Manohar Lall, J.:— The learned Sessions Judge of Patna by his letter, dated the 1st of July, 1941, has sent up this case under section 307 of the Code of Criminal Procedure recommending that the accused Ramautar Lal should be convicted for offences under sections 409 and 477-A of the Indian Penal Code. The trial was held with the aid of jury, who by a majority verdict of three to two were in favour of the acquittal of the accused.

The facts of the case are somewhat complicated and it is necessary to state them as briefly as possible in order to appreciate the questions which arise for consideration.

The accused, Ramautar Lal, was a clerk in the Patna Collectorate and appears to have been employed at all material times as an assistant Nazir and as such in charge of the accounts department of the Nazarat. His duty was to make entries in three registers known as the general cash book, register V and the remittance register. The evidence discloses that under the rules framed by the Government all sums received in or paid out of the Nazarat must be entered in the general cash book. At the same time subsidiary registers are maintained for particular kinds of transactions; for instance, in Patna the system is that in register no. V must be entered details of the sums received from certificate-debtors in cases under the Public Demands Recovery Act but only when ordered by the Certificate Officer to be received by the Nazir; to this register are also posted those sums which are received by the Nazir under the orders of the Collector on the dates fixed for the sales for arrears of land revenue as well as earnest moneys received by the Nazir from auction bidders in sales held for recovery of arrears of land revenue and cess, but again only when ordered by the officer in charge. As is to be expected the rule is stringent that any money received in the Nazarat should be received by nobody except by the Nazir himself. Before he receives the cash, a cheque receipt in the prescribed form is granted to the power, which receipt has a serial number on it, and the number of this receipt is shown in the general cash book or the subsidiary register as the case may be and is written out by the accountant. Another stringent rule is that on no account may any sum which is not passed through the hands of the Nazir be entered in the general cash book or in any of the subsidiary registers.

From time to time the Nazarat has to remit sums to the Imperial Bank for deposit there. The system of remitting these sums is that entries of the sums proposed to be remitted are made in the remittance register which is sent along with the money and the proper chalans to the Imperial Bank. After the money has been received in the bank the bank's receipt stamp is placed on the remittance register as well as on the chalans (and on the chalan lists) and the receipted copies of the chalans together with the remittance register are returned to the Nazarat.

Such in brief is the system adopted in the Patna Collectorate Nazarat and if this system of posting in the various registers is regularly and carefully followed and the posting in the various registers carefully checked there would presumably be no room for any embezzlement or defalcation; but as will appear later a number of irregular entries were being made from time to time in several registers giving rise, as the prosecution alleges, to great opportunities to this accused to enter upon a vast scheme of fraud.

It may be convenient to state here that Babu Kesho Lal was the Nazir in this Collectorate until the 26th September, 1938, when he retired, and from the 27th September onwards Babu Banwari Lal was the Nazir. The accused Ramautar Lal was the accounts clerk in the Nazarat during this period except for a short time from the 27th June, 1938, to the 7th July, 1938, when he went on leave. On the 1st February, 1939, he was transferred to Patna City when, it is alleged, the new Nazir began to investigate into the accounts which had been kept by the accused. On the 5th February, 1939, the accused went on leave and on the 23rd of April, 1939, he submitted his resignation while on leave.

The case of the prosecution is that between the 12th of April, 1938, and the 16th of January, 1939, the accused committed a criminal breach of trust of a sum of Rs. 76-9-6 and in order to avoid detection falsified the general cash book, register no. V and the remittance register in a number of ways, which will be referred to in detail hereafter. The amount of Rs. 76-9-6 is said to have been arrived at by taking three items of Rs. 42-0-0, Rs. 31-9-0 and Rs. 3-0-6, but as was permissible in law a single charge has been framed under section 409 of the Indian Penal Code.

Three other charges were framed at the trial under section 477A of the Indian Penal Code.

The first of these charges relates to two entries, namely, of Rs. 42-0-0, dated the 12th April, 1938, and of Rs. 31-9-0, dated the 17th June, 1938, which were made in the general cash book as having been posted from register no. V.

