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M. Ramkrishna Menon Vs. Kerala State Represented by Circle Inspector of Police - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1973CriLJ394
AppellantM. Ramkrishna Menon
RespondentKerala State Represented by Circle Inspector of Police
Cases ReferredIn Gajadhar Lal v. Emperor
Excerpt:
- - 3. the main question that arises for consideration in this revision petition is whether the charges under sections 408 and 477a of the penal code framed against the petitioner as well as the trial of the case against him were in accordance with law. 4. the bogus loans specified in the two charges of different dates showing misappropriation as well as falsification of accounts are covered by the following data: when there is a violation of a statutory provision in framing of charges as well as the trial of the ease, it has to be said that the trial is vitiated by illegality as it is proved to be against the provisions of the criminal procedure code......lawfully be tried for one offence of misappropriation in respect of several items joined with a charge of falsification which was carried out as one of the series of acts constituting the transaction by which the misappropriation was effected. the following interpretation was given in the above decision as to the meaning of one transaction:the word transaction means a group of facts so connected together as to involve certain ideas, namely, unity, continuity and connexion. in order to determine whether a group of facts constitutes one transaction it is necessary to ascertain whether they are so connected together as to constitute a whole which can be properly described as a transaction.11. the mysore high court in a decision reported in c.n. krishna murthy v. abdul subhan air 1965 mys.....
Judgment:
ORDER

E.K. Moidu, J.

1. This Criminal Revision Petition is directed against the judgment of the Sessions Judge, Palghat, dated 15.12.1971, affirming the decision of the Additional 1st Class Magistrate, Palghat, dated 27.7.1971. The petitioner as the 1st accused was convicted by the learned Magistrate on charges laid under Sections 408 and 477A of the Penal Code and was sentenced under the former section to rigorous imprisonment for 2 years and to pay a fine of Rs, 2000/-; in default to 4 months' rigorous imprisonment and under the latter section to one year's rigorous imprisonment and also to pay a fine of Rs. 1000/-; in default to rigorous imprisonment for 2 months. The learned Sessions Judge confirmed this conviction and sentences in appeal; but the conviction and sentence passed on the 2nd accused have been set aside. So, the 1st accused alone has come up in revision to this Court.

2. The petitioner in his capacity as the Secretary of the Vadakkanchery Service Co-operative Bank Ltd. was alleged to have misappropriated a sum of Rs. 17,557/- in all within the course of one year beginning from 21.7.1964 to 28.6.1965 by debiting various sums in Exhibits P-7 and P-8 gold loan registers and Ex. P-10 cash book without making payments to the parties who were described either as fictitious persons or without specifying the names of any such person with a view to cause wrongful loss to the aforesaid Bank and to cause wrongful gain to himself and it is further alleged that the petitioner in the course of the same transaction wilfully and with intent to defraud made false entries in these books of accounts kept and maintained at his instance in the Bank. P.W. 1 laid the complaint before the Police on these allegations. P.W. 2 was the clerk who was familiar with the handwriting of the petitioner. P.W. 3 was one of the Directors of the Bank who proved that the petitioner was the custodian of the cash and loan registers of the Bank during the relevant period. P.W. 4 was one Chellan who stated that he never pledged any gold ornaments in the Bank on any one of the dates on which his name appeared in the registers and that he never received any money. P.W. 5 was a similar person who denied having pledged any ornament or received any money from the Bank. P.W. 7 was a junior Auditor of the Co-operative department who on audit of the accounts found that there was never any gold jewels deposited in the Bank or any money paid to the parties, though various amounts had been debited in their names. He stated further that the petitioner misappropriated various amounts which belonged to the Bank. P.Ws. 6 and 8 were the Police Officers who conducted the investigation.

