1. This Criminal Revision case is by the complainant in C. C. No. 71 of 1954 against the order of the Additional First Class Magistrate Bapatla, declining to frame a charge against the accused under Sections 477-A or 467, I.P.C. together with an offence under Section 408, I.P.C. under which the accused already stands charged. The learned Magistrate was of the view that a charge under Section 477-A, I.P.C. could not be joined with a charge under Section 408, I.P.C. He, therefore, directed the appellant to file a fresh complaint for an offence punishable under Section 477-A I.P.C, as the case may be, if so advised.
2. Before going into the point of law, it is desirable to state a few facts. The accused was a clerk of the complainant and was in charge of his accounts and cash. The complainant alleged that the accused in that capacity misappropriated off and on some amounts totalling a sum of Rs. 32,705-9-8 between 6-2-1953 and 18-1-1954. In order to enable him to do so, he falsified the accounts. In two instances he also purported to execute in favour of the complainant without any notice to him two promissory notes, one dated 22-6-1953 for a sum of Rs. 15,000/- and another dated 23-9-1953 for a sum of Rs. 9,000/-.
The accused was charged with having misappropriated the aggregate amount mentioned above in the charge as finally revised and the details of the misappropriation have also been specified in the charge. The charge as it now stands, refers only to an offence punishable under Section 408, I.P.C. The complainant filed a petition for altering the charge originally framed and also for framing an additional charge under Section 477-A or Section 467, I.P.C.
While amending the charge as originally framed so as to bring it in conformity with the provisions of Section 222(2) Cr. P.C., the learned Magistrate, as above stated, declined to frame an additional charge under Section 477-A or Section 467, I.P.C. on the ground that such charges could not be joined together.
3. Section 222(2), Cr. P.C. runs thus:
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 or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 234.
Provided that the time included between the first and last of such dates shall not exceed one year.
4. Sections 233 - 239 Cr. P.C. relate to joinder of charges. Section 233 lays down 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, 236 and 239. Section 234 enables the joinder of three charges when they relate to offences of the same kind committed within a period of twelve months. Section 235(1) provides:
If, in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
Sub-Section (2) of the same enacts:
If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished the person accused of them may be charged with, and tried at one trial for, each of such offences.
It is not necessary now to refer to Sub-sections 3. and (4) of this section. Section 236 runs thus:
If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once, or he may be charged in the alternative with having committed some one of the said offences.
No reference need now be made to Sections 237 and 238 or even to Section 239 which last section deals with persons who may be charged jointly.
5. It is contended by Mr. Basi Reddy on behalf of the petitioner that there is no legal impediment in the way of an accused being charged with an offence under Section 477-A along with a charge for an offence under Section 408. I.P.C. even when there are series of defalcation followed by a series of falsified accounts provided, of course, the provisions of Section 222 Cr. P.C. are otherwise complied with.
Now, It is to be noticed that Section 222 is an enabling section which, while recognising that several independent acts of misappropriation constitute distinct offences permits the framing of a single charge specifying the gross sum made up of several items. Such a charge is to be deemed to be a charge of one offence only for the purpose of Section 234. But, as pointed out in - 'Kasi Viswa-natham v. Emperor' 30 Mad 328 (A) Section 222, Cr. P.C, does not provide that the acts so charged shall be deemed to be one transaction within the meaning of Section 235. Their Lordships observed in that case that the offences of falsification of accounts are not of the same kind as the offences of criminal breach trust and that Section 235 does not enable the joinder of charges in respect of such offences because the falsification of accounts connected with one act of criminal breach of trust cannot be said to form part of the same transaction with the other criminal breaches of trust. They proceed to say:
Each act of criminal breach of trust may, no doubt, be said to form part of the same transaction with the falsification of accounts made with a view to conceal that act of breach of trust; but it does not form part of the same transaction with the other breaches of trust and falsification which were committed on altogether different occasions. There is no provision of the Code which says that all offences committed within one year in the course of three separate transactions may be tried at one trial.
6. It is no doubt true, as Mr. Basi Reddy points out, that in the case before their Lordships the accused had been charged with three distinct acts of criminal breach of trust and three distinct acts of falsification of accounts without advantage having been taken of Section 222 of combining the three charges of criminal breaches of trust into a charge of one offence, specifying the aggregate sum misappropriated. But I do not think the 'ratio decidendi' in that case turns upon that distinction. My attention has been drawn by Mr. Basi Reddy to a decision of the Orissa High Court reported in -- 'Gurcharam Samal v. The State' : AIR1953Ori258 where a contrary view was taken.
I am bound by the Madras ruling and cannot prefer the Orissa decision to it. I may, however, add that as recently as 1952 a Pull Bench of the Bombay High Court in D. K. Chandra v. The State' : AIR1952Bom177 (C) has taken the same view as that of the Madras High Court. It is clear that there cannot be, in the present case, a single charge for the offence of falsification of accounts in respect of the gross sum alleged to have been misappropriated.
7. I therefore, think that the learned Magistrate was right in declining to frame a charge under Section 477-A or Section 467, I.P.C. Apart from that, Section 235, Cr. P.C. which, as already stated, provides for charging the accused for every offence where in one series of acts forming the same transaction more offences than one are committed by him is only an enabling section and the Magistrate may very well exercise a discretion in favour of not combining the several charges. I cannot hold that that discretion has not been properly exercised in the instant case. I, therefore, dismiss the criminal revision case.