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Kashiram Jhunjhunwalla Vs. (Firm) Hurdut Rai Gopal Rai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1935Cal312
AppellantKashiram Jhunjhunwalla
Respondent(Firm) Hurdut Rai Gopal Rai
Cases ReferredMichael John v. Emperor
Excerpt:
- .....of sums smaller that those actually drawn from the bank. he was in fact indicted on a charge of criminal breach of trust under section 408, i.p.c., and on two separate charges of falsification of accounts under section 477-a, i.p.c. at the trial the defence taken was a denial of the charges. the learned sessions judge says:the trial of the case appears to have a chequered career, and at one time certain questions were agitated in high court.2. he then said;in this court of appeal there has been absolutely no argument on the merits of the case.3. he gives certain reasons why that was so. the learned sessions judge continued:the whole argument by the learned advocate appearing for the appellant was restricted to three factors, namely (1) that the accused might now be given an.....
Judgment:

Costello, J.

1. This Rule is directed against a judgment of the Additional Sessions Judge of Howrah dated 31st July 1934 affirming the decision of Mr. B.K. Ghose, Magistrate of the first class, Howrah, dated 28th May 1934. The petitioner Kashiram Jhunjhunwalla was convicted by the learned Magistrate on charges laid under Section 408, I.P.C., and under Section 477-A of that Code and was sentenced under the latter section to one year's rigorous imprisonment and to pay a fine of Rs. 1,000. The case for the prosecution was briefly as follows: Kashiram in his capacity as manager and cashier of the complainant firm Hurdut Rai Golap Rai had in his charge certain cheque books which had been signed by the complainant for the purpose of the withdrawal of money from the bank when necessary. Taking advantage of the fact that these cheque-books were in his possession the accused drew from the bank certain sums of money and misappropriated a part of those sums and then sought to cover up the defalcations by making entries on the counterfoils of the cheque books of amounts smaller than the sums for which the cheques were actually drawn and the monies received by him. The main charge against him was that he had misappropriated a total sum of Rs. 2,200 which was made up of seven separate items. He was also charged with falsification in respect of two entries in 'the counterfoils and in his books of sums smaller that those actually drawn from the bank. He was in fact indicted on a charge of criminal breach of trust under Section 408, I.P.C., and on two separate charges of falsification of accounts under Section 477-A, I.P.C. At the trial the defence taken was a denial of the charges. The learned Sessions Judge says:

The trial of the case appears to have a chequered career, and at one time certain questions were agitated in High Court.

2. He then said;

In this Court of appeal there has been absolutely no argument on the merits of the case.

3. He gives certain reasons why that was so. The learned Sessions Judge continued:

The whole argument by the learned advocate appearing for the appellant was restricted to three factors, namely (1) that the accused might now be given an opportunity to cross-examine the prosecution witnesses, (2) that an opportunity might be given to the appellant's lawyer to argue the case before the Magistrate, and (3) that the charges framed by the Court below were vitiated by several factors of illegality.

4. Having disposed of the first two of those three points he said with regard to the third point:

The charge under Section 408, I.P.C. relates to a gross sum consisting of seven items of money alleged to have been misappropriated, and it has been argued that this militates against the principle of Section 234, Criminal P.C. In my opinion Section 222(2), Criminal P.C. furnishes a complete answer to this argument.

5. The only question which has been argued before us is the question whether it was lawful for the two charges of falsification to be joined with the charge of misappropriation, that is to say, with the charge of breach of trust under Section 408, I.P.C. Mr. S.K. Basu has not sought to argue that the latter charge in itself was illegal, and indeed that part of the matter is completely covered by the provisions of Section 222(2), Criminal P.C., which 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: Provided that the time included between the first and last of such dates shall not exceed one year.

6. It is clear therefore that it was well within the rights of the prosecution to charge the accused with having misappropriated the total sum of Rupees 2,200. With regard to the charges of falsification however Mr. S.K. Basu has argued that the addition of those charges was not only a misjoinder but a misjoinder of such a character as would vitiate the whole of the proceedings and render them not only irregular but illegal. If that were the effect of what was done, then of course the bounden duty of this Court would be to quash the proceedings and either to acquit the accused here and now, or to order a new trial. It is to be observed that Section 234(1), Criminal P.C. provides that

when a person is accused of more offences than one of the same kind committed within the space of 12 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.

