1. The appellant Sachchidanand Prasad has been convicted under S. 467, I.P.C on a trial held by the Assistant Sessions Judge of Patna, and a jury of five. The jury returned a unanimous verdict of guilty, and the appellant has been sentenced to undergo rigorous imprisonment for five-years. The appellant whose age is given as 19 or 20 was employed as a probationary clerk in the Traders' Co-operative Bank, Muradpore, Patna. Pandit Chandradutt Trivedi who is the Head Pandit in the Ram Rohan Roy Seminary, opened a Savings Bank Account with this bank on 22nd January 1930. Deposits and withdrawals were made by him from time to time. His evidence is that his practice was whenever he had occasion to make a deposit or withdrawal to go personally to the bank taking his pass book with him and getting his pass book entered up. He went on 25th May 1932, and drew Rs. 500. Prior to this the last previous transaction was a deposit by him of Rs. 200 made on 4th April 1932.
2. On that occasion the pass book was written up and showed a credit balance of Rs. 963-11-0. The Pandit therefore expected that his pass book after drawing Rs. 500 on 25th May would show a credit balance of Rs. 463-11-0. Instead he found a balance shown of Rs. 113-11-0 only and found debit entries made in the passbook representing withdrawals of Rs. 100, dated 20th January 1932, and Rs. 250, dated 21st March 1932. He called for the withdrawal application forms and on being shown to him he at once repudiated the signatures, he interviewed the manager that evening and made a written complaint to the manager the following day. The manager asked him to call again after two or three days. He was dissatisfied and thought that he was being put off. On 27th May he lodged a written information at Pirbahore police station which led to the arrest of the appellant on 10th June 1932. After taking the opinion of a-handwriting expert the police submitted charge sheet on 30th August 1932, and the accused was committed for trial on 5th November 1932. It is the prosecution case that the accused forged the signatures purporting to be those of Pandit Chandradutt Trivedi on the two withdrawal applications and himself received the amounts so drawn. The charge recites that between 20th January 1932 and 21st March 1932 the accused forged a document purporting to be a valuable security, to wit the withdrawal cheque, dated 20th January 1932, and the withdrawal cheque, dated 21st March 1932 for Rs. 100 and Rs. 250 respectively with intent to receive the aforesaid sums and thereafter withdrew the aforesaid sums. The charge is a single charge with one head. It is manifest on the face : of it that it has been framed in contravention of Section 233 of the Cr PC which enacts that “for every distinct offence of which any person is accused there shall be a separate charge.” The forgery of the cheque, dated 20th January 1932 was one distinct offence, and the forgery of the withdrawal cheque, dated 21st March 1932, was another distinct offence. There ought to have been two charges, or one charge with two heads. The allegation in the charge that accused thereafter withdrew the sums of money from the bank is no part of the offence of forgery and this portion should have been expunged before the case went to trial.
3. The point that arises at the outset is whether the trial is vitiated by the non-compliance with Section 233 of the Cr PC. In Gul Mahomed Sircar v. Chant Mandal (1) it was held that non-compliance with S. 233 rendered the whole trial illegal. The decision was similar in Budhai Sheikh v. Emperor (2) and by the Allahabad High Court in Emperor v. Fattu (3). Again in Johan Subarna v. Emperor (4) the trial was set aside as illegal when there had been joinder in one charge of two offences. On the other hand in Musai Singh v. Emperor (5) it was observed that a single head of charge relating to more than one offence of the same kind is defective, but a trial under such a charge is not bad unless the accused has been prejudiced thereby and in the case before them the Judges declined to interfere where all the offences charged had been committed on the same day and the same occasion, holding that the accused could not be prejudiced. In Ram Subhag Singh v. Emperor (6).this decision was followed in a case in which the accused was said to have committed riot and in the course of it to have caused hurt to two persons he was charged under one head with rioting and under a second head with causing hurt to both those persons, Rambilas and Khalifa. He was actually convicted of causing hurt to Khalifa, but acquitted of causing hurt to Rambilas, that is to say, he had the benefit of individual findings regarding each of the distinct offences charged. On similar lines was the decision in Moharuddi Malita v. Jadu Nath Mandal (7) where the case was that accused had on one date and as part of one transaction committed theft of paddy from the fields of the different persons. It was held that the defect in the charge was an irregularity. The three offences had for all practical purposes been kept separate and distinct by prefixing the letters (a), (b) and (c) to the names of the several persons whose paddy had been stolen. Contrary decisions were distinguished as being cases in which the distinct offences charged were committed at different times, and not as parts of one transaction. Reference is made in several of these decisions to the Privy Council case of Subamania Ayyar v. Emperor (8), which being a decision on Section 234 of the Cr PC is not directly in point here, but one passage in the judgment of their Lordships seems to me to be illuminating. After referring to the provisions as designed to prevent prejudice, inconvenience and embarassment both to Judges and accused, their Lordships say of their violation:
“It is likely to cause confusion and to interfere with the definite proof of a distinct offence which it is the object of all criminal procedure to obtain. The policy of such a provision is manifest and the necessity of a system of written accusation specifying a definite criminal offence is of the essence of criminal procedure.”
