S.S. Dewan, J.
1. Sardara petitioner and his co-accused Nanhu Ram were brought to trial before the Sub-Divisional Judicial Magistrate, Narwana, on the charge under Section 409, Indian Penal Code and having been found guilty thereunder, Nanhu Ram was convicted under the substantive charge of Section 409, Indian Penal Code, whilst the petitioner was convicted under Sections 409/109, Indian Penal Code and each of them was sentenced, to 3 years' rigorous imprisonment and, a fine of Rs. 2000/-. On appeal, the learned Additional Sessions Judge, Jind, upheld their conviction and sentence. Feeling aggrieved, Sardara petitioner has now come up in revision.
2. The facts giving rise to this revision are very few and simple. There is a Khanpur Co-operative Agricultural Service Society Ltd. Khanpur (for short, the Society). Nanhu Ram as well as Sardara petitioner used to be the Cashier and Secretary, respectively, of the said Society. Brij Lal Garg was the Sub-Inspector of the Society and he used, to look after its work. It is alleged that Nanhu Ram Cashier was an illiterate person while Sardara, Secretary, used to do all the writing work in the registers of the Society. Sh. K.N. Kapur, Assistant Registrar, Co-operative Societies, Jind, checked the accounts of the Society and found that Nanhu Ram and Sardara in connivance with Brij Lal Garg had misappropriated the amount of Rs. 50139/-of the Society after making fictitious entries in the tamasak. Consequently, the first information report was lodged at the instance of Sh. K.N. Kapur and both the accused were arrested. After necessary investigation, they were challaned and sent up to take their trial. Brij Lal Garg was also summoned by the Court but later on he was discharged.
3. The prosecution examined as many as 40 witnesses. Most of them are loanees, who have stated, that they did not borrow the amounts shown against them in the record of the said Society. Several material witnesses are employees of the Bank, who have proved the payment of Rs. 50,000/- to Nanhu Ram Cashier on the attestation of Sardara petitioner. The accused denied the prosecution allegations and, pleaded false complicity in the case but led no evidence in defence.
4. The only argument laboured with little persistence on behalf of the petitioner is that the petitioner having been not found guilty under Section 409, Indian Penal Code, his conviction under Section 403/109, Indian Penal Code, is illegal inasmuch as no charge under Section 109, Indian Penal Code, was framed apainst him. In support of his argument Mr. Bhoop Singh has referred to the decisions in Darbari Choudhoury v. Emperor 1921 22 Cri LJ 311(Pat) and Mahabir Prasad v. Emperor AIR 1927 All 35 : 27 Cri LJ 1118 In the first case, it was held that a person charged with an offence under Section 379, Indian Penal Code, cannot be convicted of abetting that offence where he is not charged with such abetment. In the second case, it was held that if the accused was acquitted on the main charge then his conviction for abetment is illegal.
5. On the other hand, the learned Counsel for the State has drawn my attention to certain cases which have taken a contrary view. They are Begu v. Emperor AIR 1925 PC 130 : 26 Cri LJ 1059 : Syamo Maha Patro v. Emperor AIR 1932 Mad 391 : 33 Cri LJ 418 (FB) and the Provincial Govt., C.P. and Berar v. Saidu AIR 1947 Nag 113 : 47 Cri LJ 968.
6. It. was held by their Lordships of the Judicial Committee in Begu's case (supra), that where the charge under Section 302, Indian Penal Code fails against some of the accused persons, they can be convicted under Section 201, Penal Code, for causing the disappearance of evidence without a separate charge being made against them under Section 201, Indian Penal Code.
7. Their Lordships of the Judicial Committee pointed out that the test is whether the accused had notice of the facts alleged against him which constituted the offence and whether the failure to frame a separate charge had, caused any prejudice. Once the Court is satisfied that the accused had notice of all the necessary ingredients of the offence, and that he has suffered no prejudice on account of the failure to frame a separate charge, there is no bar to his conviction under a particular section although he may not have been formally charged under that section.
8. In a Full Bench decision of the Madras High Court in Syamo Maha Patro's case 33 Cri LJ 418 (supra), it was held that an accused person charged with the main offence of murder can be convicted of abetment of murder even though he is not separately charged, and reliance was placed upon the case Begu v. Emperor (1925) 26 Cri LJ 1059 (PC) (supra).
9. In Saidu's case (1946) 47 Cri LJ 968 (Nag) (supra). Their Lordships have held that there is no bar in law to convict a person of abetment without a distinct charge, if the circumstances bring the case under Section 237, Criminal P. C. (1898) and reliance was placed upon the case Begu v. Emperor (supra), which seems to be the leading case now on the subject.
10. The Patna High Court has also adopted the same view in the case of Hira Sah v. Emperor AIR 1947 Pat 350. Therefore, it cannot be said that the conviction for abetment in tills case is illegal simply because there was no separate charge against the petitioner for that offence. We have to see if he had notice of all the facts which constitute the offence of abetment and whether he had suffered any prejudice for want of a formal charge under Section 109, Indian Penal Code.
11. A review of the authorities on the point shows that it cannot be laid down as an inflexible rule that a conviction for abetment cannot be made in a case where the accused is charged with the main offence only and no separate charge has been framed under Section 109, Indian Penal Code. If the accused had notice of the facts which constituted abetment, although the charge was one for the main offence and if there has been no prejudice to the accused by the omission to frame a separate charge for abetment he can be convicted for abetment even though the charge for the main offence fails.
12. Applying this test I am of the opinion that. Sardara petitioner had notice of all the necessary facts constituting the offence of abetment. It was the prosecution case that Nanhu Ram accused, as Cashier received the amount in question but a perusal of the documents shows that Sardara petitioner put his signatures and identified Nanhu Ram accused at the time the amount in question was withdrawn from the Bank. The petitioner had, notice of all the necessary facts and therefore, there has been no prejudice to him. Under the circumstances, conviction under Section 409/109, Indian Penal Code, is perfectly, legal.
13. Mr Bhoop Singh, appearing for the petitioner has raised the identical arguments, which were earlier urged before the Appellate Court and which have been elaborately repelled. To my mind it would be totally wasteful to traverse the same ground over again. It suffices to mention that I would endorse in toto the reasoning and the finding of the Appellate Court.
14. The learned Counsel for the petitioner has sought reduction in the sentence. Emphasis is laid on the fact that the occurrence took place as far back as 1975 and the petitioner has gone through protracted trial since then. There is marginal scope for reduction in the sentence in view of the fact that the case is quite an old one. Accordingly, I reduce his sentence of imprisonment to 2 years. The sentence of fine with its default clause shall, however, remain.
15. With this modification in the sentence, the revision petition is herein dismissed.