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Kailash Chandra Pal and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal367,49Ind.Cas.106
AppellantKailash Chandra Pal and anr.
RespondentEmperor
Cases ReferredSubrahmania Ayyar v. King
Excerpt:
criminal procedure code (act v of 1898), sections 233, 234, 235, 239 - joinder of charges--conspiracy--same, transaction--offences, whether can, he tried together. - .....4 ind. cas. 16 : 13 c.w.n. 1067 : 10 cr.l.j. 469, also the well-known case of subrahmania ayyar v. king-emperor 25 m. 61 : 11 m.l.j. 233 : 3 bom.l.r. 540 : 28 i.a. 257 : 5 c.w.n. 866 : 2 weir 271 : 8 sar.p.c.j. 160 (p.c.) have been cited. but the five cases first mentioned have been sufficiently distinguished in the decision in ram subhag singh v. emperor 30 ind. cas. 465 : 19 c.w.n. 972 : 16 cr.l.j. 641 and the case of subrahmania ayyar v. king-emperor 25 m. 61 : 11 m.l.j. 233 : 3 bom.l.r. 540 : 28 i.a. 257 : 5 c.w.n. 866 : 2 weir 271 : 8 sar. p.c.j. 160 (p.c.) is distinguishable, because in that case section 235 of the code was not applicable.7. now there can be no question that in-the present case the charges have not been artistically drawn up, and that there appears to be a slight.....
Judgment:

1. In this case the two petitioners Koylash Chandra Pal and Rash Behari Dhar have been convicted of cheating and sentenced under Section 420, Indian Penal Code, each to undergo six months' rigorous, imprisonment,

2. The facts found are that in February 1916 one Safar Ali and eleven others took from Government on a joint bond a sum of Rs. 300 by way of an agricultural loan. At the same time one Sibram and ten others similarly borrowed a sum of Rs. 265. In each case the bond was repayable by two instalments, the 1st instalment becoming due 1 1/2 years after date. On the 23rd of January 1918, a Sub-Deputy Collector went to realize the 1st instalment. He allowed the petitioners, who are spoken of as 'village touts', to interfere in the matter. The result was that while from each borrower, including interest' for 1 1/2 years, the sum due was Rs. 14-3-5, the two petitioners acting in concert induced the borrowers to believe that the sum payable by each was Rs. 15 8.0 and realized this sum from 22 of the 23. They thus collected in the aggregate on the 1st bond Rs. 170-8-0, on the 2nd Rs. 164-5 0, and paid to the Sub Deputy Collector on the 1st Rs. 156-3-9, on the 2nd Rs. 151, so misappropriating in all Rs. 27-9-3. The fraud was discovered when on a later date the last of the 12 executants of the 1st bond, one Osman Ali, made his payment separately and was necessarily required by the Revenue Officer to pay only the correct amount.

3. These facts have been established by unimpeachable evidence which both Courts below have believed.

4. The contention before us in this Rule then is that the trial has been vitiated by mis-joinder of charges.

5. The charges as drawn up are in these term': First, that you, on or about the 23rd of Jane, at Gobindgunj cheated Safarali and ten others by dishonestly inducing them to deliver to you the, sum of Rs. 15-3 3 and thereby.... Secondly, that you on or about the- 23rd of June at Gobindgunj cheated Shib Ram and ten others by dishonestly inducing them to deliver to you Rs. 11.12-0....'

6. It is urged that charges so framed contravene the provisions of Sections 233 and 234 of the Criminal Procedure Code, and in support of this conention the decisions in Tilakdhari D s v. Emperor 6 C.L.J. 757 : 6 Cr.L.J. 442; Asgar Ali Biswas v. Emperor 20 Ind. Cas. 609 : 40 C. 846 : 17 C.W.N. 827 : 14 Cr. L.J. 449; Gul Mahomed Sircar v. Cheharu Mandal 10 C.W.N. 53 : 3 Cr.L.J. 141; Johan Subarna v. King- Emperor) 2 C.L.J. 618 : 10 C.W.N. 520 : 3 Cr.L.J. 111 and Srish Chandra Mukerjee v. Emperor 4 Ind. Cas. 16 : 13 C.W.N. 1067 : 10 Cr.L.J. 469, also the well-known case of Subrahmania Ayyar v. King-Emperor 25 M. 61 : 11 M.L.J. 233 : 3 Bom.L.R. 540 : 28 I.A. 257 : 5 C.W.N. 866 : 2 Weir 271 : 8 Sar.P.C.J. 160 (P.C.) have been cited. But the five cases first mentioned have been sufficiently distinguished in the decision in Ram Subhag Singh v. Emperor 30 Ind. Cas. 465 : 19 C.W.N. 972 : 16 Cr.L.J. 641 and the case of Subrahmania Ayyar v. King-Emperor 25 M. 61 : 11 M.L.J. 233 : 3 Bom.L.R. 540 : 28 I.A. 257 : 5 C.W.N. 866 : 2 Weir 271 : 8 Sar. P.C.J. 160 (P.C.) is distinguishable, because in that case Section 235 of the Code was not applicable.

7. Now there can be no question that in-the present case the charges have not been artistically drawn up, and that there appears to be a slight inaccuracy in the amounts set out. It was not the case here that the two petitioners deceived only the headman in each and through him collected the aggregate sum represented to be due. They made separate representation to each and deceived each as to the sum due from him. There should, therefore, have been 22 charges in respect of the difference (Rs. 1-5-7) in each. case and all the 22 payers should have been ramed and examined. But as the misrepresentation was in each case the same, and the offences were all committed at one and the same time and place and in pursuance of the same conspiracy, the offences were all committed in the course of the same transaction. Under the provisions of Sections 235 and 239 the two petitioners were triable together in respect of all the said offences.

8. We may further observe that on the facts of the, present case, in respect of the aggregate sum or sums misappropriated one or at most two charges in respect of the said misappropriation would have sufficed.

9. The petitioners fully understood the case they had to meet. It has been established against them by unimpeachable evidence. The defects in the charge have occasioned no failure of justice.

10. We, therefore, discharge the Rule and direct that the petitioners do now surrender to their bail and undergo the remainder of their sentences.


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