C. Honniah, J.
1. Ganesh Neelakantha Kulakarni (A. 1) and Chandrasekhar Bharma Katageri (A. 2) were tried in Sessions Cases Nos. 26/8, 27/8, 28/8 and 29/8 all of 1968 by the Sessions Judge, Raichur. In each of these cases, the accused were charged with having committed offences punishable under Sections 408, 467, 477-A read with Section 34, I.P.C.
2. A-1 was working as Assistant Manager and A. 2 was working as Accounts Clerk in the District Co-operative Central Bank Ltd. Raichur, Koppal Branch. The prosecution case was that the accused persons working in such capacity as stated above, in furtherance of their common intention committed criminal breach of trust of certain amounts mentioned in each of these cases and in order to cover up the offence of criminal breach of trust, the accused persons wilfully and with intent to defraud, falsified the accounts in the books of the societies in which they were working.
3. Further, the case of the prosecution was that all embezzlement, all falsification of accounts and forging the valuable security formed part of the same transaction. Therefore, according to the prosecution, the accused persons could be jointly tried by virtue of Section 235, Cr.P.C. alone; in this case, it will not be necessary to invoke the aid of Section 234, Cr.P.C. at all; and it would be immaterial even if the limit of 3 offences imposed by Section 234, Criminal P.C. is exceeded. It was further the case of the prosecution that the limit was to be observed if joinder of charges was made by virtue of Section 234, Cr.P.C.
4. If Section 234, Cr.P.C. is not invoked and if joinder of charges are sought to be justified by the provisions of any other section, be it Section 235 or Section 236 or Section 239, Cr.P.C. the limit, if any imposed by the section sought to be invoked will have to be considered and not the limit prescribed by Section 234, Cr.P.C. It is, therefore, necessary to see whether the offences with which the accused stand charged formed part of one transaction.
5. In a case of conspiracy involving a number of persons, it is possible to hold that the acts of embezzlement, falsification of accounts and forging valuable security, though committed at different times, and at different places by different persons, form part of one transaction. But in the absence of conspiracy, different acts done by a person at different times in respect of money received from different persons may or may not have been done in the course of the same transaction. No hard and fast rule can be laid down as to when certain acts are to be deemed to have been done in the course of the same transaction. Each case has got to be judged on its own circumstances.
6. In the present case, all that we know is that the same accused persons are stated to have committed a number of embezzlements, number of falsification of accounts and forging valuable securities at different times. No other circumstance has been brought to my notice as lending support to the sameness of transaction. The learned Sessions Judge also has not held that all the acts of the accused persons formed part of the same transaction. As a matter of fact, the learned Sessions Judge has not applied his mind to this aspect of the case. The mere fact that the accused persons are the same is not sufficient to justify the conclusion that all acts were done as part of the same transaction especially in view of the fact that the accused persons are said to have dealt with three different societies at different times. Neither the learned Counsel for the accused nor the learned Counsel appearing for the State has brought to my notice any piece of evidence to lend support to the version that the said acts of the accused were done as part of the same transaction.
7. With the materials placed before me. I am unable to record a finding that all the acts with which the accused stand charged in all these cases were committed by them as part of the same transaction. This means that a joint trial of all the offences committed during the course of one year under Sections 409, 467 and 477-A, I.P.C. cannot be justified by the provisions of Section 235 alone. Similarly a joint trial cannot be justified under Section 234, Cr.P.C. alone because that section contemplates inter alia, joinder of the offences of the same kind. Offences under Sections 409, 467 and 477-A, I.P.C. are not offences of the same kind.
8. The next question that arises for consideration is whether recourse can be had to both Sections 234 and 235, Cr.P.C. in order to have a joint trial. In other words, is it open to the prosecution to take help partly of one Section and partly of another section in order to justify the joinder of charges or is it the intention of law that the sections should be mutually exclusive and only one of them can be availed of at one time. In Ram Varma v. State reported in : AIR1956All466 of the Allahabad High Court pointed out in this connection that 'Each of the four Sections 234, 235, 236 and 239 mentioned in Section 233, Criminal P.C. can individually be relied upon as justifying a joinder of charge in respect of any trial but use cannot be made of two or more of these sections together to justify a joinder'. In other words, it is not open to the prosecution to take the help partly of one section and partly of another in order to justify the joinder of charges. Further it has been observed therein that the normal rule as embodied in Section 233, Cr.P.C. has been made subject to the exceptions laid down in Section 234 or 235 or 236 or 239, Cr.P.C. Each section is to be an exception individually. It is not the intention of the Legislature to group together different sections in order to constitute an exception.
9. All embezzlement, falsification of accounts and forging valuable security may form part of the same transaction. If so, they can certainly be jointly tried by virtue of Section 235, Cr.P.C. alone without invoking the aid of Section 234, Cr.P.C. But in the absence of any evidence as to the sameness of transaction it cannot be held that all the acts formed part of the same transaction. The mere fact that the accused are the same persons is not sufficient to justify the conclusion that all acts were done as part of the same transaction. The joint trial cannot, therefore, be justified by Section 235, Cr.P.C. or Section 234, Cr.P.C. alone.
10. The only course, on the facts of this case, open is to split up the trial into a number of trials. In one trial there should be charges for all the amounts in respect of which embezzlement was committed during the course of one year, in the other trial, there should be charges for the three offences of falsification of accounts committed during the course of that year and in the next trial there should be charges for the three offences of having forged the valuable securities.
11. It was urged on behalf of the State that although there has been misjoinder of charges the accused persons having not taken up any objection at the earliest stage and the accused persons having not shown that they have been prejudiced, by the joint trial, this mistake could be cured under Section 537, Cr.P.C. I am not in agreement with this contention for the reason that, the accused in these cases have conflicting defences and number of charges having been framed against them, certainly they have been prejudiced in setting up proper defence in these cases.
12. For the reasons stated above, I set aside the conviction and sentence passed against the accused and remand all these cases to the trial Court for being tried afresh in accordance with law.
13. Mr. P.S. Devadas, learned Counsel appearing for A-1 has filed applications for additional evidence. The learned trial Judge may take them into consideration and admit if necessary the documents that have been filed here on behalf of A-1.
14. In the result, these appeals are allowed and the cases are remitted back to the trial Court for being disposed of in the light of the observations made in this judgment and in accordance with law.
15. The trial Court is directed to dispose of these cases expeditiously.