working as the Branch Post Master at Pipri in addition to his duties as Head Master. After his transfer sometime in the year 1958, the appellant worked there as the Branch Post Master. No formal order appointing him as Branch Post Master was however issued till 31-8-1959 beforewhich date the appellant had ceased to work as Branch Post Master. By virtue of this order the appellant was appointed to work as Branch Post Master retrospectively from 30-6-1957 to 6-11-1958 on a certain allowance.
3. According to the prosecution, the appellant received several Money Orders during the time he was working as the Branch Post Master and out of them he misappropriated the amounts payable under the Money Orders dated 6-6-1958, 20-8-1958, 12-9-1958, 10-10-1958 and 22-9-1959. The first of these Money Orders was for Rs. 45.7 nP. and was payable to Rama Madho of Pipri (P. W 6), the second, third and fourth Money Orders were for Rs. 82/- each and were payable to Y. N. Gawandu (P. W. 10); and the fifth Money Order was for Rs. 15.18 nP. and was payable to Dewaji Without Parodhe (P. W. 11). The appellant is also said to have forged the signatures of the payees of these Money Orders for facilitating the misappropriation of the amounts payable under these Money Orders.
4. The appellant denied the offences and said that he had been falsely implicated in these cases by the prosecution witnesses who are on inimical terms with him.
5. The learned Judge rejected the defence and convicted the appellant as already stated and passed certain sentences upon him.
6. Mr. S. G. Ghate who appears for the appellant has raised an important question of law in this appeal and that is whether the trial of the appellant is bad because it has been conducted in a mode which is not permitted by law. Mr. Ghate points out that the learned Judge has consolidated the charges regarding misappropriation of the amounts due under the Money Orders into one charge and tried them along with three separate charges of forgery under Section 467 of the Indian Penal Code. Thus he tried him at one trial for four offences though under Section 234 of the Code of Criminal Procedure he could try the appellant for not more than three offences at the same trial. Section 233 of the Code of Criminal Procedure provides that a separate charge shall be framed against a person for every distinct offence which he is alleged to have committed and further provides that every such charge shall be tried separately except in the cases mentioned in Sections 234, 235, 236 and 239. These sections are thus exceptions to Section 233. Section 234 permits the joint trial of offences not exceeding three in number committed within the space of twelve mouths from the first to the last of such offences. Now. Mr. Ghate points out that here the offences exceed this number by one and therefore there has been a violation of an express provision of the Code which has rendered the trial completely void. In support of his contention Mr. Ghate has relied upon two decisions of this Court. The first of these is D. K. Chandra v. The State : AIR1952Bom177 . In that case it was held that the trial of a person in respect of two charges uncle Section 409 of the Indian Penal Code in respect of two separate and distinct transactions and two alternative charges under Section 420 of the Indian Penal Code, was illegal. That was a Full Bench decision and the learned Judges unanimously held that the joinder of four charges did not fall within any of the three exceptions to Section 233 of theCode of Criminal Procedure and therefore was contrary to law. This decision no doubt affords support to the argument of Mr. Ghate; but we have to bear in mind the amendment of Section 537 of the Code of Criminal Procedure by the amending Act, 26 of 1955. Prior to this amendment Section 537 read as follows:
'Subject to the provisions hereinbefore contained no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter, XXVII or on appeal or revision on account:
(a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(c) of the omission to revise any list of jurors or assessors in accordance with Section 324, or
(d) of any misdirection in any charge to a jury unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice.'' Then followed an explanation which reads thus: 'Explanation: In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceeding.'
7. Now, by the amending Act of 1955 the word 'charge' occurring in Clause (a) has been deleted and after Clause (a) the following clause has been inserted as Clause (b):
'of any error, omission or irregularity in the charge, including any misjoinder of charges, or'
The explanation and the other provisions of the section have been left untouched by the amendment.
8. Now, the question is whether by reason of this amendment there has been a change in the law. It seems to us that the Legislature has made it quite plain that a misjoinder of charges is merely an irregularity and not an illegality. Where there is such misjoinder, the conviction of the accused person cannot be set aside unless there has been a failure of justice. Now, the concluding words of Clause (d) apply to all the clauses. So reading Clause (b) along with these words, it would be clear that even where there is a misjoinder of charges, the appellate Court is precluded from reversing or altering the conviction of an accused person unless this has in fact occasioned a failure of justice. No doubt it has been observed by this Court that failure of justice will be presumed to have been occasioned by reason of a breach of an express provision of the statute relating to the mode of trial. Hut it seems to us that the Supreme Court has taken a somewhat different view.