3. The main question that arises for consideration in this revision petition is whether the charges under Sections 408 and 477A of the Penal Code framed against the petitioner as well as the trial of the case against him were in accordance with law. The relevant portions of the charges framed against the petitioner read as follows:

Firstly:-That you Al and A2 being the Secretary and the President respectively of Vadakkancherry Co-operative Service Bank Ltd. No. F. 1219 with intent to cause wrongful loss to the said Bank and to have wrongful gain to you, misappropriated and converted to your own use a sum of Rs. 17,557/- from 21.7.1964 to 28.6.1965 by debiting various, sums as against Gold loans in the day book in bogus names without actually pledging, ornaments and without making payments to parties and without party's vouchers and without making corresponding entries in the gold loan register arid thereby committed an offence punishable under Section 408 of the I.P.C. and within my cognizance.

Secondly:-That you, A1 and A2 at the same time and place and in the course of the same transaction as is referred to in charge No. 1 wilfully and with intent to defraud made false entries in the books of accounts of the said Bank to the effect that amounts are really paid where as a matter of fact, no amounts are paid and thereby committed an offence punishable under Section 477A of the I.P.C. and within my cognizance.

4. The bogus loans specified in the two charges of different dates showing misappropriation as well as falsification of accounts are covered by the following data:

Date. Voucher Gold Loan Name of the Party. Amount

No. No.

1 2 3 4 5

21.7.65 32 No Chellan 112.00

3.12.64 607 ' K.A. Chellan 60.00

11.12.65 899 ' No name 700.00

6.5.65 1110 ' ' 1000.00

1111 ' ' 1000.00

13.5.65 1132 ' ' 750.00

19.5.65 No number ' ' 1000.00

' ' ' ' 800.00

' ' ' ' 500.00

22.5.65 ' ' ' 650.00

' ' ' ' 800.00

' ' ' ' 450.00

24.5.65 ' ' V. Chamukuttan Nair 1000.00

25.5.65 ' ' No name 1000.00

' ' ' ' 1000.00

29.5.65 ' ' ' 440 00

' ' ' ' 550.00

29.5.65 ' No. ' 720.00

' ' ' ' 350.00

' ' ' ' 280.00

08.6.65 ' ' K. Balakrishnan Nair. 650.00

09.6.65 ' ' K.A. Chellan, 250.00

' ' ' M. Narayanan Kutty. 475.00

' ' ' V Vasudevan Nair. 320.00

26.6.65 ' ' N. Kandu. 1000.00

' ' ' V. Narayanan Kutty 1000.00

28.6.65 ' ' V. Oharnukuttan Nair. 700.00

_

Total: 17557.00

5. Sections 233, 234. 235, 236 and 239 of the Cri. Procedure Code deal with joinder of charges. Section 233 reads as follows:

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, 235 236 and 239.

The provision is that for every distinct offence there shall be a separate charge which shall be tried separately. However, this section is subject to the exceptions contained in Sections 234, 235, 236 and 239. The Section 233 is first of all subject to Section 234(1), Cr.P.C. Section 234(1) provides 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, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. The Section 222 provides that the charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. The Sub-section (2) of Section 222 provides that 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. In the proviso to that Section it is 'provided that the time included between the first and last of such dates shall not exceed one year'. So far as charge No. 1 is concerned in the instant case there is no objection that the said charge is not in accordance with the provisions of Section 233 read with Section 222(2), Cr.P.C. Evidently, there was allegation of misappropriation against the petitioner during the period of one year beginning from 21.7.1964 and ending with 28.6.1965 for a total sum of Rs. 17557/-. Those particulars required to be given under Section 222(2) have been complied with in framing charge No. 1 against the petitioner, especially that the allegation against him was that he made dishonest misappropriation of money during the relevant period. No objection could therefore be raised as regards charge No. 1.

