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Criminal Appeal No. 98 of 1950, decided on 26th Septem ber, 1950.

, S. 222 (2) Applies only to offence of criminal breach of trust or dishonest misappropriation of money‑Does not apply to falsification of accounts.

Section 222 (2) of the Cr. P. C. applies only to cases where the accused is charged with criminal breach of trust or dishonest misappropriation of money, when it shall be sufficient to specify the gross sum in respect of which the offence is alleg ed to have been committed, and the dates between which the offence is alleged to hive 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 section 234 provided the time included between the first and last of such dates shall not exceed one year, and that it does not apply to a case where the accused is charged with falsification of accounts or for omitting to enter into account books the amounts alleged to have been defalcated by him.

Rama Behari Das v. Emperor, 411 L R Cal. 272 ; Emperor v. Manmant K. Mehta, 49 I L R Bom. 892 ; King Emperor v. Ramautar, 211 L R Pat. 113 rel.

Michael John v. King Emperor, 10 I L R Pat. 463 ; Kashiram Jhunjhunwala v. The Firm of Hardat Rai Gopal Rai, 39 C W N 703 dissent form.

, Ss. 234, 235 Several acts of defalcations with corresponding falsifications of accounts‑Joinder illegal.

An offence under section 409 of the Penal Code is not an offence of the same kind as an offence under section 477‑A of the Penal Code. "Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special or local law." Section 234 does not, therefore, apply to a case where several defalcations with corresponding falsifications of accounts are sought to be tried together under section 409 and section 477‑A, Pakistan Penal Code

Nor would such a joinder of charges be legal under section 435, Cr. P. C.

The essential ground for applicability of this section is that the offences which are sought to be tried have been committed in course of the same transaction. A charge of defalcation can no doubt be tried under this section with a charge of falsifica tion of the corresponding accounts to cover up the defalcation, because, in such a case the defalcation and the falsification are parts of the same transaction. But an act of misappropriation and an act of falsification in respect of a different act of misappropriation cannot be tried in the same trial.

‑Misdirection‑Circumstantial evidence‑Omission to direct that circumstances of case were incapable of explanation on any other hypothesis than that of guilt of accused‑Charge bad ‑Conviction set aside.

No direction was given by the judge in so far as circum stantial evidence was concerned that the circumstances of the case were incapable of explanation ' on any other hypothesis than that of the guilt of the appellant :

Held that the judge when dealing with this aspect of the case, should have given a specific direction to the Jury and left the matter thereafter for their consideration.

The conviction and sentence therefore could not be upheld on account of misdirection to the jury.

D. C. Roy, for Appellant.

Salahuddin Ahmed, for Deputy Legal Remembrancer, for Crown.

--The appellant was placed on his trial before Mr. M. Ibrahim, Assistant Sessions Judge, Dacca, to answer charges under sections 409/477‑A of the Pakistan Penal Code. The trial was held with the aid of a jury who found the appel lant unanimously guilty under both the charges. The learned Assistant Sessions judge thereupon convicted the appellant under section 409 of the Code and sentenced him to suffer rigorous imprisonment for 7 years and also convicted him under section 477‑A of the Code and sentenced him to suffer rigorous imprisonment for 4 years. The sentences were ordered to run concurrently.

The case for the prosecution was that the appellant was the agent of the Sylhet Industrial Bank at Narayanganj from the time of its inception in 1945. The said bank was amalgama ted with the Mahalaxmi Bank under orders of the Calcutta High Court. The Sylhet Industrial Bank applied to the Reserve Bank of India for making the said bank a schedule bank. Thereupon the Inspector of the Reserve bank of India went to inspect the head office and the branches of the said bank. On the 21st November 1946, the complainant Mr. J. M. Das General Manager, and Mr. R. N. Purkayastha, an officer of the Audit Department, came to inspect the branch of the said bank at Narayanganj and in course of their inspection found drafts Nos. 2201 to 2300 and 2401 to 2500 and some cheques of that branch missing. The appellant could not give any satisfactory explanation for the same. The complainant then sent a circular to all the branches not to make payment of the missing drafts and cheques, and payments were stopped. The holders of some missing drafts instituted criminal proceedings against the bank and its officers as a result whereof the bank had to make payment of Rs. 92,000 on 9 of the missing drafts issued by the appellant. In addition, a further sum of Rs. 19,000 had already been paid by different branches of the bank on 4 more drafts two of which were missing drafts. The total sum of Rs. 1,11,000, according to the prosecution case, which was paid by the bank to different draft‑holders of 13 drafts had been defalcated by the appellants with the help and connivance of the accountant and other employees of the Narayanganj branch of the said bank. The prosecution alleged further that the appellant had received that amount personally from the draft‑holders when the drafts were issued but did not deposit the said amount in the bank and had not entered the said amount in the bank's account books. On the 2nd December 1946, the appellant, was placed under suspension and the complainant took over charge from the appellant on the 4th December 1946. When charge was being made over, the appellant handed over 76 released drafts‑and some pay orders to him and all these drafts bore the signature of the appellant as the agent and some were written by the accountant Bidyabinode Roy while others were written by the appellant himself. The amounts mentioned in those drafts were not entered in the books of account of the bank. It is alleged that about 20 or 25 lakhs of rupees were the rolling funds in connection with these drafts and the appellant used to raise funds for the Chameli Soap Factory by issuing these drafts without authority. The appellant was also alleged to have done other acts detrimental to the interest of the bank with which we are not concerned.