7. Mr. S.K. Basu has suggested that it was by reason of that provision that the charges in the present case were limited to three, namely, one of misappropriation and two of falsification. Whether that was so or not is however immaterial for our present purposes. What we have to decide is whether in the circumstances of this case the two charges of falsification could properly be joined with the one charge of misappropriation. The answer to that question depends upon the question of whether the provisions of Section 235(1), Criminal P.C., materially affect this case. That sub-section provides as follows:

If, in one series of acts so 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.

8. It is clear from the terms of that section that a person may lawfully be tried for one offence of misappropriation 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. Mr. S.K. Basu has referred us to a number of decisions, but it is only necessary, I think, to refer to two of them. In the case of Emperor v. Sheo Saran Lal (1910) 32 All 219 the accused had been charged and tried at one and the same trial for three offences under Section 408, I.P.C., committed within a period of one year, and three offences of forgery under Section 467 of the Code, and he was convicted and sentenced in respect of all the six offences. Tudball, J. held that this was an illegality not covered by Section 537, Criminal P.C. It is to be observed however that in that case the facts were that Sheo Saran Lal was a clerk in a certain bank, and the case against him was that three different persons seeking to deposit money in the Bank, handed over certain sums to him, which he embezzled, and for which he gave receipts in his own handwriting, forging thereon the signature of the Manager of the Bank. The facts of that case were therefore quite different from the facts of the case which is now before us. Tudball, J., said in effect that the accused was tried in respect of six offences at one and the same trial, and although the offences might have been committed within the space of 12 months, the trial contravened the rule laid down in Section 233, even when read with Section 234. Then he says:

It has been argued however that Section 235, Clause (1) must be read with Section 234, and that the three offences mentioned in the latter section must be deemed to include all the offences committed in three similar transactions such as are contemplated by Section 235, Clause (1); in other words, if an accused person goes through three similar transactions within the period of 12 months, committing in each transaction the same series of offences, he can be tried at one and the same trial on account of all offences committed in the course of the three transactions, even if they total more than three. I am of opinion that this would be too great an extension of the exception mentioned in Section 234.

9. The other case on which Mr. S.K. Basu strongly relied was that of Kasi Viswanath v. Emperor (1907) 30 Mad 328, in which it was held by Benson and Wallis, JJ., that it was illegal to try a person on a charge which alleged three distinct acts of criminal breach of trust and three distinct acts of falsifying accounts. The learned Judges said:

Section 234, Criminal P.C., will not apply, as the offences of criminal breach of trust and falsification of accounts are not of the same kind, neither will Section 235 cover the case, as the several offences cannot be said to form part of the same transaction.

10. Then follows a passage in the judgment which seems to be no more than an obiter dictum. In the passage the learned Judges observed:

It is true that Section 222 provides for a charge being framed in respect of the gross sum misappropriated within 12 months from first to last and enacts that a charge so framed shall be deemed to be a charge of one offence within the meaning of Section 234, but it does not provide that the acts so charged shall be deemed to be one transaction within the meaning of Section 235.

11. That observation contains a proposition which if correct would operate decisively in favour of Mr. S.K. Basu's contention before us. The real question which we have to decide is whether contrary to the view taken in the Madras case it ought not to be held that if a person is charged within one offence, namely that of misappropriation of a gross sum as provided in Section 222(2) then that one offence ought to be deemed to have arisen out of one transaction so as to enable the prosecution to join with it in the same charge, a charge of some other offence constituted by the series of acts or some of the series of acts which connected together form that transaction. Mr. Basu has argued that although it is the case that by virtue of the provisions of Section 222(2) the individual items of defalcation may be lumped together to constitute one offence yet the sum of the items does not constitute one transaction, but remains a series of transactions each one of which is made up of a series of acts. If that were the right view of the matter it would necessarily follow, as Mr. Basu contended, that it would not be possible to combine into one transaction some seven items (as was done here), and then to pick out two of those items and say that for the purposes of Section 235 they were separate transactions, so that the charges of falsification could be made in connexion with each of them.

12. Mr. Bhattacharjya and Mr. Mukherjee on behalf of the prosecution have invited us to hold that the one offence referred to under Section 222(2) must be taken to constitute one transaction, and they have argued that the character of the transaction was this: that the accused made up his mind to rob his employer in a series of operations by means of which he secured for himself a total sum of Rs. 2,200 and so each series of operations were merely steps or stages in one comprehensive 'transaction.' It is not easy and indeed possible to give an exact definition to the word transaction, but I think, we may say that it 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.

