Wassoodew, J.:— The applicant Baburao Tatyarao was convicted upon a joint trial with one Ambalal Nathalal Patel by the Resident Magistrate of Godhra for offences of criminal breach of trust and wilful destruction of accounts relating to Shantiniwas Housing Co-operative Society, under Ss. 408 and 477-A, I.P.C, respectively, and was sentenced to suffer eighteen months' rigorous imprisonment for each of the two offences with a fine of Rs. 200. The accused Baburao as well as Ambalal, who was also convicted along with him, appealed to the Sessions Judge. In that appeal Baburao was acquitted on the charge of destruction of accounts and convicted of criminal breach of trust. The learned Sessions Judge reduced the substantive sentence of imprisonment to four months and confirmed the fine.
2. The applicant Baburao was employed at the material time as a clerk of the Shantiniwas Society and was working under the Honorary Secretary of that Society, Ambalal, who was the co-accused at the trial. As a clerk, it seems from the record, Baburao's principal duty was to write up the accounts, and, with the approval of the Honorary Secretary, recover and keep the money of the Society in his hands. Some time prior to this prosecution the account books of the Society were taken away by the applicant to his house on the pretext of writing a part thereof. Those books were subsequently reported to have been stolen from the house. Portions of them were destroyed and some pages were recovered in a mutilated condition during the investigation into that loss. The applicant therefore rewrote some of them from the material available. In the beginning of March 1935, the accounts of the Society were subjected to audit by the Government auditor and the latter found on 22nd March 1935, that there ought to be a cash balance on hand of Rs. 3,181 or thereabouts. That cash balance was not available in the Society's office and the Honorary Secretary as well as the clerk were called upon to produce the same. The auditor remarked at the same time that as a rule in that Society the cash balance exceeded the minimum prescribed under the rules. The Honorary Secretary explained that the cash balance remained with the clerk, the present applicant, and he promised to see that it was produced in a couple of days. That was on 22nd March 1935. On 23rd March 1935 Rs. 1,851 were remitted into the bank by the applicant and the balance oath of the cash in hand, viz. Rupees 1,629-12-2, was produced before the special auditor on 25th March 1935. On account of the fact that the cash balance was not available for checking on 22nd March 1935, and the fact that the accused required time to make good that sum, the auditor reported that it was a case of conjoint criminal breach of trust by the Honorary Secretary and the clerk whereupon both were prosecuted and convicted as stated above.
3. The questions of law urged before us were mainly whether the joinder of charges against two persons of criminal breach of trust in respect of a single sum of money does not offend against the provisions of Sections 221 and 222 of the Cr PC, and secondly, whether the charge as formulated against the applicant is vague and therefore did not give him sufficient notice of the matter with which he was charged. I Incidentally the learned counsel also argued that inasmuch as the original complaint disclosed an offence of criminal breach of trust only, the addition in the charge of an offence under S. 477-A was beyond the jurisdiction of the Magistrate, and that the latter having taken cognizance of that offence of his own accord committed an illegality in that he omitted to inform the accused that he was entitled to have the case tried by another Court under the provisions of Section 191 of the Cr PC.
4. I shall briefly deal with the last point first. It is clear upon the record that the initial proceedings were taken upon a complaint for the offence of criminal breach of trust punishable under S. 408, I.P.C That complaint gave jurisdiction to the Magistrate under section 190(1)(a) of the Cr PC. It was essentially a warrant case and was tried as such by the Magistrate. The procedure in regard to such trials is governed by the provisions of Ch. 21 of the Code. According to the provisions of S. 254, when the prosecution evidence has been taken and the accused examined and the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under that chapter, which such Magistrate is competent to try, he has to frame a charge in writing against the accused. It seems from the notes of the Magistrate that when objection to the framing of the charge under S. 477-A was taken before him, he defended his action by relying on the provisions of Cl. (c) of sub-s. (1), Section 190 of the Cr PC. The expression “taking cognizance of an offence” in S. 190 of the Code deals with a matter of a purely technical nature. Cognizance is usually taken upon complaint when process is issued, but no restricted interpretation can be given to that expression in the consideration of the character of the action of a Magistrate at any particular stage of the proceeding before him: see 53 Cal 350 (1). But from the terms of S. 190 it is clear that cognizance is taken upon issue of process before evidence is recorded. It is the complaint therefore which gives jurisdiction to the Magistrate to try the offence. Consequently when under the