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Nagindas Tarachand Kothari Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1986)1GLR577
AppellantNagindas Tarachand Kothari
RespondentState of Gujarat
Cases ReferredSmt. Kalctwati and Anr. v. The State of Himachal Pradesh
Excerpt:
.....has not been established. however, in sub-section (2) thereof it is clearly provided that when accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property 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 219, of the criminal procedure code, but it was on the condition that the time included between the first and the last of such dates shall not exceed one year. section 215 of the criminal..........it is not denied by mr. purshottam that even prior to the amendment of section 1537 of the code misjoinder by itself would not have vitiated the trial unless prejudice to the accused had been proved....15. in the case of state of bombay v. umarsaheb buransaheb inamdar and ors. : air1962sc1153 wherein the charge framed was with respect to the gross sum embezzled within the period between 6-3-1949 and 30-6-1950 and the charge therefore, was in contravention of the provisions of section 222(2). it has been held in the said case that the defect does not cause prejudice to the accused and does not vitiate the trial as the charge could have been split up into two charges and therefore, did not vitiate the trial in view of the provisions of section 537 of the code.16. similarly, in the.....
Judgment:

B.S. Kapadia, J.

1. The present revision application is filed by the original accused against the order of dismissal of appeal and confirmation of conviction and sentence passed by the learned Addl. Sessions Judge, Surendranagar on 27th August, 1980 in the Criminal Appeal No. 78 of 1979 which was filed against the order of conviction and sentence passed by the learned Judicial Magistrate First Class. Dhrangadhra on 29th October, 1979 in the Criminal Case No. 375/78. The learned Judicial Magistrate First Class by the aforesaid order convicted the accused petitioner for the offence under Section 408 and also for the offence under Section 201 of the IPC and sentenced him to undergo R.I. for three years and fine of Rs. 5,000/- and in default to undergo S.I. for one year for the offence under Section 408 of IPC and also imposed one year's R.I. and a fine of Rs. 500/- and in default further S.I. for three months for the offence under Section 201 of the IPC, but ordered that substantive sentence of imprisonment to run concurrently. As stated above, the learned Addl. Sessions Judge had confirmed the aforesaid order of conviction and sentence.

2. The facts of the case leading to the present revision application can be briefly stated as under:

3. The petitioner was the Secretary of Shree Kodh Group Kheti Vishayak Vividh Karyakari Sahkari Mandali. The Mandali was a multi-purpose co-operative society dealing in seeds and other agricultural commodities. The petitioner was working as its Secretary for the last 10 to 12 years. The agriculturists were members of the said Mandali. As the working of the said Society was not in accordance with law and Rules and as there was mismanagement the Assistant Registrar of Cooperative Societies under Section 81 of the Gujarat Co-operative Societies Act, 1961 passed an order removing the managing committee and passed an order for taking over the management of the Society by the Administrator. One Shri Chaturbhai Muljibhai Pachasra, who was the Assistant Inspector of Surendranagar Dist. Co-operative Bank of Dhrangadhra Branch was appointed as Administrator of the said Society. The accused-petitioner being the Secretary, as per the Rules; the entire record of the Society together with the stock, cash, dead stock and accounts used to remain with him. On the appointment of the Administrator, he issued a notice to the petitioner to hand over the same along with the charge of the management of the Society.

4. According to the prosecution, the petitioner instead of handing over the charge and the relevant accounts books and records absconded. The petitioner-accused by letter dated 13-9-1968 specified that he would hand over the charge, but he did not remain present. Another letter was written by the Administrator to the Assistant Registrar of Co-operative Societies, whereby the Assistant Registrar passed an order to take over the charge in the presence of two panchas. It is the case of the prosecution that though the accused-petitioner had shown his willingness to hand over the charge of the Society, he had not remained present, but he absconded and left whatever to be handed over to his wife and hence, in the presence of two witnesses the Administrator had taken over the charge of the Society. A panchnama of handing over the charge was prepared by the Administrator (Exh. 24). According to the prosecution the petitioner had failed to hand over the records and registers for the years 1966-67, 1967-68 and 1968-69. According to the prosecution either the accused destroyed or removed the said records or did not produce the same.

