Y.D. Desai, J.
1. This revision petition is filed by Natwarlal Chatrabhuj Shah, original accused No. 2. who alone with Opponent No. 2 Karadia Variarie Narari was accused No. 1 in Criminal Case No. 2143 of 1968 filed in the Court of the Judicial Magistrate First Class, Mangrol. The petitioner-original accused No. 2 was the Secretary and Opponent No. 2 original accused No. 1 was the President of the Dhelana Multi-Purpose Co-operative Society for the years 1965-66 and 1967-68. The petitioner and : opponent No. 2 will hereinafter be referred to as accused Nos. 2 and 1 respectively.
2. The Co-operative Society was doing the business of distributing sugar and giving loans to its constituents. It was the duty of accused No. 2 to collect the amount from the members of the Society and to pass receipts in token of monies given, to write account-books and to maintain all accounts of the working of the Society. The accounts of the said Society had been audited on or about 7-6-1966 for a period from 1.5.1965 i to 31-5-1966, The- auditor who inspected the accounts felt the necessity of inspecting the accounts of the period subsequent to 31-5-1966. One Mr. R. A. Parikh sub-auditor for the purpose of auditing the accounts of the Society on 20-8-1967 went to the office of the Society at Dhelana which was being maintained in the house of accused No. 1 and he was informed by accused No. 1 that accused No. 2 had taken away the books of accounts and sum of Rs. 2300/-. Mr. Parikh then went to Rudalpur where accused (No. 2 was staying and he was informed by the accused No. 2 that the books of the Society were with accused No. 1 and not with him. Subsequently on a report being made one Dalatshanker Pandva. Assistant Co-operative Societies Officer went i to the office of the Society in September 1967. and attached from the cup-board in the office of the Society at the house of accused No. 1. the books containing the resolutions of the society and one book of counter-foils of receipts issued by accused No. 2. It was found that between 1-6-1966 and 25-4-1967 a sum of Rupees 18,864.78 P. had been misappropriated. Subsequently a complaint came to be filed against both the accused Nos. 1 and 2 charging them with having committed criminal breach of trust as also abetting the offence, as also under Section 201 read with Section 114 of the Indian Penal Code for causing the disappearance of the account-books of the Society.
3. In the course of the trial the learned Magistrate framed charges in the alternative charging accused No. 1 under Section 406 and Section 408 read with Section 109 Indian Penal Code and accused No. 2, i. e. the present petitioner under Section 406 read with Section 109 Indian Penal Code and also under Section 408 Indian Penal Code. Both of them were also charged under Section 201 read with Section 114 of the Indian Penal Code.
4. The learned Magistrate convicted the accused No. 1 for the offence under Section 406 Indian Penal Code and the accused No. 2, the present petitioner under Section 406 read with Section 109 Indian Penal Code. He held that so far as the charge under Section 201 read with Section 114 Indian Penal Code had not been proved. With regard to the charge under Section 408 and Section 408, read with Section 109. Indian penal Code the learned Magistrate has recorded in his judgment while deciding points for determination bearing Nos. 4. 5 and 8 that. 'In view of the findings on points Nos. 1. 2 arid 3 in affirmative the said points are not decided.' He sentenced the accused No. 1 to undergo R. I. for one year and to pay a fine of Rs. 1500/- in default to undergo R. I. for 3 months for the offence under Section 406 Indian Penal Code. Accused No. 2 was sentenced to undergo R. I. for one year and to Pay a fine of Rs. 500/- in default to undergo R. I. for 2 months for the offence under Section 406 read with Section 109 Indian Penal Code.
5. The learned Magistrate was of opinion that both the accused were acting in concert with each other and each of them was throwing the burden on the other for producing the account-books : that both the accused were interested in removing the account-books and that a resolution dated 20-4-1967 of the Managing Committee had been sot up since the members of the Managing Committee had not signed, the proceedings in correctness and that this resolution postponing the payment of loans by the debtors oft the Society was done by both the accused and of whom accused No. 2 had written the resolution. While holding that accused No. 2 petitioner had handed over the monies realised from the debtors of the Society, he held that this misappropriation by accused No. 1 could not have been possible without active cooperation of the accused No. 2 and convicted and sentenced them as above.
