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Criminal Revisions Nos. 290, 291 and 315 of 1951, decided on 29th August 1951.

, S. 222 (2) ‑Three persons charged together with defalcation of an aggregate amount during a period less than a year‑Charge defective -Object of framing a charge.

Section 222 (2) cannot be applied to amalgamate all the different offences of criminal breach of trust committed by different accused into a single charge of defalcation for the aggregate sum.

Assuming that two more persons can be charged under section 222 (2) for misappropriation of an aggregate sum of money, it is necessary that the amount, should be composed of items jointly defalcated by them. If one person commits criminal breach of trust in respect of a certain amount and another commits criminal breach of trust in respect of another amount during a period of one year, they cannot both be charged for the aggregate amount under section 222 (2) of the Code. Each must be charged separately for the amount defalcated by him. Of course they can be tried in the same trial if permissible under section 239 but the charges must be separate.

The object of framing a charge in a criminal trial being to give notice to the accused as to what the prosecution case is, in order to enable him to defend himself, it seems essential that in framing a charge for criminal breach of trust, the mode in which the offence is alleged to have been committed, should be specified in the charge.

Girwar Narain v. Emperor 13 Cr. L J 506 ; K. Meeriah v. Emperor 32 Cr. L J 930 ; Appadurai Ayyar 17 Cr. L J 30 and Baburao Tatyrao v. Emperor, 38 Cr. L J 9 ref.

, S. 405‑Breach of trust by several persons‑All must be proved to have been entrusted with money.

Entrustment is an essential ingredient of the offences of criminal breach of trust and a man cannot be guilty of this offence unless he is entrusted with the amount. If section 34 is to be applied to punish several persons for the offence of criminal breach of trust, it is necessary to establish that all of them were entrusted with the amount. In the absence of entrustment a person may be guilty of abetment but cannot be charged and punished as a principal offender by the applica tion of section 34, for this section cannot create entrustment where there is none.

D. C. Roy for Petitioner in No. 291 of 1951.

Syed Modaris Ali, for Petitioner in No. 315 of 1951.

A. Salam Khan for Petitioner in No. 290 of 1951.

No one for the Crown.

All the three Rules arise out of the same case. Petitioner Abdul Kadim Choudhury was formerly an Inspector of the Agricultural Department. After the partition he was appointed Deputy Director of Agriculture for the district of Sylhet. Petitioner Abdus Salam Choudhury was his office Superintendent: and petitioner Abdul Bari was the Accountant‑cum‑cashier. The petitioners were convicted by a Magistrate of the first class under section 409/34 of the Pakistan Penal Code and sentenced as follows: Abdul Kadim Choudhury and Abdus Salam Choudhury to rigorous imprison ment for two years and a fine of Rs. 1,000 each, in default to rigorous imprisonment for six months more, and Abdul Bari to rigorous imprisonment for six months and also to a fine of Rs. 1,000, in default to rigorous imprisonment for six months more. Their appeals to the Sessions Judge of Sylhet having been dismissed, they obtained these Rules calling upon the Deputy Commissioner of Sylhet to show cause why the order of conviction and sentence should not be set aside.

The Rules are directed against the legality of the charge. They were charged under the provisions of section 222, clause (2) of the Code of Criminal Procedure for defalcation of an aggregate sum of Rs. 26,189 during the period from the 1st September 1947, to the 1st March 1948. Section 405 of the Penal Code which defines criminal breach of trust, lays down several modes of defalcation : (1) dishonest misappropriation, (2) conversion, (3) dishonest use or disposal in violation of any direction of law prescribing the mode in which the trust is to be discharged or of any legal contract, etc., and (4) wilfully allowing any other person to do the same. The object of framing a charge in a criminal trial being to give notice to the accused as to what the prosecution case is, in order to enable him to defend himself, it seems essential that in framing a charge for criminal breach of trust, the mode in which the offence is alleged to have been committed, should be specified in the charge. It is clear that in the charge framed in this case no such specification was made. In the absence of such speci fication, obviously the accused must feel difficulty in defending himself. Apart from that, section 222, clause (2) does not seem to be applicable to the facts of this case. The subsection is this: "When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be suffici ent 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, etc." In the case of Girwar Narain v. Emperor 13 Cr. L J 506 it was held that the subsection refers to a single accused. The head note is this

