The Judgment of the Court was delivered by
Das, J.:— This appeal has been preferred by one Becharam Mukherjee who has been convicted by the Additional Chief Presidency Magistrate of Calcutta on 17th December 1942, under S. 380, Penal Code, and on three counts and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1000 and in default to undergo rigorous imprisonment for another six months, the fine if realised being directed to be paid over as compensation to one Sailaja, who is respondent 2 in this appeal. The prosecution which resulted in the aforesaid conviction and sentence against which the present appeal is directed was initiated by a petition of complaint (Ex. 4) filed by one Manikbala as complainant before the Chief Presidency Magistrate on 27th February 1942, charging the appellant under Ss. 403, 406 and 420, Penal Code. On that date the Chief Presidency Magistrate after examining the complainant referred the matter to the Deputy Commissioner, Detective Department, with a direction to take cognisance if any case is made out.
2. Sub-Inspector Provakar Mukherjee (P.W 11) was deputed to take up the investigation. He commenced the investigation on 6th March 1942. The appellant was arrested on 19th March 1942, in the room of one Shefali a woman of the town living at No. 7, Gouri Sankar Lane. After investigation the Sub-Inspector on 20th May 1942, submitted two challans in each of which the appellant was charged under S. 406, Penal Code, and alternatively under S. 420, Penal Code. The Chief Presidency Magistrate sent the case to the Additional Chief Presidency Magistrate for disposal. The two challans were amalgamated by the Additional Chief Presidency Magistrate. The trial opened on 29th June 1942. Between 29th June 1942, and 3rd August 1942, 11 witnesses were examined by the prosecution before the Additional Chief Presidency Magistrate, the cross-examination of each of these witnesses being reserved. Charges were framed on 4th August 1942, in three sets, each set containing a charge under S. 380, Penal Code, with an alternative charge under S. 403, Penal Code. It will be necessary to refer to and examine the charges in greater detail hereafter. The appellant having pleaded not guilty the trial continued. The 11 prosecution witnesses were re-called and cross-examined. Four new prosecution witnesses were also examined and cross-examined. The prosecution closed its case on 3rd October 1942. The appellant was examined under Section 342 of the Cr PC, and stated that he would file a written statement. The defence called five witnesses and closed their case on 12th November 1942. Arguments were heard on 24th, 26th and 30th November 1942. On the last mentioned date the appellants' written statement was filed. Judgment was delivered on 7th December 1942 resulting in the conviction and the sentence which I have already mentioned.
3. The prosecution case may briefly be summarised as follows: One Sm. Sailaja Dassi, a woman of the town of the age of about 35 years, was in the sole keeping of one Balai Chandra Roy for 6 or 7 years. Manikbala is her foster daughter. Sailaja with Manikbala formerly used to live in a house as tenant of one Kalo Bina. This Kalo Bina was also a woman of the town and latterly came to be the mistress of the appellant. It was in that house that Sailaja and Manikbala became known to the appellant. He used to address Sailaja as “Didi” Manikbala used to call Kalo Bina “Mashi” and the appellant as “Mesho Babu.” Sailaja prospered as a prostitute and made a fortune by her trade. She had a considerable amount of cash and jewellery and ornaments. Four or five years ago she purchased premises No. 4, Imam Bux Lane for Rs. 10,300. After the purchase of this house she removed there with her daughter. Appellant used to come and see them at this new house and became intimately associated, with them and Sailaja and Manikbala came to place great confidence and reliance on the appellant. The appellant knew about Sailaja's ornaments and cash. In the month of May 1941 Sailaja fell ill and developed signs of insanity. The appellant who then used to come to her place often suggested that it would be better if she were sent to a Hospital. He also said that he knew the authorities of a Hospital and could arrange matters. After some time Manikbala agreed to the suggestion. Thereupon on 18th May 1941, Sailaja was taken by the appellant to a mental Hospital at Dum Dum called Bangiya Unmad Ashram and kept there for nearly a year. Manikbala used to defray the expenses of Sailaja while she was in the Hospital. After sending Sailaja to the Dum Dum Hospital the appellant evinced great interest in Manikbala in her helpless condition, she having nobody else to advise her or to look after her interest. In or about July 1941 the appellant impressed upon Manikbala that it was unsafe for her to keep her ornaments and cash in her house and advised her to deposit them in the bank. This advice had been given 10 or 15 times and Manikbala agreed to act upon it on the representation and assurance that the deposit in the bank would be in her name. The appellant gave her a piece of paper with her name in English written thereon by him and advised her to copy the writing and thereby learn to sign her name in English. The appellant said that bank would not accept Bengali signature. The ironsafe was opened. Rs. 5300 in G.C Notes and 21 items of ornaments were found therein. A list of the ornaments was prepared and signed by Manikbala. On 31st July 1941 the appellant took Manikbala to the Shambazar Branch of Nath Bank. There a savings bank account was opened in their joint names with Rs. 1300, From there they went to the Shambazar Branch of Imperial Bank and a savings bank account was opened in that bank in their joint names with Rs. 2000. Manikbala was under the impression that both the accounts were opened in her name alone and the whole of the amount of Rs. 5300 had been deposited in the two banks. On the next day, i.e, on 1st August 1941 the ornaments were taken to a third bank namely the Central Bank. There a safe in the safe deposit vault was taken on hire in the joint names and the ornaments were deposited in that safe. The appellant thereafter made over to Manikbala a key alleging that was the key of the safe in the deposit vault. Manikbala, of course, was under the impression that the safe was hired in her name alone.