In the Sessions Court, the appellant contended that he had not defalcated any money and had not falsified any account and that whatever he did in connection with the bank was done in the interest and for the benefit of the bank and that he had not done anything dishonestly and without authority.

Charge‑sheet was submitted against the appellant and 3 others, namely, Satyendra Nath Roy, an employee of the Narayanganj branch of the said bank, Bidyabinode Roy, the accountant of that branch and one Keshabnath Chakrabarty, proprietor of the Chameli Soap Factory at Narayanganj, as several irregularities in the course of inspection of the said bank at Narayanganj were noticed in its dealings with the said Soap Factory. Bidyabinode Roy and Keshabnath Chakrabarty absconded to the Indian Union during the enquiry in the lower Court and Satyendra Nath Roy was discharged. The appellant was the only accused committed for trial to the Court of Sessions and he was convicted and sentenced as already stated above.

On behalf of the appellant Mr. Dinesh Chandra Roy has argued strenuously that the trial was illegally held inasmuch as the charges under sections 409 and 477‑A of the P. P. C. could not be held jointly on the allegations made by the prose cution and that the charge under section 477‑A being for more offences than 3 committed within the course of a year, the trial was illegally held to the prejudice of the appellant. The charges framed against the appellant are the following

" First.‑That you, between the 12th October 1946, and 25th November 1946, both days inclusive, at Narayanganj, P. S. Narayanganj, being the agent of the Narayanganj branch of the Sylhet Industrial Bank, in the way of your capacity and busi ness as such and being entrusted with (or with dominion over) certain property, namely, cash amounting to Rs. 1,11,000 only, by different holders of drafts issued by you committed criminal breach of trust in respect of the said sum of Rs.1,11,000 and thereby committed an offence punishable under section 409 of the Indian Penal Code and within the cognizance of the Court of Sessions.

" Secondly.‑That you between the same dates and at the same place, being an officer of the Sylhet, Industrial Bank being the agent of its Narayanganj branch wilfully and with the intent to defraud omitted some martial particulars from the account books of the said branch of the said bank, namely, omitted to enter in the account books of the said branch of the said bank, the amount of Rs. 1,11,000 only which had been received by you for or on behalf of your employer‑the Sylhet Industrial Bank and thereby committed an offence punishable under section 477‑A of the Indian Penal Code and within the cognizance of the Court of Sessions."

According to the prosecution, criminal breach of trust to the extent of Rs. 1,11,000 was committed which amount was in respect of 13 drafts which were issued by the appellant after receiving the value thereof from the constituents and without having the said amount deposited in the bank or entries apper taining to the same being made in the account books of the said bank. The drafts in question are the following

(1) Draft No. 2241, dated 22‑10‑46, for Rs. 5,000 favour ing Associated Bank of Tripura, Ltd., drawn on the Clive Street Branch, Ext. 17 paid on 20‑1‑47 by Narayanganj Branch.

(2) Draft No. 2237, dated 21‑10‑46, of Rs. 10,000 favour ing Basanta Kumar De drawn on the aforesaid Clive Street Branch, Ext. 17 (1) paid on 14‑1‑47.

(3) Draft No. 2255, dated 20‑11‑46, for Rs. 5,000 favouring Paresh Chandra Roy drawn on the Clive Street Branch, Ext. 17 (2).