The second of these charges consists of twenty-two entries which were alleged to have been irregularly and fraudulently made in register no. V. The first of this subsidiary heading under this charge relates to the entry of Rs. 42 on the 12th April, 1938. The second of this subsidiary heading states that this wrong entry of Rs. 42 was carried under its false head to several subsequent dates till the 2nd of May, 1938. The several subsequent dates are not specified but it is obvious that the second subsidiary heading is comprised of a large number of entries which were made the subject of the charge. Similarly the third and fourth subsidiary heading covers a large number of entries although the number of these entries is not stated.

The last of these charges relates to the remittance register and is covered by four subsidiary headings.

When the trial began before the learned Sessions Judge the accused complained of the misjoinder of charges, but the learned Judge overruled this contention by his order, dated the 31st of May, 1941. This objection has again been raised in this Court and will be dealt with in a convenient place later on.

It is at this stage desirable to state briefly how the prosecution alleges that the accused came to misappropriate the three items described above.

Rupees 42 was received on the 12th April, 1938, from the Patna Administration Committee as subsistence allowance for a certain certificate-debtor whom it was proposed to arrest. The accused, as was required, wrote out the cheque receipt no. 66 but instead of posting this amount in the general cash register direct he posted it to register no. V. This was admittedly an irregularity but I agree with the learned Judge that the explanation of the accused is not unreasonable when he says that he entered this amount in register no. V because he thought that the amount came from or related to a certificate case. This sum was not remitted to the bank as certificate dues, on the other hand this amount is shown day by day in the details of balance in register no. V until the 2nd of May, 1938. It may be stated here that this money did not reach, the hands of the accused but was received by the Nazir. On the 6th May, 1938, the remittance register shows that two items of Rs. 28-8-0 and Rs. 5-10-6 were shown as remitted to the bank, put of Rs. 42-0-0, but there is no entry anywhere as to the receipt of these items. By this means the sum of Rs. 42-0-0 which had been appearing in deposit on account of receipt no. 66 was reduced to Rs. 7-13-6. On the 16th June, 1938, a sum of Rs. 31-9-0 was received in the Nazarat from the Imperial Bank as the proceeds of a fully vouched contingent bill which had been sent to the bank to be cashed. This is proved by the cheque receipt issued regarding this sum which is in the handwriting of the accused. The amount when received ought to have been posted direct to the general cash book on the receipt side, but it was posted-wrongly to the subsidiary register no. V. But what is to be observed is that this sum of Rs. 31-9-0 was not shown separately in register no. V at the end of the day but was amalgamated with the balance of Rs. 7-13-6 that stood against receipt no. 66 thereby increasing the figure to Rs. 39-6-6.

On the 23rd June, 1938, a sum of Rs. 2-9-6 was shown as received on account of cess money from the Imperial Bank, but it has been amply established that the Imperial Bank did not remit any such sum on that day. This small amount was again credited in register no. Y towards receipt no. 66, which on that day had a balance of Rs. 39-6-6 to its credit, with the result that the total sum reached was Rs. 42.-0-0 being the identical amount which stood originally against receipt no. 66. It should be observed here that the amount of Rs. 31-9-0 was actually received by the Nazir and also the sum of Rs. 2-9-6 because it has been found that the actual cash balance was being checked daily by the Nazir himself as he should have done under the rules and it is not the case either of the prosecution or of the defence that there was ever at any material time any discrepancy between the actual cash in hand and the balance as shown in the general cash book. Four days after the accused went on leave for 11 days. The entry against receipt no. 66 continued to stand at Rs. 42-0-0 up to the 2nd of August, 1938. It is difficult to understand why the amount of Rs. 42-0-0 which had been received four months ago continued to be kept in this way in register no. V and the money was not remitted to the Imperial Bank. But the explanation of the accused is that this sum was kept in the pending list and that he corresponded with the Certificate Department for a number of days but got no answer, nor was any chalan received regarding this sum and, therefore, so he alleges, he could not remit the money in a regular manner to the Imperial Bank. It is true that the accused during the trial called for the pending list of 1938 and that no such pending list was available for some reason or other, but I am not satisfied with the explanation given by; the accused.