5. It was however, found while taking over the charge that there were stocks of goods worth Rs. 12,361.54 and the deficit in the dead stock was worth Rs. 1, 1541.80. As against that according to the last balance upto 30-6-1968, as submitted by the accused-petitioner as per Exs. 25 and 26 Rs. 1284.08 was the value of the stock Rs. 5488.98 was the cash with him. Thus, the petitioner-accused failed to account for the goods of stock in trade and dead stock worth Rs. 23,736.74.

6. It is also the prosecution case that the petitioner had collected or received Rs 15,316.42 from some of the members of the Mandali and they had produced the receipts therefor, but the petitioner failed to credit the said amount and hand over the same to the Society and had misappropriated the same. Hence after obtaining necessary orders from the opponent authority the complaint at Ex. 8 was filed on 6-3-1979 against the present petitioner for the offences under Sections 408 and 201 of the IPC. On the facts stated above, it was the case of the prosecution that he accused-petitioner was entrusted with, or having a custody of stock in trade and cash, etc, he committed criminal breach of trust in respect of that amount of Rs. 23736.74 and he had also misappropriated the amount of Rs. 15316.47 the amount of recovery from the members of the Society and thereby, he has committed the aforesaid offences. After investigation charge-sheet was filed against the accused-appellant.

7. The petitioner-accused appeared through an Advocate. The learned Magistrate framed charges and read over and explained to the accused. The accused-petitioner pleaded not guilty of the same. The accused gave an application (Ex. 63) that he should be granted-exemption from remaining present and after recording the evidence, further statement of the accused was recorded. It is an admitted position that the accused was the Secretary of the Society and it is also an admitted fact that the matter had to be proceeded with giving him exemption as prayed, but the petitioner-accused denied that he had not handed over the relevant records and registers of the Society. In his defence statement as revealed in the further statement he has stated that he had been in love with one Garasia girl and some Garasias of village Kodh had been desperate and as such he had to leave Kodh and thereafter he was residing at Dhrangadhra. According to him, meeting was to be held at Kodh and he had gone with the registers and account books on 15th September, 1968. He had kept every thing in the godown of the Society but when he came out at night time some 10 to 12 Garasias of the village attacked him and hence he had to escape therefrom and he went to Dhrangadhra and lodged a complaint to that effect (Exh. 63) It is his defence that he had failed to hand over the records not because there was any misappropriation committed by him. Further, he has stated that whatever amounts he has received were received by passing regular receipts and the said amounts have been already credited in the accounts books and therefore, he has not committed any criminal breach of trust with respect to the amount received from the members of the Mandali. He had also filed written statement at Ex. 64, but he has not filed any defence evidence.

8. The learned Magistrate after appreciating the evidence on record came to the conclusion that the prosecution has established the guilt beyond reasonable doubt and as such has passed the aforesaid order which is also confirmed by the learned Addl. Sessions Judge. Hence the present revision application.

9. Shri M.M. Desai the learned Advocate appearing for the petitioner accused has raised two points before me. The first point is about the charge. According to Mr. Desai, the charge is bad in law and therefore, looking to the facts of the case no valid charge can be levelled against the accused. He therefore submits that new trial should be directed to be held upon the charge which should be framed properly. In support of his submission, he points out that in the charge-sheet at Ex. 4 what is alleged is that on 9-12-1968 or any time before that date when the accused-petitioner was discharging his duties as Secretary of the said Society he was entrusted with certain amount of the members of the Society and the petitioner has misappropriated the amount of Rs. 15,316.42 as well as the stock and dead-stock worth Rs. 23,736.74 and he further points out from the judgment of the trial Court that the said amounts were recovered during the period from 1964 to 1968. He therefore, submits that as required under the provisions of Section 219 of the Criminal Procedure Code person accused of more offences than one of the same kind committed within the span of twelve month's from the first to the last of such offences, may be charged with and tried at one trial for any number of them not exceeding three. In his submission undisputedly there were more than three such receipts covering a period of more than twelve months. He, therefore submits that there is misjoinder of charges as there are more than three receipts under which amounts have been allegedly misappropriated by the accused-petitioner during the period which spreads over more than one year.