(4) Draft No. 2256, dated 21‑11‑46, for Rs. 5,000 favouring Paresh Ch. Roy drawn on the Clive Street Branch, Ext. 17, (3).

(5) Draft No. 2257, dated 21‑11‑46, for Rs. 5,000 favouring Paresh Ch. Roy drawn on the Clive Street Branch, Ext. 17 (4).

(6) Draft No. 2260, dated 25‑11‑46, for Rs. 20,000 favour ing East Bengal Commercial Bank, Ltd., drawn on the Clive Street Branch, Ext. 17 (5) paid on 16‑12‑46.

(7) Draft No. 2252, dated 16‑11-46, for.Rs. 20,000 favour ing C. Nandalal & Co. drawn on Clive Street Branch, Ext. 17 (6).

(8) Draft No. 2259, dated 22‑11‑46, for Rs. 10,000 favour ing Tarani Gupta Choudhary drawn on the Dacca Branch, Ext. 17 (7) paid on 21‑12‑46.

(9) Draft No. 2258, dated 22‑11‑46, for Rs. 12,000 favour ing Tarani Gupta Choudhury drawn on the Dacca ' Branch, Ext. 17 (8) paid on 21‑12‑46.

(10) Draft No. 2222, dated 12‑10‑46, for Rs. 6,000 favour ing S. N. Roy's father Sweendra Nath Roy drawn on the Clive Street Branch, Ext. 17 (12).

(11) Draft No. 2253, dated 16‑11‑46, for Rs. 5,000 favour ing Paresh Ch. Roy drawn on the Habibganj Branch, Ext. 17 (9).

(12) Draft No. 1192, dated 13‑11‑46, for Rs. 5,000 favour ing Paresh Ch. Roy drawn on the Silchar Branch, Exh. 17(10)

(13) Draft No. 1183, dated 13‑11‑46, for Rs. 3,000 favouring Paresh Ch. Roy drawn an the Karimganj Branch, Ext. 17 (11).

At the outset we are met by the objection raised by Mr. D. C. Roy that the trial is wholly void by reason of misjoinder of charges and that this is so clear from the authorities placed before us. Reliance has been placed on certain decisions of different High Courts in India and out of them reference may be made to the case of Raman Behari v. Emperor. 411 L R Cal. 722, wherein a Division Bench held that section 222 (2) of the Criminal Procedure Code refers to cases of criminal breach of trust or dishonest misappropriation of money, and cannot be applied to a case under section 477A of the Penal Code. It was further held that section 233 of the Code must be strictly fol lowed save where the law itself provides an exception and a joinder of three charges under section 409 with three under section.477‑A of the Penal Code relating to different transac tions is not warranted by any of the exceptions provided in the Code, and is illegal, and such a misjoinder is absolutely fatal to the trial. In the case of Emperor v. Manmant K. Mehta, 49 I L R Bom. 892, it was held by a Division Bench that the offences of criminal breach of trust and of falsification of ac counts (sections 408 and 477‑A, Indian Penal Code) are not offences of the same kind, within the meaning of section 234 of the Criminal Procedure Code. It was held further that where three defalcations are committed on three different occasions, the false entries connected with one defalcation cannot be said to form part of the same transaction with the other defal cations or falsifications connected with them, within the mean ing of section 235 of the Cr.P. C. In the case of King‑Emperor v. Ramautar Lal, 21 1 L R Pat. 113 the facts were that the accused was charged under section 409 of the Penal Code, 1860, in respect of Rs. 76‑9‑6 including three different sums, and reference to the three different sums was thereafter omitted from the charges as framed at the trial, and the Sessions judge in the charge to the jury, under section 409 observed that the accused as public servant had committed criminal breach of trust in respect of Rs. 76‑9‑6 though evidence to fit this charge had failed, and the accused was further charged under sec tion 477‑A, Penal Code, for committing a series of falsification of accounts to conceal the criminal breach of trust in respect of Rs. 76‑9‑6. Held, that the accused was entitled to be acquitt ed of the charge under section 409 as framed, as also of the charge under section 477‑A. The authorities are thus clear that section 222 (2) of the Criminal Procedure Code applies only to cases where the accused is charged with criminal breach of trust or dishonest misappropriation of money, when it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates bet ween 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 section 234 provided the time included between the first and last of such dates shall not exceed one year, and that it does not apply to a case where the accused is charged with falsification of accounts or for omitting to enter into account books the amounts alleged to have been defalcated by him.