6. But as regards charge No. 2, it is contended that the falsification of accounts in Exhibits P-7, P-8 and P-10 effected on various dates constituted distinct offences and therefore a separate charge should have been framed in respect of each of the offences of falsification. The distinct offences could not have been clubbed together as it would be against the provisions of Section 233(2), Cr.P.C. The benefit of Section 222(2), Cr.P.C. is only available when the accused is charged with criminal breach of trust or dishonest misappropriation of money and that provision cannot be availed of in framing a charge under Section 477A of the Penal Code, unless each of these items of falsification is part of same transaction. Each entry made in Exhibits P-7, P-8 and P-10 to cover up any distinct offence of criminal breach of trust or dishonest misappropriation of money by themselves may not constitute a distinct offence of falsification of accounts. In that case every one of them should have been charged separately. A series of charges under Section 477-A even though committed in the course of one year or less are not permitted to be clubbed together as Section 222(2) refers only to the criminal breach of trust and dishonest misappropriation of money and not falsification of accounts. The contention of the learned Counsel of the Bank was that each of the items of falsification of accounts in Exhibits P-7, P-8 and P-10 is so connected together as to form the same transaction as required by Section 235(1). Cr.P.C. and therefore the petitioner can be charged and tried at one trial for every such offence. The learned Counsel wants therefore to bring the case within the exception under Section 235(1) Cr.P.C.

7. It is clear that because of Section 222(2) several offences of criminal breach of trust and dishonest misappropriation of money can be clubbed together under one charge if they had taken place in the course of one year or less within the meaning of Section 234. But this deeming provision is not applicable to offences falling under Section 477-A of the Penal Code. It would look, therefore, that the second charge is not in accordance with law. It is contended on behalf of the petitioner that there is also misjoinder of charges. The clubbing of charges of criminal breach of trust with one or more charges of falsification of accounts amounts to misjoinder of charges which would then be inconsistent with the provisions of Section 233, Cr.P.C. Sections 236 and 239 Cr.P.C. are irrelevant for our present purpose. It has to be said that the several sections mentioned in Section 233 are not mutually exclusive and that they are not supplement to one mother. The criminal breach of trust and falsification of accounts are not offences of the same kind. So it is sufficient for our purpose to consider whether the joinder of charges can be -justified under Section 235(1). Cr.P.C. It is in this regard that we have to consider whether the prosecution has strictly established that the joinder is permissible under any one or more of the sections mentioned in Section 233. It is true that the prosecution has a case that the falsification of accounts covered by charge No. 2 are committed in the course of the same transaction during the period covered by charge No. 1. But, the fact remains that Section 234(1) provides only of the clubbing of 3 charges in respect of offences of the same kind committed within the space of 12 months from the first to the last of such offences. The charge No. 2 was, therefore, not in compliance with Section 234(1). Cr.P.C.

8. The following dictum was established in Debi Prasad v. Emperor AIR 1944 Oudh 122 : 45 Cri LJ 538.

A number of falsifications can be included in a single charge provided they are connected with the same fraud; that is to say although it is possible to regard them as separate offences the law provides that they may be regarded as one offence. Where fraud of the same kind is alleged to have been perpetrated over a relatively short period, where the same means, falsification of accounts in certain ways, are employed to facilitate or cover up the fraud, and where both the various acts of misappropriation and the various acts of falsification may legally be combined in one charge respectively all these acts constitute a series of acts so connected together as to form the same transaction.

9. In the Nagpur High Court in G.S. Ramsheshan v. Emperor AIR 1935 Nag 178 : 36 Cri LJ 1216 the following view was expressed:

The trial of the three charges of. embezzlement and of corresponding charges of falsification of accounts together is illegal. Although one particular item embezzled and the falsification of accounts relating to that particular item may be considered to be one transaction for the purposes of Section 235(1), Criminal P.C. any other item of embezzlement, or more cogently in view of the provisions of Section 222, Criminal P.C. the particular falsification with respect to another item of embezzlement is not part of the same transaction along with the former one and the term 'same transaction' cannot be used to cover a whole series of acts in pursuance of a conspiracy or by an individual in carrying out a studied policy of fraud. And the fact that all the items of embezzlement may be included in a lump sum, does not make the individual acts or individual series of falsification with reference to one item of embezzlement part of the same transaction.