10. It may be stated that grievance on this point of Shri Desai that there is misjoinder of charges appears to be correct. However, the question is that this very point was not taken before the trial Court and this point of misjoinder of charges was raised before the Addl. Sessions Judge, but the Addl. Sessions Judge has rejected contention raised on behalf of the accused-petitioner specifically holding that any failure of justice alleged to have been occasioned has not been established. Therefore, merely because there was irregularity in the charge namely, of misjoinder of charges by itself will not invalidate the order of conviction and sentence under Section 464 of the Criminal Procedure Code.

11. Shri Desai submits that when there is misjoinder of charges contrary to the provisions of Section 219 of the Criminal Procedure Code it is an illegality and therefore, the case will not be governed by the provisions of Section 464 of the Criminal Procedure Code.

12. It may be stated that I asked Shri Desai to point out any decision on the point, but he was not in a position to cite any such judgment. From the perusal of Chapter XVII of the Criminal Procedure Code it is clear that Section 211 provides for contents of charge. Section 212 prescribes about the particulars as to time, place and person. However, in Sub-section (2) thereof it is clearly provided that when accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property 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 219, of the Criminal Procedure Code, but it was on the condition that the time included between the first and the last of such dates shall not exceed one year. Section 215 of the Criminal Procedure Code speaks about the effect of arrears, that unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice, no such omission in the charge at any stage of the case can be treated as material one. Thereafter there are provisions with regard to joinder of charges. The genera) rule is stated in Section 218 which prescribes that for every distinct offence of which any person is accused there shall be separate charge and every such charge shall be tried separately, but the right is given to the accused to have joint trial in respect of number of charge framed against such person and he can exercise such right by making an application in writing and the Magistrate concerned has to form the opinion as to whether such person is likely to be prejudiced thereby and thereafter he has to pass necessary order. However, if has been specifically stated in Sub-section (2) of said Section 218 that nothing in Sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223. As stated above, Section 219 of the Criminal Procedure Code speaks about clubbing of the offence of same kind and the maximum number of them should not exceed three during the period of one year. Section 220 is further an exception to Section 218 that if in one series of acts 90 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. Apart from Section 215 there is a special provision made in regard to the error in joinder of charges and the effect thereof under Section 464 of the Criminal Procedure Code when the trial is already concluded. It is specifically provided in the said Section 464 that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned. On plain reading of Section 464 it is clear that misjoinder of charge is also included in this section and the order passed by the Court of the competent jurisdiction cannot be held to be invalid on the ground of misjoinder of charges unless it is established to the satisfaction of the Court of appeal revision for forming the opinion that failure of justice in fact been occasioned thereby. Except the Sections 215 and 464 of the Criminal Procedure Code there is no other section which speaks about the effect of the breach of the provisions with regard to the joinder of charges etc.

13. It may be stated that in Chapter XXXV of the Criminal Procedure Code with the heading 'Irregular Proceedings' Section 460 speaks about the irregularities which would not vitiate the trial. Section 461 speaks about the irregularities which vitiates the trial, but it does not include any irregularity in Chapter XXVII with regard to joinder of charges. There is also Section 465 with regard to other irregularities in the complaint, summons, warrant, proclamation, order, etc. and on account of any such irregularity the finding or sentence or order of the competent court cannot be reversed or altered unless in the opinion of the court, failure of justice has in fact occasioned thereby. Thus, considering the various provisions it is clear that misjoinder of charge has been held to be an 'irregularity' covered under Section 464 of the Criminal Procedure Code.

