1. This was a rule calling upon the District Magistrate to show cause why the conviction of and sentence on the petitioner Kali Das Chakraverty should not be set aside or why re-trial should not be ordered or why the sentence should not be reduced or otherwise modified on the ground that there had been misjoinder of charges and that the petitioner is, if guilty, only liable to be punished for a single offence.
2. The facts deposed to and found by the lower Courts are that the petitioner being a ticket collector on the East Indian Railway at Shedraphuli was seen to hand two third class tickets to a man named Aswini Kumar Seal just after the arrival of a train from Haripal to Sheoraphuli. These tickets had been used and collected from passengers by the petitioner. A travelling Inspector who was deputed to look out for frauds in connection with used tickets, which had been frequent of late, followed Aswini Kumar Seal and returned with him in the same train to Haripal. There he saw and heard Aswini claim a refund on the two tickets which he said had been purchased by his aunt in the morning and had not been used. To make the story more plausible he had left the station with the other passengers and had returned again after a few minutes. On arrest, he made a clean breast of the matter and stated that he had been employed by his friend the petitioner to carry out this fraud.
3. He was taken back to Sheoraphuli and it is said that the present petitioner also admitted his guilt and begged for mercy when confronted with Aswini. He has since retracted his confession and pleads that the station authorities were persons in authority within the meaning of the Evidence Act and their presence and pressure induced him to confess. This may be conceded. On these facts, the petitioner was charged with criminal breach of trust under Section 408 and with abetment of cheating under Section 420 read with Section 109, and tried at the same trial with Aswini Kumar Seal who was charged with attempt at cheating under Section 420 read with Section 511.
4. We have heard Mr. Sinha showing cause against the rule and the learned Vakil in support and we do not think that this case falls within the rule laid down in Subrahmania Ayyar v. Emperor 28 I.A. 257 : 25 M. 61 : 5 C.W.N. 866 : 3 Bom. L.R. 540. The case of Parmeshar Lal v. Emperor 13 C.W.N. 1089 : 4 Ind. Cas. 28 : 10 Cr. L.J. 476, which has been cited to us as the case most nearly approaching this one in the books, is clearly distinguishable. There the accused cashed the cheques and not only completed the breach of trust but proceeded to cheat his masters by a wholly independent act, not necessarily connected with the embezzlement of the money. Had he conspired with the Railway Clerk, handed over the cheques drawn by his masters to him, and induced him to make over the goods to him and the balance of the money, the case could have borne some resemblance to this one and there might have been no misjoinder.
5. Here the transaction is clearly one and falls within the purview of Section 239. The two clauses of Section 239 are not mutually exclusive. A. induces B. to cheat. B. attempts to cheat in consequence. A. and B. may clearly be tried together for abetment of, and attempt at cheating respectively.
6. If, in the course of the same transaction, A. commits the separate offence of criminal breach of trust, in furtherance of the conspiracy to cheat, A. may clearly be charged with that offence at the same trial.
7. The only other question is whether, having regard to the necessary hypothesis that the offences are committed in the same transaction, separate sentences can be passed against the petitioners on each charge.
8. It appears to us that they can. In this case it is true that the cheating could not be carried out without the prior misappropriation of the tickets but the conversion of the misappropriated tickets might have been made in some other way than by inducing the second accused to commit cheating. The eventual method of conversion is not the misappropriation, it is only evidence of the way the misappropriation was rendered successful. Having elected to make the conversion in this way the petitioner's conduct becomes part of the same transaction but he commits two different offences within the meaning of Section 239, and he can be separately punished for those offences.
9. The most that can be said in a case of this kind, where the transaction is continuing with the dishonest purpose which originally made it criminal, is that the Court exercises a wise discretion in making the sentences run concurrently, as was done in this case. We are fortified in this view by the fact that illustrations (e) and (h) of Section 454 of the old Code were omitted in the present Code and its immediate predecessor after the decision in Noujan's case 7 M.H.C.R. 375; Weir 897, where it was held that 'section 454, (now 235), taken with its illustrations forbids two punishments for an offence so compounded that one substantive offence is the aim of the other and evidentiary matter of the intent necessary to constitute that other.'
10. That was a case of abducting a child with the intent of dishonestly taking its ornaments under Section 369, Indian Penal Code, and would raise a similar question to the disputed point whether separate punishments can be inflicted for house-breaking with intent to commit theft and for theft in a dwelling house consequent upon such house-breaking That, however, is also a different question to the one which arises in this case and is governed by Section 71, Indian Penal Code. As the sentences have been made to run concurrently we need not discuss the point further, especially as the whole amount of punishment awarded could have been given under either section. The rule is accordingly discharged and the petitioner will surrender to his bail and serve out the rest of his sentence.