1. This rule wag issued upon the Chief Presidency Magistrate and upon the complainant opposite party to show cause why the conviction and the sentence under Section 408, Penal Code, passed upon the petitioner should not be set aside. The case for the prosecution was as follows : The present petitioner was the chief shipping clerk of the complainant company. Under him were four jetty Sarkars. These jetty Sarkars were employed in clearing goods at the port. The petitioner used to advance money to the jetty Sarkars to enable them to clear the goods. For this purpose he used to draw money from time to time from the cashier of the complainant company on slips signed by him and countersigned by the Chief Accountant. At the end of each day, the jetty Sarkars would produce before the petitioner, the Port Commissioners' receipts for the money expended by them and slips containing an account of the day's expenditure. The jetty Sarkars used to enter their expenditure in a book known as Landing Register. At the end of each day, they made over to the petitioner the slips and the Port Commissioners' receipts, Landing Register and the balance of the money advanced to them. The accused prepared vouchers and at the end of each month submitted to the Chief Accountant the Port Commissioners' receipts and the vouchers prepared and had his accounts passed. The case for the prosecution is that in the month of December 1940 on different occasions, the details of which will be given later, the jetty Sarkars expended certain sums of money and obtained the Port Commissioners' receipts for that expenditure. They made over the receipts to the petitioner. The petitioner without interfering in any way with the statement in words of the amounts in the receipts added the figure 1 before the statement in figures of the amount in the receipts and then in his accounts showed the amount expended as the amount so altered by him. It is further alleged that during the month of December the sum of Rs. 8067 was drawn by the petitioner from the cashier for the purpose of expenditure on behalf of the firm and that out of this sum he misappropriated the sum of Rs. 400 during the month. The actual details of the alleged forgeries are as follows: On 18th December 1940 the amount actually spent by the jetty Sarkar and the amount for which Port Commissioner's receipt was obtained was Rupees '23-5-6. The accused forged this receipt by adding the figure 1 in front of Rs. 23-5-6 making the total in figure read Es. 123-5-6. On 20th December 1940 the amount spent by the jetty Sarkar was Rupees 52-6-9 and the receipt obtained from the Port Commissioners was a receipt for this amount. The accused forged this receipt by making the amount in figures read Rupees 152-6-9. On 28th December 1940 the amount spent was Es. 35. The accused forged the receipt in the same manner as in other cases making the amount in figures in the receipts read Rs. 135.
2. On these allegations the following charges were drawn up against the accused : (1) That you, on or about the 18th, 20th and 28th days respectively of December 1940 at Calcutta forged three documents to wit, three Port Commissioners' receipts of those dates intending that they should be used for the purpose of cheating and thereby committed three offences punishable under Section 468, Penal Code, and within my cognizance. (2) That you, between 2nd December 1940 to 30th December 1940 being a servant in the employment of Messrs. Babcock Wilcox Ltd., and in such capacity entrusted with certain property, to wit, Es. 8067 committed criminal breach of trust with respect to Rs. 400 out of the said property entrusted to you and thereby committed an offence punishable under Section 408, Penal Code, and within my cognizance.'
3. The petitioner was tried by a Presidency Magistrate of Calcutta. The learned Presidency Magistrate found that there was no sufficient evidence to prove that it was the petitioner who committed the forgery and he accordingly acquitted the petitioner of the charges under Section 468, Penal Code. He found the petitioner guilty on the charge under Section 408, Penal Code, and sentenced him under that section to undergo five months rigorous imprisonment and to pay a fine of Rs. 100 and in default to undergo further rigorous imprisonment of one month. The amount of fine, if realised, was to be paid to the complainant company as compensation. This rule was issued on two grounds only. The chief ground is as follows:-'For that the trial has been vitiated by misjoinder of charges. The conviction and sentences are accordingly illegal.'
4. It was conceded during the argument before us that the first of the charges set out above really amounts to three separate charges and must be treated for our present purposes as though three separate charges under Section 468, Penal Code, had been framed. It is clear that the joinder of three charges under Section 468 is permitted by Section 234, Criminal P.C., if no other charges are also joined with those charges. The question before us is whether the joinder of three separate charges under Section 468, Penal Code, with the charge under Section 408, Penal Code, is sanctioned by Section 235, Criminal P.C. Before dealing with this question, it is necessary to refer to an argument which was placed before us regarding the charges under Section 468, Penal Code. It was urged on behalf of the Crown that the charges under Section 468, Penal Code, were mistaken, that in fact the forgery was not committed for the purpose of cheating but it was committed for the purpose of facilitating the commission of the offence under Section 408, Penal Code, or covering up that offence after it had been committed. We were asked to treat the charges as charges which were understood by the parties to be charges not of forgery with intent to cheat but of forgery to facilitate or cover up the offence of breach of trust by a servant. In our opinion, we are not entitled to accept this view. It is not merely a case in which the section has been wrongly entered in the charge but the whole description of the offence given in the charge is a description of an offence under Section 468, Penal Code. The allegations are that on three separate dates three separate documents were forged with the intention that they should be used for the purpose of cheating. By no stretch of imagination can it be held that these are proper charges in a case either of falsification of accounts or of forgery to cover up a case of criminal breach of trust. In our opinion, we must take the charges as they were framed and consider the legality of trying in one trial a person on three charges under Section 468 and one charge under Section 408, Penal Code. It is at once obvious that the offence of forging a document for the purpose of cheating, that is to say, forging a document with the intention that the document so forged shall be used for the purpose of deceiving somebody and thereby inducing that person to part with property cannot be part of the same transaction as the dishonest misappropriation of property entrusted to the alleged forger as a servant. On the face of it therefore, the joinder of three charges under Section 468 with a charge under Section 408, Penal Code, cannot come within the provisions of Section 235, Criminal P.C. It may be noted that the Crown does not urge that the cheating contemplated in Section 468, Penal Code, consisted in inducing anybody to do or omit to do some thing which he would not do or omit if he were not so deceived; i.e., cheating as contemplated by the second half of the definition of Section 415, Penal Code. Since the joinder of charges in this ease is not sanctioned by Section 235, Criminal P.C.- and it is not suggested that it was sanctioned by any other section of that Code-the joinder is contrary to the direct provisions of Section 233 of that Code.
5. In the circumstances we must hold that the trial was vitiated by misjoinder of charges and consequently the conviction and the sentence cannot be upheld. The rule is accordingly made absolute, the conviction and the sentence passed upon the petitioner are set aside and the case is remanded to the lower Court for disposal according to law on charges properly framed. The re-trial will be held by some Magistrate other than the Magistrate against whose order this rule was issued. The petitioner will be released on bail, pending the re-trial of his case before the lower Court, to the satisfaction of that Court.
5. I agree.