This item of Rs. 42-0-0 has a further history. On the 4th of August, 1938, a sum of Rs. 26-11-0 was shown as having been remitted to the Imperial Bank through the remittance register and was debited to register no. V. This sum was never shown as received in the Nazarat in any of the registers. By this means the amount now standing against receipt no. 66 was reduced to Rs. 15-5-0. There was at this time a change in the Nazarat—the new Nazir Babu Banwari Lal took over charge on the 27th September, 1938. On the 17th October, 1938, the expenditure side in register no. V shows a sum of Rs. 12-0-0 as having been used for purchase of Court-fee Stamps. No such sum is shown on the receipt side. This sum of Rs. 12 was debited against receipt no. 66 thereby reducing the previous balance to Rs. 3-5-0. Three days after two other items were shown on the receipt side in register no. V, that is to say, Rs. 3-0-6 against receipt no. 954 and Rs. 0-0-2 against receipt no. 642. As stated just now Rs. 3-5-0 stood against receipt no. 66 (the sum of Rs. 3-0-6 was actually received by the Nazir). All these three items were amalgamated and the total of Rs. 6-5-8 was shown in register no. V but not against any receipt number at all till the 10th December, 1938. On the 14th December, 1938, a sum of Rs. 6-5-6 has been shown in the expenditure side as having been sent to the Imperial Bank, but nowhere any such amount is shown on the receipt side. It will be noticed, therefore, that the balance in hand on that day came to be 2 pies only out of this sum. The case of the prosecution is that the accused further manipulated the entries in order to get rid of these 2 pies. On the 16th January, 1939, a sum of Rs. 6-11-0 was received by a chalan but it had been altered to Rs. 6-11-2 although these two pies were not received on that day. It will be observed that by this alteration the entire sum of Rs. 42-0-0 which had been dwindling from 4th August, 1938, and which became reduced to two pies, on the 14th December, 1938, completely disappeared.

The prosecution case may now be recalled. The accused is charged with having criminally misappropriated Rs. 42-0-0 of receipt no. 66, namely, the amount received by the Nazir on account of the fully vouched contingent bill remitted by the Imperial Bank, and the sum of Rs. 3-0-6 of receipt no. 954 also received by the Nazir. When the trial began, as I have already stated, a charge under section 409 had been framed showing a lump of Rs. 76-9-6 but omitting the three items which went to compose it. It had been made clear in the opening address on behalf of the Crown before the learned Judge that the gross sums of Rs. 76-9-6 was made up of Rs. 42-0-0, Rs. 31-9-0, and Rs. 3-0-6. But in order to make it clear that this was the position the lawyer on behalf of the accused filed a petition before the learned Judgeu on the 30th May, 1941, stating that the reference of the three items, just stated, which make up the total amount of Rs. 76-9-6 has been omitted from the charge as framed at the request of the Public Prosecutor although in his opening address he made it clear that it was the Crown case that the gross sum of Rs. 76-9-6 was so made up. It was accordingly prayed that the fact may be noted. The learned-judge passed an order to this effect on that day (see page 198 of the paper book). However when the case proceeded to trial it became clear that there was no evidence that the accused had misappropriated the sums of Rs. 42-0-0, Rs. 31-9-0, and Rs. 3-0-6, which, as already stated, had been actually received by the Nazir on the respective dates. Accordingly the learned Judge in his charge to the jury observed at page 151:

“Then we come to the charge under section 409, Indian Penal Code. The accused is charged that being a public servant and that in such capacity he was entrusted with or with dominion over Rs. 76-9-6 and that he committed criminal breach of trust in respect of that. Now I need not worry you with the details of my reasons for holding that the prosecution has failed to produce evidence to fit this charge in respect of Rs. 76-9-6.”