6. Accused No. 1, the president of the Society Varjang Naran filed Criminal Appeal. No. 50 of 1969 against his conviction. Similarly the accused No. 2 the present petitioner . filed Criminal Appeal No. 51 of 1969 in the Court of the Sessions Judge at Junasadh. Both the appeals were heard together by the learned Sessions Judge and he was of Opinion that the learned Magistrate had lost sight of several circumstances which required consideration. He held that admittedly as also on the evidence led. the accused No. 2 had received monies and passed receipts to as many as 24 persons and that in fact the cash amounts had remained with him. That in fact the accused No. 1 had informed the authorities including the police on three occasions viz. on 24.4.67, 1.5.1867 and in the month of July, 1967 and also informed the sub-auditor and Assistant Co-operative Officer in July, 1967 about the actions of accused No. 2, the applicant having taken away the books from him as also not accounting for Rs. 2300/-. He also believed the the evidence of Mr. J. B. Joshi the Manager of the Co-operative Bank with which the Society had dealings and his evidence showed that no amounts had been credited with the Bank for the period from 10.1.1967 to 5.12.1967. He. therefore, was of opinion that the conduct of the accused No. 1 as also the fact that the account books had been removed by accused No. 2 who was daily dealing with them showed that the accused No. 1 did not entertain the requisite guilty intention to misappropriate the monies. He, therefore, held that it was the duty of accused No. 2 to deposit the monies in the Bank which he did not do nor did he deliver the same to accused No. 1 and that it was probable that it was the petitioner-accused No. 2 who had misappropriated the cash and, therefore, held that the accused No. 1 opponent No. 2 had been wrongly convicted for the offence under Section 406 Indian Penal Code and altered the conviction of the petitioner-accused No. 2 to one under Section 406 Indian Penal Code from his conviction for the offence under Section 406 read with Section 109 Indian Penal Code. He held that the requirements of Section 221 and Section 222 Sub-clauses (1) and (2) Criminal Procedure Code were fulfilled. He also held that the charges were framed in the alternative and that the evidence clearly shows that it was accused No. 2 the petitioner who had misappropriated the monies and that it was open to him while considering the provisions of Sections 236 and 237 Criminal Procedure Code to alter the conviction of abetting the main offence to convict the petitioner of the main charge under Section 406 Indian Penal Code. The learned Sessions Judge, therefore, altered the conviction of the petitioner to one under Section 406 Indian Penal Code while maintaining the sentence already inflicted upon him. It is against this order that the accused No. 2 has preferred the present revision petition.
7. The learned advocate representing the petitioner Mr. Gandhi emphasized that provisions under Section 423(i)(b) did not empower the appellate Court to alter the finding of conviction and not the finding of acquittal and secondly that although there was no clear finding of the accused having been acquitted of the charge under Section 408 read with Section 109, Indian Penal Code, it must be taken that they were acquitted of those charges and. therefore, it was not open to the learned Sessions Judge to convict the petitioner under Section 406 Indian Penal Code. He has referred to me several rulings of the Supreme Court as also of the Gujarat High Court. They are:
(1) Ravishankar v. State of Gujarat 0065/1966 : AIR1966Guj293 . 12) Lakhan Mahto v. State of Bihar : 1966CriLJ1349 . (3) Kishan Singh v. Emperor AIR 1928 PC 254. (4) Tarachand v. State of Maharashtra : 2SCR775 . (5) Prabat Laxman v. State of Gujarat : AIR1962Guj51 , and (6) State of Andhra Pradesh v. T. Narayana : 2SCR904 .
