1. The appellant Sheo Saran Lal was the clerk of the Kasia Co-operative Bank in the Gorakhpur District in the year 1898. He has been charged and tried at one and the same trial for three offences under Section 408, Indian Penal Code and three offences of forgery under Section 467 of the Indian Penal Code. He has been convicted and sentenced in respect of all the six offences. The case against him is that three different persons seeking to deposit money in the Bank, gave over certain sums to him, (which he embezzled) and for which be gave receipts in his own handwriting, forging thereon the signature of the Manager of the Bank. The primary question arises as to whether the trial of the accused at one trial in respect of six offences is or is not an illegality, under the circumstances of the case. Section 233 of the Criminal Procedure Code lays down a distinct rule that there shall be a separate charge for every distinct offence and that every such, charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239. Section 234 lays down that when a person is accused of more offences than one of the same kind committed within the space of twelve months, from the first to the last of such offences, he may be charged with and tried at one trial for any number of them not exceeding three. Offences of the same kind are defined as offences which are punishable with the same amount of punishment under the same section of the Indian Penal Code, or of any special or local law.
2. Prima facie, the trial of the accused in respect of six offences at one and the same trial, although they may have been committed within the space of 12 months, contravenes the rule laid down in Section 233 even when read with Section 234. It has been argued, however, that Section 235 Clause (1) must be read with Section 234, and that the three offences mentioned in the latter section must be deemed to include all the offences committed in three similar transactions such as contemplated by Section 235 Clause (1); in other words, if an accused person goes through three similar transactions within the period of twelve months, committing in each transaction the same series of offences, he can be tried at one and the same trial, on account of all offences committed in the course of the three transactions, even if they total more than three. I am of opinion that this would be too great an extension of the exception mentioned in Section 234. A point connected with these sections came before the Bombay High Court in the case of Bal Gangadhar Tilak 33 B. 221 : 10 Bom. L.R. 973 : 9 Cr. L.J. 226 : 4 M.L.T. 45 : 2 Ind. Cas. 277. The judgment in that case makes no reference to whatever Clause (1), Section 235. Clause (2) of that section and Sections 237 and 239 were considered, no doubt, but the present point was not before that Court and, in my opinion, Clause (1), Section 235 and Section 234 must be mutually exclusive. Even at the trial of Bal Gangadhar Tilak 33 B. 221 : 10 Bom. L.R. 973 : 9 Cr. L.J. 226 : 4 M.L.T. 45 : 2 Ind. Cas. 277, the prosecution was restricted to three offences, although there were two similar transactions in each of which two similar offences had been committed, and the accused has been committed for trial in respect of all four offences. To hold that Section 234 covered all offences, committed in the course of three similar but separate transactions when the number of offences was more than three, would, in my opinion, be straining the language of the section beyond all bounds, Even in the trial of Bal Gangadhar Tilak 33 B. 221 : 10 Bom. L.R. 973 : 9 Cr. L.J. 226 : 4 M.L.T. 45 : 2 Ind. Cas. 277 the Bombay Court did not go to this extent, and, in my opinion, the trial of the present appellant in respect of six offences, three of embezzlement and three of forgery, is an illegality, as was laid down in the case of Subrahmania Ayyar v. King-Emperor 25 M. 61 (P.C.) : 28 I.A. 257.
3. In this view, I think it would be improper to go into the merits of the case. I, therefore, admit the appeal, set aside the conviction and sentences and order the re-trial of the appellant on the charges preferred against him, in accordance with law. It will be open to the Sessions Judge to divide the trial into two or three trials as he may think fit.