4. Failure to comply with S. 233 would think be condoned where the offences are committed in one transaction, where the evidence is identical and where care has been taken to consider each item of charge separately and arrive at a distinct finding regarding each one of the offences charged. I shall next examine the charge to the jury and see whether the Assistant Sessions Judge has taken care to do this. In the heads of charges he Says: “I shall now first explain to you the charge you are trying.” It does not appear that the charge itself was read or explained to the jury, or that they were told that there were two offences and they should record a separate finding on each. Further on he says:
“Now the first point for your consideration is whether the Nagri signature purporting to be of Chandradutt Trivedi on the cheques of 20th January Ex. 3(a) and of 21st March Ex. 3 are genuine or forged ones.”
5. After dealing with this point he says:
“In case you find that the signatures on the cheques are not of the Pandit, then the next question for your consideration would be whether the fraud was practised by any outsider upon the innocent staff of the bank or by an outsider in collusion with some members of the bank's staff, or the fraud was practised upon tbs bank by one or more members of its staff.”
6. Thereafter he continues:
“In case you find that some member of the bank's staff was involved in the fraudulent withdrawal of money from the bank, then the next question for your consideration is whether it was Sachchidanand Prasad the accused who forged the cheques,”
7. And he told the jury
“if you hold that the signature purporting to be of the pandit on Exs. 3 and 3(a) or on any out of them is in the writing of Sachchidanand, then this would be sufficient to establish the charge against the accused.”
8. From these extracts it is clear that throughout the charge the learned Assistant Sessions Judge instead of keeping the two offences charged distinct and separate, has lumped them together and asked the jury for a single finding instead of a separate finding regarding each offence. I have to point out with reference to the explanation to Section 537 of the Cr PC that the objection as to the frame of charge could and should have been raised at an earlier stage. On the other hand, the defect in the charge need not have been mischievous in itself had the distinct offences charged been kept separate in the summing up and had distinct and separate findings been taken from the jury. I feel therefore the necessity of considering anxiously the question whether I ought or not in this case to order a retrial. To assist in determining the question I should, think, examine the nature of the evidence. The detection of both the alleged offences took place simultaneously. The whole of the evidence of Pandit Chandradutt Trivedi applies equally to both charges. To some extent the same may be said of the expert's opinion and of the evidence in chief of the investigating Sub Inspector. But the evidence partly documentary and partly oral relating to the transaction of 20th January, that is to say, the evidence showing who was at the counter on that day, who wrote the cash book and the debit voucher, who compared the signature on the withdrawal form with the specimen signature, who wrote in on the withdrawal form the figure showing balance at credit of the depositor, who made the entry in the deposit register and who actually handed out the money, is not the same and should have been carefully kept distinct from the corresponding evidence with regard to the transaction of 21st March. The Assistant Sessions Judge ought to have asked the jury to come to a finding regarding the alleged offence of the former date with special reference to the particular part which the evidence showed that the accused took in the transactions of the bank on the date and similarly with regard to the offence of 21st March and the part played by the accused in the transactions of the bank on that date. In this connexion it has been pointed out during the hearing of the appeal that the Assistant Sessions Judge has nowhere pointed out to the jury that the stock of withdrawal forms in the bank used to remain according to the witness Mohammad Hussain in the custody of Mohammad Sayed, and not of accused. The matter may possibly be of importance in view of the evidence regarding the handwriting of the entry of withdrawal of Rs. 100 from the personal account of Pandit Chandradutt Trivedi at the bottom of p. 68 in the Deposit Register. The Accountant says that this entry is in the handwriting of Sayeed, whereas Sayeed says that it was in the handwriting of accused. It appears also in the evidence of Mohammad Hussain that in the withdrawal form of Rs. 100 the note of balance at credit of the depositor is in the writing of Sayeed and bears his initials. The evidence as to the corresponding entries made on 21st March is different. It is impossible to say whether a miscarriage of justice has been caused by the procedure followed in the present instance, without sifting the whole of the evidence on the record which is not the ordinary function of an appellate Court in a jury trial, but this much can be said that the procedure followed was in the words of their Lordships of the Privy Council likely to cause confusion and to interferfere with the definite proof of a distinct offence which it is the object of all criminal procedure to obtain.”