13. In my opinion where a clerk or cashier sets out to rob his employer, having regard to the fact that Section 222(2) provides that he may be charged with having misappropriated the total of whatever sums he may have appropriated in course of any one year, it is not unreasonable to say that for the purposes of the section that the year's illicit operations can be regarded as one transaction. Mr. Bhattacharjya has contended that none of the authorities cited by Mr. S.K. Basu are directly in point for our present purposes and he has referred us to the decision of the Patna High Court in Michael John v. Emperor 1931 Pat 349, where it was held by Sir Courtney Terrell, C.J. and Adami, J. that:

It is quite lawful to charge a person under Section 408, I.P.C. 1860, with criminal breach of trust in respect of a lump sum of money made up of three different items and to link with that a series of charges of falsification of accounts under Section 477-A each of which charges under Section 477-A is united with one of the items of embezzlement under the charge under Section 408, provided the charges of embezzlement under Section 408 are linked together into one sum and that linking together also affects the charges of falsification.

14. Certain decisions of this Court were considered in the Patna case and either distinguished or not followed. The learned Chief Justice and Adami, J. followed the previous decision of the Patna High Court in Gajadhar Lal v. Emperor 1920 Pat 775, where it was held by Mullick, J. and Bucknill, J. that:

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, Criminal P.C., to try with this charge three charges for an offence under Section 477-A, I.P.C., if committed within the period of one year and forming part of the same transaction as the offence under Section 408.

15. We are of opinion that the decision of the Patna High Court in Michael John v. Emperor 1931 Pat 349 really covers the point with Which we are now concerned, and in our opinion that decision gives a reasonable and accurate interpretation of the relevant sections of the Criminal Procedure Code. It follows that this Rule must be discharged.

M.C. Ghose, J.

16. I agree with my learned brother that this Rule should be discharged. The petitioner was manager and cashier of a certain firm and as such he was entrusted with the cheque books of the firm, and he proceeded to rob his employer by writing cheques for certain sums and writing smaller sums in the counter-foils and in the accounts, and dishonestly misappropriating the balance. It is said that he has altogether robbed his employer by no less than Rs. 24,000. The charge was made with respect to a Sum of Rs. 2,200 which he is said to have misappropriated by means of seven cheques in course of one year. The seven cheques and counterfoils were proved in Court. In respect of two of those cheques further charges were made of falsification of accounts under Section 477-A, I.P.C. It is urged by Mr. Basu that the trial of the petitioner as regards the charge of criminal breach of trust and the two charges of falsification of accounts as framed in the case was illegal and without jurisdiction, and as such the conviction and sentence are bad in law. Various reported cases were cited by Mr. Basu. It is worthy of note that in all those cases there were two or more charges of criminal breach of trust against the accused person, and in addition to those charges of criminal breach of trust there were further charges of falsification of accounts, and it was held in those reported cases that the trial of two or more charges of criminal breach of trust with two or more charges of falsification of accounts was illegal.

17. In the present case there was only one charge of criminal breach of trust in respect of a sum of Rs. 2,200. It is true that the sum of Rs. 2,200 was made up of seven different items, as proved in the case. But Section 222(2), Criminal P.C. provides:

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.

18. The present charge of criminal breach of trust must therefore be held to be a charge of one offence of criminal breach of trust, and the two charges of falsification of accounts were parts of two items of the charge of breach of trust, those falsifications having been made in order to commit the said misappropriation. One charge in respect of Ex. 8 which was a cheque cashed by the accused, was that it was for a sum of Rs. 1,300, but he put in the counterfoil and in the accounts a sum of Rs. 600 thereby misappropriating Rs. 700, and the other charge was in respect of Ex. 9 whereby he withdrew a sum of Rs. 600 and credited to the counterfoil and to the accounts Rs. 200 thereby misappropriating Rs. 400. Section 233, Criminal P.C., lays down that for every distinct offence there shall be a separate charge. The basis of the rule is that an accused person should not be prejudiced by being accused of several offences at once. In this particular case it cannot be said that the accused was in any manner prejudiced. He was charged with one charge of criminal breach of trust and in respect of a portion of the money, it was shown that he falsified these accounts in order to commit the said misappropriation. There can be no doubt that an act of criminal breach of trust forms the same transaction together with an act of falsification of accounts which is made in order to facilitate the breach of trust, and the two charges of criminal breach of trust and falsification of accounts may be tried together under Section 235, Criminal P.C. In this case in respect of two sums of money charges of falsification were made. In my opinion there was no illegality in the trial of the two charges in one trial along with the charge of criminal breach of trust.


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