It seems to me, therefore, that the accused was entitled to be acquitted of the charge under section 409, Indian Penal Code, as framed. This was not a new case which was being set up by the prosecution. This was the very case which was attempted to be made before the committing magistrate from its very start where the case proceeded on its weary length for over one year. I am quoting from page 45 of the order of the committing magistrate:

“The accused is thus to be charged under section 409, Indian Penal Code with the commission of criminal breach of trust in respect of Rs. 76-9-6 only, including three different sums of Rs. 42-0-0, Rs. 31-9-0 and Rs. 3-0-6 each, which still under the provisions of section 222(3), Criminal Procedure Code, will be deemed to be a charge for one offence only.”

The prosecution case further was that the accused committed a series of falsification of accounts which were made the subject of several charges under section 477A of the Indian Penal Code—to quote again from the order of commitment—

“as they were all committed in order to conceal and cover the criminal breach of trust of Rs. 76-9-6”.

Such being the position, I am of the view that the accused ought to be acquitted of the charges as framed under section 409, Indian Penal Code, and section 477A of the Indian Penal Code and that the verdict of the jury should be accepted.

But the learned Judge thought that as the evidence disclosed that the accused had criminally misappropriated some other items which the prosecution had included in the numerous charges under section 477A, Indian Penal Code, the verdict of the jury should be asked for regarding these specific sums. He accordingly directed the jury to consider as to whether the accused is or is not guilty of criminally misappropriating the sums of Rs. 28-8-0, Rs. 5-10-6, Rs. 36-11-0 and Rs. 6-5-6—this makes a total of Rs. 67-3-0. It is now convenient to set out how these items came to be selected though they have been mentioned already in the above narrative.

Rs. 28-8-0 was realised by the Collectorate peon Ramdas after executing is warrant against one Brijballabh Prasad. It is admitted that the peon in the ordinary course of business should have deposited this sum himself in the Imperial Bank along with the chalan and the chalan list, but his evidence is that he made over this sum together with the chalan and the chalan list to the accused who, it is suggested, pocketed the money and sent up the chalan and the chalan list by entering it in the remittance register with the result that the Nazarat had to send a sum of Rs. 28-8-0 to the Imperial Bank. As the learned Judge has pointed out the remittance of money from the Nazarat to the Imperial Bank does not result either in a loss or gain to the Government. The money still remains the money of the Nazarat but in the Imperial Bank to the credit of the Nazarat. The result therefore of this operation was that Rs. 28-8-0 which was realised from the certificate-debtor had not been credited to the Nazarat and has been misappropriated either by the accused, as the prosecution suggests, or by the peon, as the accused suggests. The accused's explanation is that somehow the chalan for this amount got mixed up with the numerous chalans which he had to enter on that day and so he entered it innocently in the remittance register. He further suggests that if the Nazir had not received this sum it was his duty to refuse to hand over this sum to the peon for being sent to the Imperial Bank along with the remittance register. The prosecution on the other hand argued that the accused ought not to have entered this sum in the remittance register unless he had issued a cheque receipt for this sum. It is also argued that there is no reason to disbelieve the evidence of the peon that he actually handed over this sum to the accused. The case of the prosecution regarding this sum rests entirely upon the evidence of Ramdas Singh.

On the same day a sum of Rs. 5-10-6 is said to have been received by the accused and misappropriated by him. The learned Judge has correctly pointed out in the letter of reference that there is no evidence at all to show that the accused received Rs. 5-10-6. This must, therefore, be left out of consideration.

With regard to the sum of Rs. 26-11-0, the case of the prosecution is that this sum was received on the 4th August, 1938, by the accused from Ghulam Dastgir Khan, a clerk in the Patna Collectorate. The younger brother of this clerk, Abdul Rahim Khan, is a ward inspector in Patna municipality, who took a loan of Rs. 200 from Government under the Natural Calamities Act and promised to pay it back by six-monthly instalments. He handed over a sum of Rs. 26-11-0 on account of the instalments to Ghulam Dastgir Khan with a request that this should be paid into the treasury direct along with the requisite chalans. Here again an irregularity was committed because the prosecution case is that instead of sending the money direct Ghulam Dastgir Khan handed over this sum to the accused and asked him if any peon was going to the bank to get him to take that money also and bring the receipt of the chalan. It is stated that the accused kept the money and the chalans, got, the chalana entered in the remittance register and pocketed the money. The receipted chalans came back from the Imperial Bank on the next day and were handed back to Ghulam Dastgir Khan by the accused. This transaction obviously invites the same comments which I have made regarding the item of Rs. 28-8-0.

