S.K. Ghose, J.
1. The petitioner in this rule has been convicted under Section 477-A, I. P. C, and sentenced to undergo rigorous imprisonment for one year. The case for the prosecution which has resulted in the aforesaid conviction is briefly this: The petitioner was Head Clerk under a Permanent Way 'Inspector, B. Edwards, in the East Indian Railway at Howrah. One Panchanon Dutt was a pay clerk. Two persons Bhunoo and Punit were employed as office peons under the petitioner. The prosecution case is that between the dates 16th March 1928 and 15th February 1929 these persons were concerned in making payments to coolies employed on the railway. In token of receipt thumb-impressions of the payees were taken on pay sheets during the ten months of this period. According to the evidence, the duty of the petitioner as Head Clerk was to calculate wages and to enter the amounts on the pay sheets, while the pay clerk made the payments and certificates of correctness were given at the bottom of the pay-sheets over the signature of the Permanent 'Way Inspector. According to the prosecution the petitioner took the thumb-impressions of the payees. What he did was that in a great many cases he took the thumb-impressions of Bhunoo and Punit and also of one Sudhun now deceased against the names of other persons purporting to be those of coolies. These impressions were therefore false and it is alleged that thereby payments were taken in the name of fictitious persons or wrong persons. On these allegations Panchanon was charged under Section 408, I. P. C for having committed criminal breach of trust in respect of a total sum of Rs. 1,652 odd. The petitioner was charged under Sections 408 and 114, I. P. C, and also charged with con-spiracy under Section 120-B, I.P.C. He was further charged under Section 477-A, I.P.C. for having made false entries in the pay-sheets in question. Panohanon was acquitted of all the charges. The petitioner has been convicted, as 1 have said before, only on the charge under Section 477-A. The man B. Edwards is said to be in Australia. Bhunco and Punit were also sent up for trial; but they pleaded guilty at an early stage of the case and were convicted on that plea and were subsequently examined as witnesses.
2. The defence of the petitioner in this case was that he had no fraudulent intent. It was not disputed that in certain cases the thumb-impressions were not of the persons against whom they appeared. But the defence alleged that, so far as the petitioner was concerned, he was under the impression that the payments were being taken on behalf of proper persons.
3. The first ground on which this rule was issued is that the manner in which the charge under Section 477-A has been framed is in contravention of Section 234, Criminal P.C. The charge runs thus:
First you at Howrah and elsewhere between 16th March 1928 and 15th February 1929, being servants of the E I. Ry. wilfully and with intent to defraud made or abetted the making of false entries in the pay-sheets of P. W. gang-men by affixing false thumb-impressions, entering bogus names and giving raise certificates therein and thereby committed an offence punishable under Section 477-A, I.P.C. and within my cognizance.
4. It is contended by Mr. Mukherjee appearing against the rule that the charge against the accused is properly one for falsification of accounts under the first part of Section 477-A. But the charge in its terms is in respect of making false entries in the pay-sheets which are about 10 in number spread over a period of as many months. In the case of Prafulla Chandra Kharghoria v. Emperor A.I.R 1981 Cal. 8 the charge no doubt related to a number of pay-sheets, hut they were all brought together under one exhibit number and the charge expressly alleged that the person charged falsified certain papers and accounts. In that case Suhrawardy, J., distinguished the case of Krishna Lal Mitra v. Emperor : AIR1927Cal946 . in which in the charge framed there were six distinct and separate charges of falsification of six separate and distinct documents, namely, three pay bills and three monthly cash accounts. In the present lease the charge is obviously with reference to distinct pay-sheets which are more than three in number and, with reference to each sheet, the offence of making false entries is a distinct offence, and therefore there is a distinct violation 'of Section 234, Criminal P.C. There is no doubt that the accused has been prejudiced by this defect in the charge, because the prosecution came to Court with an allegation that there were 200 false thumb-impresssions, but in only two of these cases the persons in respect of whom the payments are alleged to have been made were produced. The present trial is therefore vitiated by the defect in the charge and the only question is whether it is necessary to direct a retrial.
5. The answer to that question depends on the answer to the other ground on which this rule was issued. That ground runs thus:
For that there bring no legal evidence to connect the accused with any intent to defraud within the meaning of Section 477-A and in the absence of any finding that the names of payees in the pay-sheets are not genuine and there being no evidence to show that the wages did not reach the payees, the conviction of the accused under Section 477-A. I.P.C., is erroneous and unsustainable.
6. Strictly speaking, this ground of the rule has been made out because there is no finding that the names of the payees in the pay-sheets are not genuine and there is really no evidence to show that the wages did not reach the claimants. The Courts below have relied on the evidence of two men, namely, Anadi Chattri prosecution witness 8 and Khun Khun Kori, prosecution witness, 10. These two are labourers who worked on certain dates. The first man had earned 15 annas and the other 8 annas, but neither of them cared to come to take payment. It appears that as against their names there is the thumb-impression of Punit. This however does not touch the question as to whether the present petitioner had any fraudulent intent. As to that the Courts below have relied on the evidence of Punit and Bhunoo. That evidence is to the effect that the petitioner compelled them to give their finger impression on the pay-sheets after the departure of the sirdars and coolies. But the position with regard to these two witnesses is that they were co-accused at the beginning of the trial and have since been convicted an 1 therefore they are accomplices and their evidence cannot he accepted without material corroboration. The trial Court, discarded their evidence finding that there was no material corroboration as regards Panehanon and, as regards the present petitioner, the trial Court accepted the evidence only as to the charge under B. 477 A. But as to this also the evidence is open to the same objection.
7. It may be pointed out that the evidence of these two men is inconsistent with their plea of guilt on which they were convicted because, if this evidence is accepted, they obviously had not committed any of'fenc3. The learned Magistrate in his explanation to this Court points out that the petitioner took the thumb impressions of these men who were his office peons against several other names and at least two coolies had come forward to prove that they did not get payments. He also points out tint the impressions of the right and the left thumbs, as also of different fingers were taken. But these circumstances may also be consistent with the absence of fraudulent intent on the part of the present petitioner. Mr. Mukhorjoe appearing against the rule has pointed out that no chutkas were attached to the pay-sheets in token of the fact that the actual payees had permission from the proper persons. But as to this the evidence is not clear that it was the business of the petitioner to affix chutkas. On the other hand our attention has been drawn to at least one case of genuine payment without chutka to a third party. Borne stress was also laid on the evidence that Bhanu and Punit were discharged without their gratuity bills being paid. This may be consistent with their own guilt, because they ran away without receiving payment. But it does not necessarily follow that the present petitioner was responsible for this. It comes to this: that as regards the evidence of Bhanu and Punit, there is no material corroboration and that being so, we do not think we should order a retrial in this case. We accordingly make the rule absolute and direct that the petitioner be discharged from his hailbond, acquitted of the offence under Section 477-A, 1. P.C., and set at liberty.
8. I agree.