provisions of S. 254 the Magistrate thinks, upon the evidence heard, that a charge different from the one indicated by the complaint should be framed, he does not take cognizance under S. 190(1)(c); for the power to frame a charge in a warrant case of the offence disclosed is inherent in the jurisdiction assumed by the Magistrate upon the original complaint. The point is really covered by authority and has been discussed by Dhavle, J. in 12 Pat 758 (2). It seems to me that the objection to the procedure of the Magistrate cannot therefore be upheld. Turning then to the question of misjoinder of charges and trial, it is essential to remember that what gives jurisdiction to the Magistrate to proceed with a joint trial is the manner in which the case has been adumbrated in the complaint and put before the Court by the prosecution witnesses. Here was a case of an Honorary Secretary of a Co-operative Society who was primarily responsible for the custody and safety of the cash of the society. He had allowed his clerk to be in possession of the money. The prosecution alleged that they had jointly misappropriated the Society's money inasmuch as it was not forthcoming when the auditor inspected the accounts and found that the sum in question ought to have been in the hands of the Honorary Secretary. If the underlying suggestion in the complaint was community of design and objective, it seems to me fairly obvious that in respect of the action of the persons who were admittedly in charge of the funds (I say “admittedly” advisedly because I notice from para. 2 of the applicant's statement in his petition that the applicant and Ambalal were in charge of the funds and accounts of the Society) the procedure of the learned Magistrate in treating the alleged acts as forming parts of the same transaction within the meaning of Section 239 of the Cr PC, was prima facie justified. In 30 Bom 49 (3) it was held that where the accused persons were jointly in charge of trust funds, so that one could not act without the connivance of the other, and each of them misappropriated sums of money from the trust funds to his own use and were acting in concert, Section 239 of the Cr PC, admitted of their joint trial. According to the observations of Batty, J., it is the tenor of the accusation and not the wording of the charge that must be considered as the test for determining the question of joinder of charges and trial. We were referred in the course of argument to the cases in 16 CWN 600 (4) and 8 Rang 632 (5), as authorities for the proposition that there can be no joint charge of one offence against two or more persons for criminal misappropriation in respect of the same or part of the same sum of money. In the former case the head note is:
Where in a case more than one person were jointly charged with the offence of criminal breach of trust under S. 408, I.P.C, with respect to a sum of money:
Held: that there was a misjoinder of charges in the case. The wording of Section 222 of the Cr PC, refers to a single accused; and it must be so because it is Impossible to hold that two persons can be guilty of misappropriation of the same parcel of the money. S. 239 therefore has no application to such a case.
5. It was observed in the judgment that (p. 602):
One may be guilty of misappropriating a portion of it or one may be guilty of abetting the other. The misappropriation of the actual money must be the act of a single person, and therefore S. 239 has no application, because more than one person could not be charged with this particular offence of misappropriation of a single sum.
6. With extreme respect it is difficult to reconcile that proposition in the abstract to concerted and conjoint defalcations by two or more persons. It is perfectly conceivable, as the learned counsel for the applicant admitted, that two or more persons might utilize the sum misappropriated for the benefit of their joint account. The question has to be decided by reference to the particular facts of each case. Otter, J. in 8 Bang 632 has followed the Calcutta ruling in the case before him. In that case one accused was charged with having misappropriated certain sums of money, and another accused with having misappropriated part only of the same moneys. In holding that each act of misappropriation of the two accused was complete in itself and the charge of abetment against the third accused was illegal and contrary to S. 222(2) of the Code, Otter, J. took occasion to guard himself against expressing the opinion that in no case could more than one person be guilty of misappropriating the same sum of money or that S. 222 of the Code could neper apply to persona jointly charged. The case in 63 Cal 18 (6) which was referred, to at the Bar does not go so far as to say that in no event should two persons be jointly charged in respect of criminal breach of trust in respect of a single sum of money. The Judges were dealing with the manner in which in that case the charge was framed which did not state who made the alleged entrustment and who suffered from the alleged breach of trust. Therefore they held that the charge of embezzlement was indefinite and embarrassing. If authority were needed for the proposition that upon an averment of community of dishonest purpose and action a joinder of charges was justifiable, I would follow the ruling in 30 Bom 49 which is binding on us.