14. Shri Desai, the learned Advocate appearing for the petitioner could not point out any provision to hold any such error of misjoinder of charges to be an 'illegality' and not an 'irregularity.' It has been held by the Supreme Court in the case of Kadri Kunhahammad v. The Stale of Madras as under:

(7) The failure of the : 1960CriLJ1013 prosecution to split up the first count into two sub-counts cannot obviously be regarded as introducing a fatal infirmity in the validity of the trial. It would be noticed that this argument is not one of misjoinder.

It is based on the formal requirement prescribed by the proviso to Section 222(2)(Criminal Procedure Code, 1898) as to how charges of breach of trust should be framed. There is no difficulty in holding that such an irregularity can be cured both under Section 225 and Section 537 of the Code, provided of course no prejudice has been thereby caused to the appellant's case.

Further in the said case in para-9 after considering the Privy Council case it has been observed as under:.Even in case of misjoinder where the contravention of the provisions of Section 234 of the Code is involved, it is not denied by Mr. Purshottam that even prior to the amendment of Section 1537 of the Code misjoinder by itself would not have vitiated the trial unless prejudice to the accused had been proved....

15. In the case of State of Bombay v. Umarsaheb Buransaheb Inamdar and Ors. : AIR1962SC1153 wherein the charge framed was with respect to the gross sum embezzled within the period between 6-3-1949 and 30-6-1950 and the charge therefore, was in contravention of the provisions of Section 222(2). It has been held in the said case that the defect does not cause prejudice to the accused and does not vitiate the trial as the charge could have been split up into two charges and therefore, did not vitiate the trial in view of the provisions of Section 537 of the Code.

16. Similarly, in the case of Birichh Bhujan and Ors. v. State of Bihar : AIR1963SC1120 , it has been held that if the joinder of such charge is made in contravention of the said provisions, it will be misjoinder of charges. But in the said case High Court has held that there was no failure of justice and the appellants had their full say in the matter and they were not prejudiced in any way. The order passed by the High Court in the said case was upheld.

17. In another case reported in : [1964]3SCR297 in the case of The State of Andhra Pradesh v. Chhemalapati Ganeshwara Rao and Anr. it has been observed that where an objection to the misjoinder of charges contrary to the provisions of the Code is taken at an early stage of trial there is time enough to rectify the error, but where such objection is raised for the first time in the High Court the Court has to consider whether prejudice has in fact been caused to the accused. It has also been observed that merely because the accused persons are charged with large number of offences and convicted at the trial, the conviction cannot be set aside by the appellate court unless it in fact came to the conclusion that the accused persons are embarrassed in their defence with the result that there was a failure of justice.

18. In above view of the matter I am unable to agree with the contention raised by Shri Desai that misjoinder of charge is an 'illegality' and not an 'irregularity.' This case, as stated above clearly falls within the ambit of Section 464 of the Criminal Procedure Code which also includes misjoinder of charges and therefore, it is an irregularity. Unless it is proved that in has resulted in failure of justice the finding arrived at by the courts below cannot be set aside. It is now settled law that failure of justice includes denial of fair trial.

19. It may be stated that the learned Addl. Sessions Judge has observed in his judgment as under:.The learned Advocate for the accused is pot able to point out that any failure of justice has occasioned by the alleged misjoinder.

20. Shri Desai, the learned Advocate appearing for the petitioner before me also has not been able to point out that as to how failure of justice has occasioned by misjoinder of charges. It may be stated that the prosecution witnesses were examined and they were fully cross-examined by the learned Advocate appearing for the accused. Further, the accused-petitioner was given the proper opportunity for placing the defence. The accused has also filed his written statement and therefore, there was no embarrassment to the accused in leading his defence.

21. Shri Desai has also pointed out that the learned trial Judge has considered the Audit Report which was produced with the Muddamal Pavti at Sr. No. 4, and the same has been considered without proving the same.

22. It may be stated that the prosecution has already made an application at Ex. 6 land at that time the learned Advocate for the accused strongly opposed the examination of the auditor as a witness. However, it may be stated that so far as the appellate court is concerned, it has purely relied on the report made by the Administrator at Ex. 43 along with the balance sheet and the statements which were originally signed by the accused which are Exs. 25 and 26. In that view of the matter, I am of the opinion that there is no denial of fair trial to the petitioner. Hence no failure of justice has occasioned and therefore, I do not agree with the contention that on account of misjoinder of charges, the finding, the order and sentence passed by the Courts below should be get aside.