9. Before however we refer to the decision of the Supreme Court, we must notice the other decision of this Court upon which Mr. Ghate relies. That decision is Umer Saheb v. State AIR 1960 Bom 205. In that case a Division Bench of this Court has made certain observations which would apparently afford some support to the argument of Mr. Ghate. This decision also refers to the amendment of Section 537. Adverting to the amendmentJ. C. Shah, J. who delivered the judgment of the Court observed:
'In substance, by the amendment it is provided that a misjoinder of charges is to be regarded merely as an irregularity and not an illegality. To that extent, the cases decided before the amendment may be regarded as superseded. But where a trial has been held on a charge which is vitiated not on account of misjoinder of charges, but on the score of failure to comply with an express direction concerning the manner of holding the trial, the provision of Section 537 will not be attracted thereto.' It may be mentioned that in the case before the learned Judges the charge against the accused person was that he had between 6th March 1949 and 31st March 1951 mis-appropriated several amounts. There were also charges against him for offences under Sections 477-A and 467 of the Indian Penal Code, but the accused was acquitted in respect of those charges. To the extent that the learned Judges held that this provision, that is, Section 222(2), deals with the mode of trial and a contravention of the mode of trial amounts to an illegality we wish to say nothing, but all that we need point out is that that case is distinguishable from the case before us as here there is no question of any breach of the provisions of Section 222(2). Here the breach is only of the provisions of Section 234. The observations of Shah, J. which we have quoted must be interpreted as referring to Section 222(2), but in their widest sense they may perhaps be said to cover a case where the breach is of Section 234. Of course, to that extent those observations will have to be regarded as obiter. But then the learned Judge has referred to the decision of the Privy Council in Subrahmanya Iyer v. King-Emperor ILR 25 Mad 61 (P. C.) in which the Privy Council has held that the trial of a person for more than three offences of the same kind committed within a period of twelve months is in contravention of Section 234 and that the provisions of Section 537 cannot cure the defect in the trial. We may point out that the law has changed since the decision of their Lordships and today the position is that a misjoinder of charges amounts not to an illegality but to a mere irregularity. It is no doubt true that where a person is tried for more than three offences of the same kind committed within the space of one year, the provisions of Section 234 are contravened in the sense that there has been a misjoinder of charges. Where there is a misjoinder of charges, the law provides, subsequent to the amendment of 1955, that the conviction shall not be altered or reversed unless in. fact a failure of justice has been occasioned thereby.
10-18. In W. Slaney v. State of M.P. : 1956CriLJ291 Bose, J., with whom S. R. Das Actg. C. J. (as he then was) agreed, has referred to the aforesaid decision of the Privy Council and also to a later decision in P. Kotayya v. Emperor AIR 1947 PC 67 and has observed:
'Now it is obvious that the question of curing an irregularity can only arise when one or more of the express provisions of the Code is violated. The question in such cases is whether the departure is so violent as to strike at the root of the trial and make it no trial at all or is of a less vital character. It is impossible to lay down any hard and fast rule but taking by and large the question usually narrows down to one of prejudice. In any case, the courts must be guided by the plain provisions or the Code without straining at its language wherever there is an express provision. For a time it was thought that all provisions of the Code about the mode of trial were so vital as to make any departure therefrom an illegality that could not be cured. That was due to the language of the Judicial Committee in 28 Ind App. 257.
Later this was construed to mean that that only applies when there is an express prohibition and there is prejudice. In 28 Ind App. 257, the Privy Council said:
'The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here 'shall not be permitted' that this contravention of the Code comes within the description of error, omission or irregularity.' This was examined and explained in Abdul Rahman v. Emperor as follows:
'The procedure adopted was one which the Code, positively prohibited, and it was possible that 'it might have worked actual injustice to the accused' '.
In our opinion, the key to the problem lies in the words underlined (herein ' '). Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code, will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth.
These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once. Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused. This, in our opinion, has been the trend of the more recent decisions or the Privy Council and indeed of latter-day criminal jurisprudence in England as well as in India. The swing of the pendulum has been away from technicality, and a greater endeavour has been made to regard the substance rather than the shadow and to administer justice fairly and impartially as it should be administered; fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered.'
19. Then their Lordships referred to the decision of the Privy Council in AIR 1947 PC 67 and further observed:
'We prefer this way of stating the law, for the distinction that was once sought to be drawn between an express prohibition and an equally express provision positively stated strikes us as unreal. The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts-to 'substantial' denial of a trial as contemplated, by the Code and understood by the comprehensive expression 'natural justice''.
* * * * * 'It is possible (though we need not so decide in this case) that the recent amendment to Section 537 in the Code of Criminal Procedure (Amendment) Act, XXVI of 1955, where mis joinder of charges has been placed in the curable category will set at rest the controversy that has raged around the true meaning of 28 Ind App 257 (P. C.) In any case, our opinion is that the real object of the Code is to leave these matters to the discretion and vigilance of the Courts.'