7. But the objection in regard to the form in which the charge has been formulated goes to the root of the trial. It was stated in the charge that the criminal misappropriation took place on or about 22nd March 1935, the date on which the absence of the balance in hand was discovered. Section 222 of the Cr PC, makes a departure in some respects from the ordinary rules relating to the framing of charges and does away with the necessity of amplification of certain statements of detail which other sections of the Code require to be specified. But it does require the specification of such particulars as to the time and place of the offence as are reasonably sufficient to give the accused notice of the matter with which he is charged. That is so stated in Cl. 1 of S. 222. Cl. 2 of that section provides that:
When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of S. 234:
Provided that the time included between the first and last of such dates shall not exceed one year.
8. In dealing with the charge framed in the present case there is no doubt that in regard to the first requirement under Cl. (2) it is in order. The gross sum, viz. Rs. 3,481, in respect of which the offence is alleged to have been committed, is specified. The second requirement of that clause as well as that of Cl. 1 is that the date of the offence or the dates between which the offence is alleged to have been committed have to be specified. The law dispenses with specification of particular items or exact dates; and approximate references are enough. In that respect the charge seems to be extremely defective. The only date specified is 22nd March 1935, as the date on which the criminal breach of trust is alleged to have been committed. If it was the prosecution case that on 22nd March 1935 the accused had criminally misappropriated the amount in question, then unquestionably the charge was perfectly in order. The evidence of the prosecution however disclosed that the auditor discovered on 22nd March 1935 that the balance in hand should have been Rs. 3,481 and that sum was not available. The utmost that can be said upon the statement in the complaint and the evidence is that it was the date on which the alleged defalcation was discovered. Upon the prosecution evidence, on 22nd March 1935, the accused had not in his possession the amount in question. In the circumstances it is reasonable to suppose that the misappropriation had taken place antecedent to that date. As to when the sums of money that were made good between the Honorary Secretary and his clerk were actually misappropriated the learned Assistant Government Pleader was unable to enlighten us from the record. All that he could say was that according to the statements supplied by the auditor there were varying balances, minimum as well as maximum, in the hands of the clerk and the Honorary Secretary between February 1934 and March 1935. That serves the only purpose of proving that the Society's cash balances to that extent were in the hands of the persons entrusted with the management of the Society's funds on those dates; but the statements could not prove on what particular dates or months the items which should have been in hand were found wanting or misappropriated.
9. In the above state of the record and in the absence of further proof as to dates on which the misappropriations took place, the question arises whether the statement as to the date referred to in the charge framed by the learned Magistrate is reasonably sufficient to give the accused notice of the matter with which he was charged. It is pointed out for the Grown that there is an extra-judicial confession on the record made before the auditor by the applicant who admitted having used the balance in his hand for his own private purpose and, that is sufficient to cure the defect. Apart from the value to be attached to that statement, it is clear to me that the charge which merely implies that the date of the discovery of the fraud might perhaps be the date of commitment of defalcation must be regarded as extremely defective. The prosecution obviously could not give any indication as to the approximate date of the commitment of the alleged defalcations in the circumstances of this case. The defalcation, as I have already stated, was committed, according to the record, some time prior to the date given in the charge. The charge which does not unfold to the person accused of criminal breach of trust, even approximately, the dates between which he dishonestly converted to his own use the property in question, and leaves that part of the prosecution case in obscurity by referring merely to the date on which the conversion was discovered, must necessarily seriously prejudice the accused in his defence in the trial and is, therefore, bad in law. In that sense the charge is bad for vagueness. I would, therefore, set aside the applicant's conviction, and in view of all the circumstances order his acquittal. The fine paid shall be refunded and the bail bond cancelled. The rule issued by this Court to the applicant to show cause why the sentence should not be enhanced if the application for revision be dismissed is accordingly discharged.
Broomfield, J.:— The charge against the two accused persons in this case was that:
On or about 22nd March 1935, being entrusted with the funds of the Society amounting to Rs. 3,481, you committed criminal breach of trust with respect to the said amount.
10. There was also a charge under S. 477-A, and before the Sessions Judge there was an elaborate argument as to the power of the Court to add this charge which was not in the original complaint. On that point I have nothing to add to the observations of my learned brother.
11. Dealing with the charge under S. 408, criminal breach of trust, it has been argued that two persons cannot misappropriate the same sum of money, and that there is a misjoinder of charges, also that the charge is too vague and does not set out all the ingredients of the offence under S. 408. Reliance has been placed for the first contention on 16 CWN 600 and 8 Rang 632 and for the second on 63 Cal 18 . I doubt if there is any substance in either point. The cases cited were decided on their own facts and in my opinion were not intended to lay down any invariable rule. As my learned brother has pointed out, Otter, J. at p. 642 of the case in 8 Rang 632 , expressly guarded himself against being supposed to lay down the proposition that two or more persons can never be charged with misappropriation of the same sum of money. Obviously two persons cannot misappropriate the same some of money independently, but there is no reason why they should not co-operate in doing it. S. 34, Penal Code, would enable two or more persons to be charged jointly with the misappropriation of the same sum, and it has been held that it is not necessary to incorporate S. 34 in the charge: 49 Bom 84 (7).