23. The second point argued by Shri Desai is about the validity of the order of conviction under Section 201 of the Indian Penal Code. He pointed out from the language of the Section 201 of the IPC that it would be an offence provided that any person knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear with the intention to screen the offender from legal punishment. Therefore, relying on these wordings, of section he submits that the words 'causes any evidence of commission of that offence to disappear' mean the person other than the principal offender and it would not include the principal offender.

24. For supporting his contention Shri Desai has relied on the judgment reported in A.I.R. 1916 Calcutta 919 in the case of Sumonta Dhupi and Ors. v. Emperor. He has pointed out that it is observed in the said judgment that it is well settled law that a principal cannot be convicted as an accessory after the fact. It may be stated that on perusal of the said judgment it is clear that Justice Rao has observed while referring to the unreported Criminal case of the Bombay High Court Reporter 189 at page 799 in the case of Queen Empress v. Limbya as under:

I accept with confidence the rule laid down in that case, where it is impossible to say definitely, however, strongly, it might be suspected that an accused was guilty of murder, mere, suspecion is no bar to a conviction under Section 201. But I am satisfied that it be accepted as a proved fact that the accused before the court disposed of a dead body and if the acceptance of that fact completes the chain of circumstantial evidence which proves beyond doubt that the accused were actual principals present at the murder and taking part in the murder, they cannot be convicted of the minor offence of causing evidence of the murder to disappear even though by an error of the Judge or by a misconception of the position by the Public Prosecutor the charge of murder is subsequently withdrawn.

It may be stated that it is never propounded in the said case that the principal offender cannot be charged and/or convicted for the offence under Section 201 even though he cannot be convicted for the principal offence. The judgment of the Supreme Court in the case of Smt. Kalctwati and Anr. v. The State of Himachal Pradesh : 1953CriLJ668 , puts at rest the controversy on this point. In the said case the Supreme Court has held as under:

Section 201 is not restricted to the case of a person who screens the actual offender; it can be applied even to a person guilty of main offence, though as a matter of practice a court will not convict a person both of the main offence under Section 201....

25. It may be stated that subsequently the case reported in 1979 Criminal Law Journal page 517 the accused was convicted for the offence under Sections 302, 304-A and also for the offence under Section 201 of die I.P.C. It may therefore, be stated that when the person is convicted for the main offence, it would not be in accordance with practice to convict him for the offence under Section 201 of the I.P.C. also. The very fact of causing evidence of the commission of the offence to disappear should be with the intention of screening the offender from legal punishment and therefore, it would not be proper and desirable to convict the person who is convicted for the principal offence, for the offence under Section 201 of the I.P.C. also.

26. It may be stated that here in this case the petitioner is convicted for the offence under Section 408 of the I.P.C. In view of the observations made by the Supreme Court in the case of Kalawati (supra) which is binding, it would not be in accordance with practice to convict the accused-petitioner for the offence under Section 201 of the IPC when he is convicted for the principal offence namely, under Section 408 of the IPC. It is made clear that in view of the above decision, I have not considered the evidence. Otherwise, there is a clear evidence of the letter written by the accused-petitioner on 30th September 1968 (Ex. 20) which clearly proves, that he had with him the books of account which are not produced before the administrator.

No other point has been argued before me in this case.

27. In view of the above discussion, the revision application stands partly allowed. The conviction and sentence of the accused-petitioner for the offence under Section 201 of IPC is hereby set aside and the conviction and sentence of the accused-petitioner for the offence under Section 408 of the IPC is maintained. Fine, if any, paid by the accused-petitioner for the offence under Section 201 of the IPC be refunded. The bail bound is ordered to be cancelled. The accused petitioner to surrender immediately. Rule is made absolute to the aforesaid extent. (ATP) Application partly allowed.


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