9. The result is that in my opinion the conviction cannot stand; it must be set aside and a retrial ordered. Before leaving the case I should refer to a contention of learned counsel for the appellant that the offence as charged was not made out because the withdrawal form is not a valuable security. In support of this contention he has referred to the definitions of “bill of exchange” and “cheque” in Sections 5 and 6 of the Negotiable Instruments Act of 1881. It is not necessary to discuss the point at length. S. 467 provides punishment for forgery not only of a document purporting to be a valuable security but also of any document which purports to give authority to any person “to receive or deliver any money.” The accused will have to be retried on properly framed charges, and care should be taken that they are in every respect in order. Another objection taken was against the procedure followed in permitting the witness Achhey Lal to be declared hostile and to be cross-examined by the Public Prosecutor with reference to previous statements made by him both to the committing Magistrate and to the Sub-Inspector of Police. The circumstances in which a witness may be cross-examined by the party calling him are not laid down in Section 154 of the Evidence Act, which leaves the matter entirely to the discretion of the Court and, in my opinion, there is no legal objection to such permission being freely granted. The mischief begins when the grant of permission itself is considered to be equivalent to an adjudication or to an expression of opinion by the Court adverse to the veracity of the witness instead of being treated merely as a permission to test the veracity of a witness, a permission which I think can hardly be refused when any witness makes an unexpected statement adverse to the case of the prosecution. The law is stated in Sohrai Sao v. King-Emperor* (9), and has been discussed at greater length in Prafulla Kumar Sarkar v. Emperor (10). have expressed my own views in Emperor v. Haradhan…Accused. (11) and given my reasons for not following Parmeshwar Dayal v. Emperor (12).
10. In the case of the witness Achhey Lal the accused has no grievance in the mere fact that permission was given to cross-examine the witness, but in the course of that cross-examination the Public Prosecutor was permitted to put to the witness questions suggesting that he had made certain statements to the Sub-Inspector of Police during the investigation. The Public Prosecutor was not entitled under Section 162 of the Cr PC to make any use whatever of those statements and the mere fact of their being put to the witness may possibly have caused some prejudice in the minds oft the jury. It is true that in the course of charging the jury the Assistant Sessions Judge correctly pointed out to them:
“This unsworn testimony of Achhey Lal before the Sub-Inspector is no evidence and the prosecution cannot rely on it,”
11. But the question ought never to have been allowed to be put. In Madodar Ram…Accused- v. Emperor…Opposite Party. (13) the Public Prosecutor had in his opening referred to a confession. It was found not to-have been recorded according to law and was-ruled out as inadmissible. Bucknill, J., said:
“I have no doubt whatever that statement may very reasonably be regarded as having been bound to affect in some measure the minds of the jury; however carefully the learned Judge may have (and quite rightly) endeavoured to, remove that impression from their minds.”
12. In Sumeshwar Jha v. Emperor (14) a statement by an accused which turned out to be inadmissible in evidence (as having been in the nature of a confession to a police officer) was deposed to and the Sessions Judge there and then noted that it was inadmissible and abstained from referring to it in his charge to the jury. As it was considered possible that the judgment of the jury in the case might have been affected by the statement in question a retrial was ordered. The evidence of Achhey Lal in the present case is comparatively unimportant and it would probably have been unnecessary to order a Tetrial for this only, but as a retrial is being ordered care should be taken that when this-witness is examined nothing should be used in his examination which the law-does not permit. I take this occasion also to point out that to tell a jury, as has been done in this charge,
“the great object for which you are empanelled is to find out whether you have such doubts”
13. (I.e, reasonable doubts) is not a very accurate statement of the position. The aim of a jury trial is not a psychological examination of the mentality of the juryman; it is concerned (in the words of the Privy Council) with ‘the definite proof of a distinct offence’ and would deprecate the use of language tending to divert the attention of the jury from the main issue to a subsidiary point.
K.S
14. Retrial ordered.