12. It may also be pointed out that the definition of “criminal breach of trust” itself includes the words “or wilfully suffers any other person so to do.” If this case had been sent up for trial in Bombay City, the accused would probably have been charged with breach of trust and for aiding or abetting one another in the commission thereof. Perhaps that might have been technically more correct. But it cannot reasonably be contended, in my opinion, that the accused have been prejudiced, and in the absence of prejudice, the defect in the charge, if there is any, would be curable under Section 537 of the Cr PC. As I have several times had occasion to point out recently, in view of 54 IA 96 (8) and 53 Mad 937 (9), 25 Mad 61 (10) can no longer be regarded as an authority for the proposition that any misjoinder of charges necessarily vitiates the trial, irrespective of the question whether the accused has been damnified thereby. As for the alleged vagueness of the charge, it is provided in Cl. (2), S. 221 of the Code, that if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only, and the charge as framed in this case is in accordance with the form given in all text books. All the prosecution were in a position to state was that the accused, according to their, own books, ought to have had Rs. 3,481 in their possession and they were unable to produce it on demand. The prosecution had no means of knowing the particular manner in which the money had been misappropriated, but that in itself cannot make the charge of breach of trust unsustainable. Cl. (5) of the same S. 221 says:
The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
13. The realy serious difficulty about this charge, curiously enough, is not that it is too vague, but that it is too definite, in this respect, that it alleges breach of trust on or about 22nd March, when as a matter of fact the prosecution was not in a position to prove misappropriation on or about that date. In fact it is contrary to all the probabilities of the case that there should have been any misappropriation at or about that time. Early in March the auditor had intimated his intention of auditing the accounts of another institution in Godhra, and the accused would naturally expect that the accounts of their Society would also be inspected. That was obviously not the time when anybody would be likely to make away with the money. The second accused repaid the missing amount in the course of a day or two, but in order to do that he had to borrow the money. The misappropriation had no doubt taken place already, and that was the reason why the accused were unable to produce the money on demand. The learned Sessions Judge in para. 15 of his judgment referring to the re-constructed books of the Society, says that the sum of Rs. 3,481 must be the balance between 1st and 23rd March. But these figures merely show what money ought to have been available, not what was in fact in the possession of the accused on those dates. The misappropriation may have taken place, and probably did take place, long before, and may have been spread over a considerable period. The failure to produce the money on demand would not in itself come within the definition of misappropriation or breach of trust. The evidence does not show clearly when the accounts had last been audited. But it does show that there were periodical audits at which the balances were checked. It would have been quite possible, therefore, for the prosecution to ascertain the last occasion on which the moneys were known to have been in the hands of the accused, and to have framed a charge accordingly, fulfilling the requirements of S. 222 of the Code.
14. The learned advocate who appears for the Crown in this Court has relied upon the fact that accused No. 2 admitted before the auditor that he had used the money, and he argued that in view of that admission it was not necessary for the prosecution to allege or prove when the misappropriation took place. If there were any force in this argument it would apparently mean that the date might have been left out of the charge altogether. But that, I think, is clearly not so. My learned brother has read the provisions of S. 222. You must allege either misappropriation at a particular time or misappropriation within a particular period. In the present case the charge alleged misappropriation on or about the particular date, 22nd March. If you allege a particular date you must prove that the offence took place at or about that time.
15. The position here is not that the charge is seriously defective as it stands, but that the prosecution have failed to establish the allegation made in the charge. If, with the charge as it stands, the prosecution had attempted to prove misappropriation of the money at a different date or within a particular period, then the question would arise whether the charge was defective and whether the accused had sufficient notice of the charge sought to be made against him. But what happened here was that the prosecution produced no evidence either of misappropriation on 22nd March or of misappropriation at any other time, and it has to be conceded that there is nothing on the record which goes to show that any misappropriation took place on or about 22nd March which was the date given in the charge. There being no proof of the charge against him, the accused must obviously be acquitted. This result is not as unsatisfactory as it might otherwise have been in view of the fact that be has restored the whole of the money. I agree with the orders proposed by my learned brother.
D.S/R.K
16. Conviction set aside.