1. The petitioner has been sentenced to two years' rigorous imprisonment under Section 409, I. P.C., for criminal breach of trust.
2. He was originally charged under. Section 477-A, I. P.C., but; that count was struck out under Section 227, Criminal P.C. A Court may alter a charge at any time before judgment is pronounced; but of course, if in certain circumstances such alteration has occasioned a failure of justice, the appellate or revisional Court may interfere. It is a mistake to cite cases where the Courts have so interfered as though they establish a proposition in law limiting the discretion conferred upon the trial Court by Section 227, and preventing it absolutely from altering the charge at certain stages of the case. A discretion conferred by statute cannot be whittled away by ruling: In Re: An Attorney  41 Cal. 446 at p. 457,
3. In this case I do not find that any injustice was occasioned by striking out the second count. But the real difficulty is that the first count bears no relation to the facts proved. The accused was an accountant of Palni Municipality and is proved to have put up cheques drawn to self for the Chairman's endorsement persuading the Chairman, who was ignorant of English, that they were for contractors; and then drawing the money from the Sub-treasury and misappropriating it.
4. Assuming this to be true the accused cheated the person in charge of the Sub-Treasury to pay him out moneys, but this is not entrustment. As the learned Judge puts it,
the appellant did by means of a series of bogus cheques abstract from the Municipal funds a very large sum of money;
but the appellant was never entrusted with Municipal funds. He was merely an accountant, and his short answer to the first (and final) count in the charge would be that in the capacity of accountant he was never entrusted with funds.
5. In the circumstances the only course seams to be to set aside the conviction. It would be highly unsatisfactory that a guilty person should escape in this manner; but the learned Public Prosecutor in this case has produced under instructions certain papers which in any circumstances would have greatly mitigated the sentence, and possibly the miscarriage of justice is not as great as it may seem. This petition is allowed and the petitioner is acquitted.