The last item is a sum of Rs. 6-5-6. Regarding this the learned Judge has correctly pointed out in his letter of reference that there is no evidence to show that the accused ever received this sum.

The result of this investigation is that there are undoubtedly highly suspicious circumstances against the accused with regard to the two items of Rs. 28-8-0 and Rs. 26-11-0. The learned Judge recommends that the accused should be convicted under section 409 of the Indian Penal Code with regard to these two items for having misappropriated Rs. 55-3-0. But as observed above the accused has never been charged for criminal misappropriation of these two sums. It was argued strongly on behalf of the learned Government Pleader that it is true that the accused had not been charged regarding these two items, but these two items formed the subject of specific charges under section 477A of the Indian Penal Code and the accused had ample notice of the case which the prosecution was trying to establish. It is true that these items were made the subject of specific charges under section 477A, but that was only in order to establish the case of the prosecution that these false entries were made in order to conceal and cover the criminal breach of trust of Rs. 76-9-6 for which the learned Judge has rightly, in my opinion, held the accused to be not guilty. It will be unfair to convict the accused for having committed criminal breach of trust with reference to items for which he has never been charged. For this reason we had to consider whether the accused should be directed to be re-tried after specific charges had been framed with regard to these two items under section 409 of the Indian Penal Code. It appears that the first information was lodged in this case on the 28th March, 1939, and warrant of arrest and other processes were issued against the accused on the 13th April, 1939. The accused surrendered on the 30th May, 1939. After the police enquiry the charge-sheet was received on the 16th June, 1939. The enquiry before the learned Sub-divisional Officer of Sadar, Patna, began on the 1st of August, 1939. The arguments began on the 6th November, 1939. On the 22nd November, 1939, the Public Prosecutor argued that this was a fit case for being committed to the court of session. The court thereupon gave the accused a chance to cross-examine the prosecution witnesses. The witnesses were cross-examined is December and the cross-examination continued till the 9th of January, 1940, when arguments were heard. On the 18th January, 1940, the accused presented a petition under section 528(8) of the Code of Criminal Procedure in order to move the High Court to transfer the case from the file of the learned Magistrate. The application was admitted by the High Court, who called for the record in February, 1940. The accused was allowed to withdraw the petition of transfer in April, 1940, and the record was received back by the learned Magistrate on the 12th April, 1940. The accused was committed to the court of session by an order, dated the 27th April, 1940. The charge were amended by the learned Judge at the request of the Public Prosecutor on the 19th May, 1941, and the trial of the case began on the 28th May, 1941 A and concluded on the 19th June, 1941.

It seems to me that the accused has been greatly harassed by the undue prolongation of these proceedings. Having regard to all the circumstances this Court does not think it desirable that the accused should be re-tried to meet the charge of criminal misappropriation of Rs. 28-8-0 and Rs. 26-11-0. The prosecution should have been astute to see that the charges were carefully prepared. The evidence in support of these charges does not appear to be sufficient or strong. There is only one witness to prove each of these payments. Their conduct in handing over the money to the accused was itself irregular.

It was strongly argued on behalf of the accused before us that the whole trial was vitiated by misjoinder of charges. The argument ran thus. While it is permissible to try the accused for one charge under section 409, Indian Penal Code, and for three charges under section 477A of the Indian Penal Code relating to that charge of misappropriation, it is not permissible to try the accused as was done in the present case, for one charge under section 409, Indian Penal Code, and 28 charges-under section 477A of the Indian Penal Code. The learned Judge overruling the objection as to misjoinder of charges, which was raised before him, held that he was conclusively bound by the decisions of this Court and pointed out that all the items of falsification in the charges under section 477A were committed within the course of one year.

