1. The present petitioner Kali Kumar Das was tried jointly with one Rahimuddi on the following charges first of all that they conspired to commit criminal breach of trust with regard to a certain sum of money about Rs. 2,000 odd and thereby committed an offence punishable under Section 408 read with Section 120 B; and secondly, that they misappropriated a sum of Rs. 2,00 odd and so committed an offence under Section 403, Indian Penal Code, Against the present petitioner there was also a further charge that he committed criminal breach of trust as a servant with regard to the same sum of money Rs. 2,000 odd. These charges were drawn up on 30th July, 1927. On 13th September, 1927, the Magistrate added what he has described as alternative charges, namely, three charges against the present petitioner of falsifying the accounts. Each of these charges dealt with one specific item in the account and also against the other accused Rihimuddi of abetting the same falsification of accounts.
2. It is unnecessary to state in detail the facts of the case at length. They are briefly these: The petitioner was a servant of the complainant Nawab Ali who is a jute broker at Poran Bazaar Chandpore. Rahimuddi was a customer. The case is that by means of falsification of certain books of account they defrauded or attempted to defraud the complainant of the sum of Rs. 2,000 odd.
3. The first argument that has been put forward by the petitioner is that Section 239, Criminal Procedure Code, does not contemplate what are described as alternative charges being tried together with the original charges I admit I do not see the force of this contention. Section 239(d) provides that persons accused of different offences committed in the course of the same transaction may be tried together. It is sufficient that the offences were committed in the course of the same transaction. Whether the charge is an alternative one as provided by Section 236 or is a distinct charge is obviously immaterial.
4. The learned Vakil has next argued that the two persons cannot be jointly tried on three substantive charges and one of them Rahimuddi of abetting these three offences. As far as I can see this is also covered by sub-cl.(d), Section 239. No doubt Sub-clause (c) does not cover this case, but Sub-clause (d) most certainly does. Sub-clause (d) contemplates all the offences committed by these persons, whether substantive offences or abetment of those offences, being tried together provided they were committed by these persons in the course of the same transaction.
5. Then the learned Vakil has argued that a. 222, Sub-clause (2) has no application to the present case and that hence the accused was really tried on some 10 or 20 charges of falsification. He contends that Section 234, Criminal Procedure Code, would be a bar to this procedure. But Section 234 refers to offences of the same kind though in other respects entirely distinct from each other and not necessarily forming part of the same transaction. The section which governs the case, however, is Section 235, Criminal Procedure Code, which provides that any number of offences may be tried together if they form part of the same transaction. That is equally clear from the wording of Section 239(d) which clearly to my mind contemplates that all offences committed in the course of the same transaction may be tried together and that the accused persons concerned in this offence may be jointly tried though they are concerned in different offences. The criterion as to whether they can or cannot be tried together is whether these offences were committed by them in the course of the same transaction, It is no doubt always open to the Court if it appears that the accused persons would be embarrassed by such a joint trial to try the accused persons or even the charges separately. Section 239 is only an enabling section. It does not, however, appear that the petitioner ever suggested that he would be embarrassed by a joint trial with his co-accused Rahimuddi or ever asked for a separate trial.
6. It was then contended that Section 234 is not applicable when several persons were tried jointly under Section 239, and we were referred to the case of Budhai Sheik v. Emperor 33 C. 292 : 10 C.W.N. 32 : 3 Cr. L.J. 126. I admit that I do not see the applicability of Section 234 to the present case. This is not a question of different offences of the same kind though otherwise non-connected with each other committed within the space of one year. This is a case of number of offences so connected as to form one transaction which case is dealt with under Section 235, and also under Section 239(d).
7. The only question really to be decided is whether all the offences of which these persons have been tried were committed in the course of the same transaction. As contended by the learned Vakil for the petitioner and also by the learned Vakil who appears for the complainant the legality of the joint trial depends upon the accusation and not on the result of the trial: see the case of Abdul Salim v. Emperor 69 Ind. Cas. 145 : 49 C.573 : 38 C.L.J. 279 : 26 C.W.N. 680 : A.I.R. 1922 Cal 107 : 23 Cr. L.J. 657. The case for the prosecution in this case was that between certain dates the two accused conspired together to defraud the complainant of a sum of money roughly Rs. 2,000. All the various means that were used to carry out this conspiracy, namely, falsification of accounts and misappropriating various sums during the period ail formed part of the same transaction which was a conspiracy to defraud the complainant. All the offences with which the present petitioner and Rahimuddi who was tried jointly with him had been charged and convicted were committed in the course of this one transaction. The rule, therefore, stands discharged. The petitioner, if on bail, must surrender to serve out the remaining portion of the sentence.
8. I agree.