I would not at length go into the facts dealt with in each of the rulings since it has been uniformly held that the phrase 'alter the finding' in Section 423(1)(b) has only one meaning and that is altering, the finding of conviction and not the finding of acquittal. Our Supreme Court has held that reversing the finding must mean, the finding of guilt. It is clear that Section 423(1)(b) applies to appeals against orders of conviction and sentence. The appellate Court in such a case can reverse the findings of conviction and acquit the accused or order a retrial but it cannot reverse the order of acquittal in favour of a party in respect of an offence alleged. It is clear that reversal of an order implies its obliteration whereas alteration thereof would stand to imply no more than modification and not its obliteration. See AIR 1966 SC 240. The same meaning is attributed to 'reversal' or 'altering' of a finding in Jayram v. State of Bombay : 1956CriLJ318 . It is held therein that there is a clear distinction between the reversal of finding and its alteration and Section 423(1)(b) provides that where there is reversal, the order to be passed is one of acquittal, discharge or retrial, whereas in the case of alteration, the order to be passed is one of maintaining, reducing or altering, the sentence. In view of this settled law on this point I have chosen not to discuss different facts connected with the rulings mentioned above.
8. I have already discussed the different charges levelled against different accused in the alternative by the learned Magistrate. The learned advocate was heard to emphasise that since charges under Sections 408 and 408 read with Section 109 Indian Penal Code levelled against the accused had pot been held proved, it must be taken that they were acquitted of that charge. However, one cannot lose sight of the fact that the accused has been convicted as mentioned above for the charges under Section 406 and Section 406 read with Section 109 Indian Penal Code which certainly is minor offence. It is surprising that the learned Magistrate while holding that the accused No. 1 was the President and the accused No. 2 was the secretary of the Society, did not choose to convict the accused under Section 408 and Section 409 Indian Penal Code which were the correct Sections to apply. However, the broad fact remains that their convictions are there for minor offence under Section 406 Indian Penal Code, It is clear that the learned Sessions Judge has made the position also clear in his judgment holding that since the conviction under Section 408 Indian Penal Code which was the proper Section to apply he has to confine himself to the section under which the accused were convicted.
9. The question then which arises for our consideration is whether the conviction under Section 406 read with Section 109 Indian Penal Code can be altered to one under Section 406, Indian Penal Code against the petitioner. The question whether a person charged with substantive offence can be convicted for the abetment thereof has been answered by the Privy Council In Begu v. Emperor AIR 1925 PC 130. The Supreme Court in Bhaeat Ram v. State of Punjab : AIR1954SC621 has observed that:
In an appropriate case the conviction may prabably have been altered to one of abetment of an offence under Section 409 of the Indian Penal Code.
In short the question may depend oh the facts of the case and the charge set out, that the case falls within the ambit of Section 237 Criminal Procedure Code. It is clear that the trial Court has framed a charge in the alternative following the provisions of Section 236 Criminal Procedure Code which is an exception to Sections 233 to 235 Criminal Procedure Code, Section 236 provides both for the case where separate charges are required to be framed to meet changes as to what may eventually be taken to be proved by the Court as also where there is necessity to frame a charge in the alternative is there, I think that the powers under Section 236 Criminal Procedure Code can even be exercised by the appellate Court where the same facts raise a doubt in the Court where the facts as disclosed from the evidence before the Court constitute an offence or some other offence. Thus these two Sections 236 and 237 Criminal Procedure Code appear to provide that an offender can be alternatively or cumulatively charged when it is doubtful whether the facts proved are capable of holding the offender guilty either of the principal offence or abetment of the offence when he is charged with the commitment of principal offence and vice versa.
10. In the present case we have a converse case of the petitioner having been convicted of substantive offence though charged with abetment thereof. I respectfully agree with the decision in the State v. Ruplal Koeri : AIR1953Pat394 where it has been held that an accused may be convicted of substantive offence even if he is charged only with the abetment of that offence : but not when he has been prejudiced in his defence of a case based on a substantive charge. This principle was also laid down in the rulings in and in Kashmira Singh v. State of Madhva Pradesh : 1952CriLJ839 . Same is the principle laid down in the ruling in Emperor v. Jayanti Lal AIR 1947 Sind 130 and Sarnbasiva Mudali v. Emperor : AIR1931Mad235 . These rulings lay down the principle that where the accused are charged with an abetment of an offence they can be convicted of the substantive offence if the accused have not been prejudiced in their defence of the case based on a substantive charge.