10. In Kashiram v. (Firm) Hurdut Rai Gopal Rai AIR 1935 Cal 312 a clerk sets out to rob his employer in the course of which he misappropriated a large amount in the course of one year where it was held that the illicit operations by the clerk could be regarded as one transaction. So, it was pointed out that a person may lawfully be tried for one offence of misappropriation in respect of several items joined with a charge of falsification which was carried out as one of the series of acts constituting the transaction by which the misappropriation was effected. The following interpretation was given in the above decision as to the meaning of one transaction:

The word transaction means a group of facts so connected together as to involve certain ideas, namely, unity, continuity and connexion. In order to determine whether a group of facts constitutes one transaction it is necessary to ascertain whether they are so connected together as to constitute a whole which can be properly described as a transaction.

11. The Mysore High Court in a decision reported in C.N. Krishna Murthy v. Abdul Subhan AIR 1965 Mys 128 : 1965 (1) Cri LJ 565, after giving the meaning of transaction which occurs in Section 235, Cr.P.C. came to the conclusion that a separate charge should be framed and tried separately in respect of Section 477A of the Penal Code when the falsification of accounts was alleged in respect of dishonest misappropriation Or criminal breach of trust covered by those falsification of accounts. The observation in that judgment is as follows:

There was also a misjoinder of charges as the case did not fall within any of the exceptions mentioned in Section 233, Section 234 does not apply because criminal breach of trust and falsification of accounts are not offences of the same kind. Nor does Section 235 apply because ft was neither alleged nor proved that the offences were so connected together as to form part of the same transaction.

12. More or less the same view was expressed in Sri Ram Varma v. State : AIR1956All466 (FB). But the extreme view adopted in the Allahabad case need not be followed in the instant case. The decision in Sharpurji Sorabji v. Emperor AIR 1936 Bom 154 : 37 Cri LJ 688, is more to the point. It is pointed out in that decision that the word 'transaction' in Section 235(1) is a vague term. It is not intended to be interpreted in any artificial or technical sense. Common sense and ordinary use of language must decide whether on the facts of a particular case, there is one transaction or several transactions.

13. In Gajadhar Lal v. Emperor AIR 1920 Pat 775 : 22 Cri LJ 230, Mullick and Bucknill, JJ. held:

Where a person is charged under Section 408, I.P.C. with criminal breach of trust committed in one year in respect of a lump sum of money, the Court is competent, by virtue of the provisions of Sections 234 and 235, Cr.P.C. to try with this charge three charges for an offence under Section 477A I.P.C. if committed within the period of one Year and forming part of the same transaction as the offence under Section 408.

I am in respectful agreement with the (above view.

14. Reviewing all these decisions, it is apparent from the facts of the present case that more than 3 items of falsification of accounts under Section 477A of the Penal Code should not have been clubbed with charge No. 1 as it is inconsistent with the provisions of Section 234(1), Cr.P.C. When there is a violation of a statutory provision in framing of charges as well as the trial of the ease, it has to be said that the trial is vitiated by illegality as it is proved to be against the provisions of the Criminal Procedure Code. The charge No. 2 has therefore, to be confined to 3 items of falsification of accounts. That has to-be tried along with charge No. 1. It is also to be pointed out that so far as each item of misappropriation is covered by corresponding item of falsification of accounts which, in 1he circumstances of the case, constituted the same transaction. In view of that conclusion, not more than 3 items of falsification of accounts can be clubbed together with misappropriation of funds covered for the period of one year. In the circumstances of the case, therefore, the Judgments of the Courts below shall be set aside to enable the trial Court to frame charge No. 2 as pointed out above and conduct the retrial in accordance with law.

15. In the result, the conviction and sentence against the petitioner are set aside. The case is remanded to the trial Magistrate for decision after refraining charge No. 2 confining it to 3 items of falsification of accounts to be clubbed with charge No. 1 and conduct the trial in accordance with law. The records of the case shall be sent to the trial Court as expeditiously as possible.


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