4. After the two accounts had been opened and the ornaments were deposited, the appellant stopped coming to Manikbala's place as often as he used to do. Sometime later on Manikbala wanted to bring back her ornaments and moneys. She saw the appellant 3 or 4 times. As the appellant did not agree, Manikbala became suspicious and went to the Central Bank with Bolai Babu on 23rd February 1942. She took with her the key which had been given to her by the appellant. They went into the vault. She showed the key to a Babu there. The Babu said that was a false key. Manikbala and Bolai came back from the bank and on that very date sent a letter to the Central Bank stating that a serious fraud had been practised on her and requesting the bank not to allow any one to open the safe without orders from proper Court. She also went to the two other banks with Bolai and ascertained that the accounts in those banks had been opened in the joint names and only Rs. 1300 and Rs. 2000 had been deposited and practically the whole amount deposited in each of those banks had been withdrawn and the balance on 23rd February 1942 was Rs. 7 in the Nath Bank and Rs. 10-7-0 in the Imperial Bank. The letter from Nath Bank in reply to her letter dated 23rd February 1942 was dated 26th February 1942, and contained a statement of account. On 27th February 1942, Manikbala filed her petition of complaint. Under order of the Chief Presidency Magistrate the safe in the Central Bank was broken open and was found empty. On investigation it was found that moneys were withdrawn from the two banks on the following dates:
(a) Imperial Bank: Deposit Withdrawals 31-7-41…2000 16-10-41…1000 20-11-41…500 2-12-41…475 5/6-2-42…20 (b) Nath Bank: Deposit Withdrawals 31-7-41…1300 12-9-41…1100 19-9-41…100 2-12-41…75 5-2-42…20
5. All the withdrawal slips were signed by the appellant. Not one of them was signed by Manikbala. It also appeared that the safe in the Central Bank had been opened 5 times on the following dates: 21st August 1941, 3rd November 1941, 11th November 1941, 1st December 1941 and 18th December 1941. The records of the Central Bank show that the requisitions for opening the safe were signed by the appellant on each of the 5 occasions the safe had been opened. Manikbala maintains that she did not receive any portion of the moneys or ornaments withdrawn from the banks. It also transpired that towards the end of December 1941, the appellant deposited rupees 3000 with the owner of the Rang Mahal Theatre premises and his son from whom the appellant and his partner Sarat took the premises and the Stage fittings on hire. This in short, was the prosecution case. It was on the basis of this case that the following charges were framed:
“1. That you Becharam Mukherjee on or about 16th October 1941 at Calcutta committed theft in respect of Rs. 1000 belonging to the complainant Manickbala Dassi and kept in the Imperial Bank,. Shambazar Branch, in the Saving Bank Account by dishonestly taking that money out of the account of the complainant on withdrawal slips without the knowledge and consent of the complainant Manickbala Dassi and thereby committed an offence punishable under S. 380, Penal Code, and within my cognizance, or, that you Becharam Mukherjee on or about 16th October 1941, at Calcutta dishonestly misappropriated the sum of Rs. 1000 belonging to the complainant by dishonestly withdrawing the same from the Imperial Bank Shambazar Branch, Calcutta, without the knowledge and consent of the complainant Manickbala Dassi and thereby committed an offence punishable under S. 403, Penal Code, and within my cognizance.