11. It is, however, true that in such an event what has to be seen is whether any prejudice is caused by such an alteration. If no such prejudice is caused an of fender can be convicted if the evidence is such as to establish the charge that might have been made, and the accused knows what he is being tried for. If there is no failure of justice. defects in the form of a charge may not be so material.
12. We have, therefore, to see whether the applicant has been prejudiced in his defence with the charge as it stood. It is clear that the punishment under Section 406 Indian Penal Code and for the charge under Section 406 read with Section 109 Indian Penal Code is the same. There is. therefore, no question of the petitioner having been convicted of any major charge. The only ground of the petitioner being prejudiced in his defence, as submitted by the learned advocate for the applicant, is that the applicant in his examination by the Court under Section 342 Criminal Procedure Code has not been put a question, thus giving an opportunity to the applicant to explain a circumstance, which according to the learned advocate has been used as a circumstance against him for his conviction, and that had reference to the allegation made by accused No. 1 that the petitioner was absconding after having taken away books and sum of Rs. 2300/-. His second contention was that in fact it was evident from the prosecution evidence that the auditor found him at Rudalpur, the place of his residence and. therefore, the story of his absconding with account-books was false and that if such a question had been put to him possibly he would have led the necessary defence. These were the only grounds of the accused being prejudiced in his trial and none else. What the, learned Sessions Judge has done, is to consider the circumstances of accused No. 1 having informed the authorities about the accused No. 2 taking away the account-books on 3 occasions mentioned above, for judging the question as to whether he could have swallowed the monies. He held that the monies were received by Accused No. 2 who had passed receipts for the same while preparing false counterfoils of the receipts. He also held the monies had not been deposited in the bank for a fairly long period and the conduct of accused No. 1 in informing the authorities on three occasions all showed that accused No. 2 could not have paid accused No. 1 the monies received by him to the accused No. 1 by the petitioner, (sic) It does not appear to be a circumstance used against accused No. 2. Moreover in the course of the trial the alternative charge under. Section 408 Indian Penal Code was already staring the petitioner in the face. He was represented by a lawyer. Admittedly he was the secretary of the Society and it was apparent to him that if the alternative charge under Section 408 Indian Penal Code stood proved against him he, could as well have been convicted under Section 408 Indian Penal Code. The learned Sessions Judge does not seem to utilise the circumstance of the alleged absconding of the petitioner against him for the purposes of convicting him under Section 406 Indian Penal Code, The learned Sessions Judge has also considered the question about the learned Magistrate relying on Ex. 81 the resolution said to have been Passed by the Managing Committee of the Society. However, holding that it was the duty of the petitioner to receive the monies and deposit in the Bank and there being no circumstances to show that he had handed over the monies to the accused No. 1 and the same being judged with the other circumstances connected with the conduct of the accused No. 1 he held that it was the accused No. 2 who received the monies and swallowed the same. In my opinion, therefore, no prejudice has been caused to the petitioner in his defence, looking to the charge as it stood, with the defence taken up by the accused No. 1 it was possible and even perhaps necessary for the accused No. 2 to have led evidence or to have shown circumstances from the evidence of the prosecution witnesses that in fact he had actually delivered the amounts which he had received from the constituents of the Society from time to time. In my opinion, therefore the learned Sessions Judge was entitled in law to alter the conviction of accused No. 2 from one under Section 406 read with Section 109 Indian Penal Code to one under Section 406 Indian Penal Code.
13. The result, therefore, is that this application must fail.
14. The application is rejected and the, finding of the learned Sessions Judge is confirmed. Rule is discharged. Bail bonds cancelled.