1. In this case the appellant has been convicted under Section 409, Indian Penal Code, for criminal breach of trust by a Public servant in respect of Rs. 432, made up of five sums of money entrusted to him at different times during the year 1910, and he has also been convicted of five separate falsifications of accounts, under Section 477A, Indian Penal Code, each falsification being in respect of one of the five sums misappropriated. We are of opinion that each of these five separate falsifications was a distinct offence and that the trial of these five distinct offences (to say nothing of the criminal breach of trust) was illegal with reference to Section 234, Criminal Procedure Code, and vitiates the whole trial by Subramania Iyer's case 25 M. 61.
2. The present case is in all essentials exactly on all fours with the case of Kasi Viswanathan v. Emperor 30 M. 328 : 5 CrI. L.J. 341 : 2 M.L.T. 177 : 17 M.L.J. 141 in which reasons for the decision are fully stated that the proper course to be followed in cases like the present is clearly pointed out.
3. The appellant's Vakil argues that on the merits the appellant could not be convicted under Section 409, Indian Penal Code, as it was not his duty to receive the money and he relies on the cases reported in 1 Weir's pages 465 to 466. He contends that, in these circumstances we ought not to order a re-trial. We do not think it necessary at this stage to decide whether a conviction under Section 409, Indian Penal Code, could be sustained, as the objection, even if valid, would not prevent the accused being punishable under Sections 406 and1 403, Indian Penal Code.
4. We, therefore, set aside the conviction as the trial was illegal and we direct the appellant to be re-tried by the Sessions Judge in accordance with law.