20. Their Lordships then examined the various sections, occurring in Chapter XIX including Sections 233 to 239, 225, and 228 and Section 535 and 537, and observed:
'But all these sections arc governed by the overriding rule about prejudice mentioned in one-form or another in Sections 225, 226, 228, 535 and 537. We think it would be monstrous to hold that a conviction cannot be set aside even when gross prejudice is proved in cases covered by Section 237 just because it does not speak of prejudice. We can envisage cases where there would be grave prejudice under that section as clearly as we can see cases where there would be none under the others. The sort of problem that we are now examining can only arise when an express provision of the Code is violated and then the root of the matter is not whether there is violation of an express provision, for the problem postulates that there must be, nor is it whether the provision is expressed in positive or in negative terms, but what are the consequences-of such disregard, Does it result in an illegality that strikes at the root of the trial and cannot be cured or is it an irregularity that is curable? We have used the terms 'illegality' and 'irregularity' because they have acquired a technical significance and are convenient to demarcate a distinction between two classes of case... .but it is to be observed that the Code docs not use the term 'illegality'.
It refers to both classes as 'irregularities'; some vitiate the proceedings (Section 530) and others do not (Section 529). Proceedings that conic under the former head are Void'. Section 535 uses the words 'shall be deemed invalid' which indicate that a total omission to frame a charge would render the conviction invalid but for Section 535 which serves to validate it when that sort of 'irregularity' has not occasioned a 'failure of justice'.
21. It is true that three other Judges who decided that case did not agree with all that has-been said by S. R. Das Actg. C. J. and Bose, J. But Bose, J. Venkatarama Ayyar, J. and Chandrasekhara Aiyar, J. (who had expressed a somewhat different opinion in Slaney's case, : 1956CriLJ291 ) have held in Mathew v. State of Travancore-Cochin : 1956CriLJ444 that an objection to the trial on the ground of misjoinder of charges as contemplated by the explanation to Section 537 should be raised at an early stage of the proceedings. Bose, J. who delivered the judgment of the Court, pointed out that the omission to take the objection on the ground of prejudice in the grounds of appeal was not necessarily fatal, but the fact that the objection was not taken at an earlier stage, if it could and should have been taken, is a material circumstance that would necessarily weigh heavily against the accused particularly when he had been represented by counsel throughout. Their Lordships furtherpointed out that though that was not necessarily fatal ordinarily it would be very difficult to sustain a plea of prejudice unless the Court was told just where the shoe pinches, and that though it was true that in certain exceptional cases prejudice, ora reasonable likelihood of prejudice, may be so patent on the face of the facts that nothing more was needed, that class of case must be exceptional.
22. From these observations it would be clear that except in a few limited cases it is for the accused not only to allege but also to establish prejudice and that it cannot be presumed. In Chandi Prasad v. Stale of U. P. : 1956CriLJ322 their Lordships were dealing with an appeal by a person who was charged under Section 409 of the Indian Penal Code on three counts for having received different sums of money from three different persons as share money in December 1948 and for having misappropriated those monies. A charge under Section 477-A was also framed against that person for falsifying certain minute books. The point raised on his behalf was that the provisions of Section 234 of the Code of Criminal Procedure were contravened and therefore the conviction was illegal. Dealing with this question, their Lordships observed:
'It is next contended that there has been a violation of Section 234 of the Code of Criminal Procedure in that the appellant had been charged with three offences under Section 409 and one under Section 477-A. But the case is governed by Section 235, as the several offences under Sections 409 and 477-A arise out of the same acts and form part of the same transaction. Moreover, the appellant has failed to show any prejudice as required by Section 537. This objection must accordingly be overruled.'
It seems to us that the last sentence in the above quotation clearly shows that according to their Lordships even if there is a violation of Section 234 of the Code of Criminal Procedure, prejudice has to be established by the accused person; otherwise the defect of irregularity of the trial will be cured by Section 537(b).
23. Two of these decisions have not beennoticed by this Court in AIR 1960 Bom 205. Apart from that, that case is distinguishable from the present one as we have already indicated. Upon the view taken by their Lordships and upon the plain meaning of the provisions of Section 537(b) of the Code of Criminal Procedure as they now stand, it is abundantly clear that even where a person is tried for more than three offences of the same kind committed in the course of one year, the trial is not vitiated unless the accused establishes prejudice. The burden of establishing that he has sustained prejudice is upon the accused, and the fact that the accused has not complained at an earlier stage ofany prejudice having been resulted to him will berelevant in considering the question whether he has suffered any prejudice. There is nothing in the case before us from which we could inter that the appellant has suffered any prejudice because of the trial of four offences against him at the same trial. Upon this view we reject the contention of Mr. Ghate.