Mr. Salahuddin, appearing on behalf of the Crown has confessed candidly that if he cannot succeed in bringing the charge under section 477‑A of the Code within the ambit of sec tion 235 of the Code of Criminal Procedure, then that charge as framed cannot be supported. He has argued on the line that the charge under section 409 really relates to one transaction which resulted in a defalcation of Rs, 1,11,000 being made and the charge under section 477‑A is the corresponding charge relating to the omission of the entries in respect of the details of that one transaction of defalcation. He relies for support on the case of Michael John v. King‑Emperor 10 I L R Pat. 463, where in a Division Bench held that it is quite lawful to charge a per son under section 408, Penal Code, 1860, with criminal breach of trust in respect of a lump sum of money made up of three different items and to link with that a series of charges of falsification of accounts under section 477‑A each of which charges under section 477‑A is united with one of the items of embezzlement under the charge under section 408, provided the charges of embezzlement under 403 are linked together into one sum and that linking together also effects the charges of falsification. He has also relied on the case of Kashiram Jhunjhunwalla v. The Firm of HardatRai Gulab Rai, 39 C W N 703, wherein it was held when in respect of a series of defalca tions (in this case seven), committed within one year, an accused is charged by virtue of the provisions of section 222(2) Criminal Procedure Code, with one offence under section 408, I. P. C. namely, that of misappropriating the total of the sums involved, the whole series of such operations constitute one transaction and, therefore, by virtue of the provisions of sec tion 235 (1); Criminal Procedure Code, the accused may law fully be further charged with, and tried at the same trial for, offences under section 477‑A, I.P.C. of falsification, committed in respect of some of the items (in this case two) of the em bezzlement which is the subject‑matter of the charge under section 408, I. P. C. In the cited authority, the case reported in 41 Cal. 722 ; 49 Bom. 892 and 21 Pat. 113 were not con sidered but the case reported in 10 Pat. 463, was considered and followed. In the present case it is impossible to hold that the appellant started with the fixed purpose of defalcating Rs. 1,11,000. He committed the defalcations as occasions arose until he was prevented by external causes from committing further defalcations. Each defalcation was, therefore, a sepa rate offence not committed in the course of the same transac tion. In respect of each defalcation, according to the prose cution case, he was responsible for the omission of relevant entries being made in the relevant account books. It is, there fore, not possible to hold that the case is covered by sec tion 235 (1) of the Criminal Procedure Code which 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 cases reported in 41 Cal. 722 ; 49 Bom. 892 and 21 Pat. 113 are to the point, and we respectfully agree with the views taken therein.

Mr. Roy has also commented on the fact that in his charge to the Jury, the learned Assistant Sessions Judge, while co- considering the value of circumstantial evidence, has merely placed before the jury certain circumstances such as the missing of the draft form books, the body of some of the drafts being written by the appellant himself, the money in respect of the drafts not being entered into the account books and the appellant not having followed the prescribed, procedure when issuing the drafts from which he desired the jury to come to a decision as regards the innocence or guilt of the appellant. These circumstances were referred to as there was no positive evidence that the appellant had received the money in respect of each of the drafts from the constituents. Mr. Roy's objection is that no direction was given by him in so far as circumstantial evi dence was concerned and he should have specifically told them that the circumstances of the case were incapable of explanation on any other hypothesis than that of the guilt of the appellant. He, therefore, argues that in the absence of such a specific direction, the charge to the jury was bad and the conviction of the appellant should be set aside. We are of opinion that the learned Assistant Sessions Judge, when dealing with this aspect of the case, should have given a specific direction to the jury and left the matter thereafter for their consideration. We find that the convictions and sentences passed on the appellant cannot be upheld on account of misjoinder of charges and misdirection to the jury. The convictions and sentences are, therefore, set aside. In view the fact that this is an important case, we order a retrial according to law either by the learned Sessions Judge, Dacca, or by any other Judge to be nominated by him.