2. That you Becharam Mukherjee on or about 12th September 1941, at Calcutta committed theft, in respect of Bs. 1100 belonging to the complainant Manickbala Dassi and kept in the Nath Bank, Shambazar Branoh, in the account of the complainant by dishonestly taking that money out of the account of complainant on cheques without the knowledge and consent of the complainant Manickbala Dassi and thereby committed an offence punishable under S. 380, Penal Code, and within my cognizance or that you Becharam Mukherjee on or about 12th September 1941, at Calcutta, dishonestly misappropriated the sum of Rs. 1100 belonging to the complainant by dishonestly withdrawing the same from the Nath Bank, Ltd., Shambazar Branch, Calcutta, without the knowledge and consent of the complainant Manickbala Dassi and thereby committed an offence punishable under S. 403, Penal Code, and within my cognizance.
3. That you Becharam Mukherjee between 21st August 1941 and 18th December 1941, at Calcutta, committed theft in respect of gold ornaments belonging to the complainant and weighing about 150 tollas valued at Rs. 7000 by taking them from the safe deposit vault No. 675A of the Central Bank of India Ltd., rented by the complainant Manickbala Dassi and thereby committed an offence punishable under S. 380, Penal Code, and within my cognizance or that you Becharam Mukherjee between 21st August 1941 and 18th December 1941 at Calcutta dishonestly misappropriated the gold ornaments weighing about 150 tollas valued at Rs. 7000 belonging to the complainant by dishonestly taking them out from the Safe Deposit Vault No. 675A rented by the complainant Manickbala Dassi from the Central Bank of India Ltd., without her knowledge and consent and thereby committed an offence punishable under S. 403, Penal Code, and within my cognizance.
6. Mr. P.C Chatterjee appearing for the appellant has severely criticised the charges framed by the learned Additional Chief Presidency Magistrate. He contends that the charges as framed were improper and not permissible under the Code of Criminal Procedure and that the whole trial has been vitiated thereby. I am inclined to think that Mr. Chatterjee's contentions are well founded and for the following reasons:
(a) The first alternative of the 3rd set of charges namely the charge under S. 380, Penal Code, of theft in respect of the ornaments appear to me to be wholly improper and illegal. I cannot accept Mr. Bhattacharjee's contention that these thefts of different things on different dates separated by considerable periods can be treated as one theft on the analogy of successive blows constituting one assault. In my opinion, the analogy cannot apply to the present case having regard to the lapse of time between the alleged thefts. In my opinion, each of these alleged thefts is a complete offence by itself and cannot be lumped up together into the offences in the way it has been sought to be done in that charge. Each theft is a substantive offence and should be charged separately with reference to particular things alleged to have been stolen. That is the general rule. There are, however, two express exceptions made by S. 222(2) which provides that when a person is charged with criminal breach of trust or dishonest misappropriation of money it is 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. If different charges for other offences could also be lumped up as a rule there would have been no necessity for making any special provisions in respect of criminal breach of trust or dishonest misappropriation. It is pointed out on the other side, that if that were the law then if a thief were clever enough to so contrive that the prosecution could not detect which particular thing was stolen on which particular date, the thief who had stolen a whole lot of things during a definite space or period of time would never be liable to prosecution, although the prosecution could enumerate the total number of things stolen and the dates between which the several thefts took place. There may be many answers. To start with, it will be in rare cases that a thief will be able so to conceal the particulars of the things stolen by him. It is only in exceptional cases that the thief will evade justice and punishment. Many criminals escape because they are clever enough to conceal their identity. Lastly such a contingency as is said to have happened in this case may only disclose a lacuna or defect in our Code of Criminal Procedure. It is not for the Court but for the Legislature to supply the lacuna or rectify the defect. The Code as it stands at present does not, in my judgment, permit such a lumped up or composite charge to be framed in respect of theft.