Three cases of this Court appear to conclude the matter.

In Gajadhar Lal v. Emperor there was a single charge of criminal breach of trust for a lump sum of Rs. 1,301 and odd and three charges under section 477A of the Indian Penal Code giving details of only three omissions from the counterfoil of rent receipts which were included in the gross sum mentioned in the charge under section 408, Indian Penal Code. This case was followed in Michael John v. King-Emperor*. Here the charge of embezzlement related to a total sum of Rs. 2,058 and odd composed of several items from several different headings, namely receipts in respect of cart registration, pound revenue, personal and latrine tax, motor car licence and old chairs. A second charge of falsification of accounts set forth various items of falsification in the cash book. The facts are not clearly stated in the judgment of the learned Chief Justice as to whether the charge of falsification of accounts related to three items or more. In order to clear up this ambiguity I sent for the original records of this case. I find that the charge under section 477A related to the alteration of 3 entries only from the cash book.

All the cases were reviewed in the case of Ramkishoon Pershad… v. Emperor…Opposite Party. by a Division Bench of this Court. They approved of a joint trial of the charge for a lump sum under section 409, Indian Penal Code, (even though the charge may consist of several items) along with falsification of accounts charged under three heads, provided that the subject-matter of each charge was linked either with the lump sum or with some items of the lump sum. It is enough to quote from page 130: “Section 234 permits three offences of the same kind committed within the space of twelve months from the first to the last to be tried at one trial. A valid trial on charges as to three offences being thus constituted, section 235 comes in to provide that all offences committed by the same person in the series of acts so connected together as to form the same transaction with any one of those three offences, can be tried with that offence. In principle multiplicity of trials is to be avoided. Again in order to establish one or more of the charges triable at one trial under section 234, it is frequently essential or expedient to produce all the evidence necessary and sufficient to establish the other offences referred to in section 235(2). There being ordinarily no likelihood that the accused would, in the circumstances, be 1941, embarrassed in his defence, it is hard to believe that this evidence is only to have effect as to one of the offences committed in the same transaction. One would expect the legislature at least to permit a joint trial of all the offences in the series forming the same transaction in spite of the fact that one of the offences Manohab of the series is by another provision triable along with Lall two other offences of the same kind. We consider that it has done so and we can see no reason why sections 234 and 235 are not to be regarded as cumulative in their effect in a proper case”.

By the application of the principle which has been consistently followed in the above three cases by this Court it is clear to my mind that the charges as framed under section 477A of the Indian Penal Code in this case were illegal. The prosecution selected more than three charges although by the device adopted by the Public Prosecutor 28 charges relating to three registers were condensed into various sub-headings under each charge. It should also be pointed out that the series of charges under section 477A, Indian Penal Code, even though committed in the course of one year are not permitted to be lumped up together as section 222(2) of the Code of Criminal Procedure refers only to the offence of criminal breach of trust or dishonest misappropriation of money and not to falsification of accounts [see the case of Emperor; v. Manant K. Mehta*].

To apply these cases in all of which the charges framed under section 477A were limited to three charges only to the facts of the present case. I have already shown more than once that it is not the case of the Crown that the accused set about to defalcate Rs. 76-9-6 from the very beginning, but their case is that as occasion arose and opportunities offered themselves he went on defalcating such sums as he could conveniently do so without attracting the attention of his superior-officers. Each defalcation, therefore, was a separate offence. Had it been the prosecution case that all these series of entries in the accounts were falsified in order to cover up one single defalcation, the joint trial may have been perfectly legal; but here the falsifications alleged are 28 in number, although they relate to three registers and even though they are condensed into four charges by the device adopted by the Public Prosecutor of using sub-headings under each charge. Upon the authority of the cases decided by this Court the trial was illegal.

I have already given my reasons for holding that I do not think it desirable that the accused should be re-tried on properly framed charges in the lines indicated above.

The result is that I would discharge the reference and direct that the accused be set at liberty forthwith.

Meredith, J.:— I agree.

K.D

Reference discharged.

Accused acquitted.