---‑I agree. It is not necessary for me to enter into detailed discussion of facts as my learned brother has already sufficiently discussed them in the judgment which he has just now pronounced. The appellant was tried in the Court of Sessions on two charges, one under section 409 of the Penal Code and the other under section 477‑A of the Penal Code. The jury unanimously found him guilty under both the charges and the learned judge accepting that verdict has convicted the appellant under both the sections and sentenced him to rigorous imprisonment for 7 years under section 409 of the Penal Code and to rigorous imprisonment for 4 years under section 477‑A of the Penal Code. He has ordered that the sentences shall run concurrently. Mr. Dinesh Chandra Roy who has appeared on behalf of the appellant has assailed the conviction on the ground of misjoinder of charges. In support of his contention, he has relied on the case of Raman Behari Das v. Emperor (supra) Emperor v. Mannant K. Mehta (supra) and certain other cases in which it has been held that joinder of several charges of embezzlement and of corresponding charges of falsification of accounts together in the same trials is illegal. This contention on the facts of this case is full of substance and must be conceded.

Section 233 of the Cr. P. C. provides that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239. It may be said here that sections 236 and 239 do not call for consideration in this case. It is obvious that according to section 233 the charge in respect of every distinct offence shall be tried separately unless the exceptions mentioned in the section apply. It is not contended by Mr. Salahuddin who has appeared for the Crown that the exception provided in section 234 can apply to this case Section 234 permits trial of 3 offences of the same kind at one trial, if these are committed within the space of 12 months from the first to the last. An offence under section 409 of the Penal Code is obviously nor an offence of the same kind as an offence under section 477‑H of the Penal Code. What are offences of the same kind 15 defined in section 234 itself. In subsection (2) of this section B it is stated : "Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special or local law." Section 234 does not, therefore, apply to this case. The question then arises whether the trial can be supported under section 235 of the Cr. P. C. Only sub‑clause (1) of section 235 is relevant to this discussion. This sub‑clause provides: "If; in one series of acts so connected together as to form the same transaction, more offences than one are commit ted by the same person, he may be charged with, and tried at one trial for every offence." The essential ground fore applicability of this section is that the offences ‑which are. sough to be tried have been committed in course of the same transaction. A charge of defalcation can no doubt be tried under this section with a charge of falsification of the corres ponding accounts to cover up the defalcation, because, in such a case the defalcation and the falsification are parts of the same transaction. But an act of misappropriation and an act of falsification in respect of a different act; of misappropriation cannot be tried in the same trial. It this case there are two charges, one under section 409 and the other under section 477‑A. Now the charge under section 409 is not a charge in respect of a single act of defalcation. The charge is in respect of 13 acts of defalcation lumped together in a single charge under the provision of section 222, subsection (2) of the Cr. P. C. It is stated by the prosecution that the accused who was the agent of the Narayanganj branch of the Sylhet Industrial Bank, Ltd, issued 13 drafts on various dates between the 12th October, 1946, and the 25th November, 1946, covering Rs. 1,11,000 for value received from the pur chasers of these drafts. It is the prosecution case that the appellant instead of crediting this amount in the accounts of this bank misappropriated it. The charge against the accused is for the defalcation of this Rs. 1, 11,000 covered by the aforesaid 13 drafts. Section 222, subsection (2) says 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 9r exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234." The last words of the above quotation are important. A charge framed under section 222, subsection (2) is to be deemed to be a charge of one offence for the purpose of section 234 only. It has no bearing as regards section 235 of the Cr. P, C. The 13 items of misappropriations have to be taken as 13 distinct offences so far as section 235 is concerned. They cannot be regarded as one offence if the trial is to be defended on the strength of section 235. It is clear to my mind that as these 13 items of alleged defalcation were distinct offences committed on different dates in different circumstances they cannot be taken as part of same transaction. Now as to the charge under section 477A: This charge relates to 13 omissions to enter the aforesaid 13 items of money in the accounts on various dates. These 13 items cannot be lumped together in one charge. Section 233 as already stated provides that for every distinct offence of which a person is accused there shall be a separate charge. The only exception to the rule is the one provided in sec tion 222, clause (2), but that exception does no obviously apply to a charge of falsification of account because it is distinctly stated in that section that it applies only in case of breach of trust or dishonest misappropriation of money. It was not legal to lump all these 13 items into one charge of falsification as has been done in this case. All these items must be regarded as 13 distinct offences of falsification. Obviously an act of misappropriation and an act of falsification in respect of a different act of misappropriation are not parts of the same transaction. The joinder of the charges has been clearly illegal. Such an illegality vitiates the trial and this Mr. Salahuddin also does not dispute.

A. H. Retrial ordered.

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