(b) In this case the appellant is charged with three offences of theft and three offences of dishonest misappropriation in the alternative and all these six offences were tried at one and the same trial. Under Section 233 of the Cr PC, for every distinct offence of which any person is accused there has to be a separate charge and every such charge has to be tried separately except in the cases mentioned in Ss. 234, 235, 236 and 239. Thus, the general rule is that there must be separate trial in respect of each of such charges. The exceptions to this general rule are contained in Ss. 234, 235, 236 and 239. In this case there were three sets of charges. Each set contained two distinct charges of two distinct offences under two distinct sections of the Penal Code and there was one trial. This is not permissible under the general rule contained in part 1 of S. 233. The question is whether such a course is permissible under any of the exceptions contained in Ss. 234, 235, 236 and 239.
7. I have pointed out above that the third charge does not relate to one offence, but to a number of separate and distinct offences. Therefore, assuming that the offences included in the third charge are of the same kind as those set out in the first and second charges, it is clear that the accused was charged with and tried at one trial for more than three offences of the same kind. This is not war-ranted by S. 234. Let us now go to the next exception. Section 235(1) provides that if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. The illustrations to this sub-section explain its meaning. Whether a series of acts are so connected together as to form the same transaction is purely a question of fact depending on proximity of time and place, continuity of action and unity of purpose and design. Learned advocates for the respondents contend that the appellant had one single purpose namely to deprive the woman of her properties. He started by confining the mother in the lunatic Hospital. Then he took advantage of the helpless condition of the daughter and induced her to deposit the moneys and ornaments in the banks and contrived to get the accounts opened in the joint names of himself and the daughter and then robbed her by withdrawing the moneys and ornaments from the banks. The case made out by the prosecution, at the time the charges were framed, seems to me inconsistent with the view that all the acts formed part of the same transaction. It is clear that, according to the prosecution, the accused was free to withdraw the entire deposit from each bank in one instalment, and to take all the ornaments from the safe deposit at one time. The fact that he did not do so indicates that the various alleged thefts or misappropriations were in fact isolated and independent crimes; that success in one crime led the accused to commit another and that the alleged offences were due to periodical lapses. The way certain items of offences have been picked out and made subject-matter of different charges does not indicate that the prosecution or the Magistrate treated them as parts of the same transaction. If therefore the withdrawals were independent crimes then although the modus operandi was similar, S. 235(1) will be of no assistance to the respondents, Nor will sub-s. (2) of that section apply. This sub-section covers the case where the particular acts constitute an offence falling within two or more separate definitions of any law by which offences are defined or punished. It does not cover the case where different sets of acts constitute different offences as the illustrations clearly show. Sub-section (3) of S. 235 has clearly no application. The next exception is S. 236. It applies when a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute. In such a case the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of the said offences. This section will therefore justify the two alternative charges in each of the three sets of charges taken separately. Each withdrawal is a single act or a series of acts. If it is doubtful whether a particular withdrawal is theft or dishonest misappropriation, the accused may be charged with theft and dishonest misappropriation or with theft or dishonest misappropriation in respect of such withdrawal. It clearly does not apply where there are two separate single acts or two separate series of acts, each of which constitutes a separate offence although each of such separate offences may fall within one or more definitions of offences. In other words each set of charge in this case taken separately may be supported by this section but it does not authorise or justify the joinder of three sets of charges founded on three several acts of three several series of acts.
8. Section 239 is clearly inapplicable to this case. The result is that in my opinion there has been a good deal of irregularity in framing and joinder of charges. This joinder of charges does not appear to me to be sanctioned by Section 234 or Section 236 of the Cr PC. In view of my observations regarding the application of Section 234, the question whether Sections 234 and 236 can be combined does not arise in the present case. In the facts and circumstances of the case I am not satisfied that the joinder of charges is saved by S. 235. The joinder of these charges have therefore been in contravention of S. 233 and as such the illegality cannot be cured under S. 537. The conviction and sentence, therefore, must be set aside and the case sent back for retrial by some other Magistrate.
9. In view of our decisions stated above we do not consider it right to express any opinion on the facts of this case. I desire however to point out to the learned Magistrate that S. 380, Penal Code, cannot apply to the alleged offences committed in respect of the money drawn from the bank. That money was never in the possession of the complainant it was in the possession of the bank until withdrawn. It was taken from the possession of the bank with the bank's consent. Pending the retrial, let the appellant continue on the same bail as he is on now.
Lodge, J.:— I agree.
G.N
10. Retrial ordered.
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