24. Another contention raised by Mr. Ghate is that the appellant was not at the date of the alleged offences a public servant at all because no order appointing him as a public servant had been made till after the alleged offences had been actually committed. Now, the facts appear to be these. The previous branch Post Master upon his transfer from Pipri had to hand over the charge of his duties to someone. His successor as Head Master was not prepared to take over the duties of the Branch Post Master and therefore an intimation to that effect was given to the postal authorities. The Branch Post Master was then informed by the Inspector of Post Offices in writing that he should hand over the charge to a competent substitute and explain the work to him and see to it that that person executes a bond on the usual form. On 3-7-1957 the appellant executed such a bond. It would thus be clear that the appellant look over charge from his predecessor with the permission of the postal authorities and shortly afterwards executed a bond as required by the postal authorities. The fact however remains that no formal order was passed appointing him as Branch Post Master till long after the commission of the offences. Mr. Ghate therefore relied upon a decision of the Calcutta High Court in Elahi Bux v. The State : AIR1955Cal482 and contends that the appellant could not be regarded as a 'public servant' within the definition of this term contained in Section 21 of the Indian Penal Code. Section 21 which defines 'public servant' contains three explanations. The second explanation is as follows:
'Wherever the words 'public servant' occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation,'
Now, according to the decision relied upon by Mr. Ghate a person who is temporarily carrying on the duties of the branch Post Master purely as a nominee of the latter without any authority being given by Government by a letter of appointment, cannot be regarded as a public servant within the meaning of Section 21. Such a person cannot be said to be in actual possession of the situation of the branch Post Master merely from the fact that at the material time he was performing all the functions of the branch Post Master. It must be noticed however that in the case before the learned Judges there was no material from which an inference could be drawn that the person who was carrying on the duties of the branch Post Master was authorised by appropriate postal authorities to carry on those duties. On the other hand, it would appear that in the case the person was a nominee of the previous branch Post Master and had apparently not even executed a bond in favour of the Government as required by that rule. We have already pointed out that here the appellant's predecessor was permitted by thepostal authorities to hand over charge to another person, that in pursuance of this permission charge was handed over to the appellant and that the appellant executed a bond in favour of the Government. There is therefore no room for inferring that the appellant was merely a nominee of the previous Branch Post Master or that he was carrying on the duties of the Branch Post Master by way of a privatearrangement only. No doubt a formal order was not made by the postal authorities but that would amount at the most to a defect in his appointment and nothing more. In these circumstances, we are of opinion that the decision upon which reliance was placed by Mr. Ghate is distinguishable.
25. Now, coming to the merits, Mr. Ghate's contention is that the prosecution has completely failed to establish that the Money Order dated 6-6-1958 was not paid to Rama. According to the prosecution, Rama did not receive a sum of Rs. 45/- and odd payable on the aforesaid Money Order. The Money Order coupon seized by the police with respect to this Money Order purports to bear the thumb impression of Rama. Rama who was examined as P. W. 8 in the case has denied having received any money thereunder or having put his thumb impression on the aforesaid coupon. During the investigation, the investigating officer obtained Rama's thumb impressions on two occasions and sent both along with the Money Order coupon to the Finger Print Bureau. The opinion of the Bureau has been received but unfortunately it has not been exhibited. The person who has given the opinion was summoned as a witness but he did not appear during the trial and had therefore to be given up. Mr. Ghate says that in the absence of any corroboration to the evidence of Rama, we would not be justified in coming to the conclusion that the thumb impression on the Money Order coupon is not that of Rama. In our opinion, the evidence of Rama is quite clear on the point. He has not even been cross-examined on the question as to whether the Shumbo impression was his or not. In the circumstances, we do not see any reason to discard his evidence.
26. According to Mr. Ghate, there is no adequate proof of the forgery of the signatures of Yadeo and Dewaji (P. Ws. 10 and 11) respectively on the remaining Money Order coupons. Both Yadeo and Dewaji have denied that the signatures appearing on the coupons are theirs. Their evidencereceives support from the opinion of the handwriting expert and also from the evidence of Mr. M. B. Dixit, the handwriting expert. We see no reason for not accepting their evidence though Mr. Ghatehas contended that these two witnesses as well as Rama are on bad terms with the appellant and therefore fabricated a false case against him. They have not been cross-examined with respect to this matter. In the circumstances, we cannot discard their evidence. That being so, we uphold the convictions and the sentences passed on the appellant and dismiss the appeal. The appellant is on bail and he shall surrender to his bail within seven days.
27. Appeal dismissed.