"In section 222 of the Criminal Procedure Code, the word ing refers to a single accused; and this must be so because it is impossible to hold that two persons can be guilty of mis appropriating one and the same parcel of money; section 239, therefore, has no application, because more than one person cannot be charged with the offence of misappropriation,

"If two persons are responsible for a misappropriation, the charges against them must be of misappropriation in one case and of abetment in the other. It is, of course, open to the Court to frame charges in the alternative."

"In that case two persons‑one a Tahsildar Patwari and the other, a Naib Patwari‑were charged with criminal breach of trust in respect of an aggregate sum of Rs. 53‑11‑41. If the view taken in that case is accepted as correct, then obviously the charge in this case cannot be supported. The case of Gif war Nat a in v. Emperor (Supra) was followed in K. Meeriah v. Emperor 32 Cr. L J 9 0. Otter J. who decided the case, however, guarded himself against being supposed to lay down the proposition that two or more persons can never be charged with the misappropriation of the same sum of money. The contrary view was taken in In re. Appadurai Ayyar 17 Cr. L J 30, Baburao Tatyarao v. Emperor 38 Cr. L J 9. Assuming but not deciding that two more persons can be charged under section 222 (2) for misappropriation of an aggregate sum of money, it is necessary that the amount, should be composed of items jointly defalca ted by them. If one person commits criminal breach of trust in respect of a certain amount and another commits criminal breach of trust in respect of another amount during a period of one year, they cannot both be charged for the aggregate amount under section 222 (2) of the Code. Each must be charg ed separately for the amount defalcated by him. Of course they can be tried in the same trial if permissible under section 239 but the charges must be separate. In the present case the finding is that the three petitioners separately defal cated parts of the aggregate sum and two of them jointly defal cated a part of the same. Section 222 (2) cannot be applied to amalgamate all the different offences of criminal breach of trust committed by different accused into a single charge of defalcation for the aggregate sum as has been done in this case. The learned Sessions Judge seems to have thought that the defect was cured by the application of section 34. But the addi tion of that section to the charge does not improve, the posi tion. If different persons misappropriate different sums of money this section does not make them jointly liable for the total amount misappropriated.

It is necessary to observe further, that entrustment is an essential ingredient of the offences of criminal breach of trust and a man cannot be guilty of this offence unless he is entrus ted with the amount. If section 34 is to be applied to punish several persons for the offence of criminal breach of trust, it is necessary to establish that all of them were entrusted with the amount. In the absence of entrustment a person may be guilty of abetment but cannot be charged and punished as a principal offender by the application of section 34, for this section cannot create entrustment where there is none. It appears from the judgment of the Court below that before the partition the Cashier and Accountant used to receive all the cash and deal with the same. After the partition this practice was abandoned and money used to be received from various sources sometimes by tire Deputy Director of Agriculture himself, sometimes by Abdus Salam Choudhury, the Office Superintendent and sometimes by Abdul Bari, the Accountant‑cum‑cashier. It does not appear that any money that was received by the Deputy Director of Agriculture, ever passed to the hands of the Cashier or Abdus Salam or they had any dominion over it. Similarly, it does not appear that Abdus Salam had any dominion over the money that was received by the Cashier. If these persons did not receive the money, it is meaningless to say that they were entrusted with it. It is quite possible that the three, petitioners abetted one another in committing cri minal breach of trust but it is clear open the facts which I have just now stated that they cannot be punished as principal offenders in respect of the aggregate sum for which the charge has been laid against them in this case. In these circumstances, it seems to us that the convictions and sentences passed upon the petitioners must be set aside.

The result, therefore, is that we set aside the convictions and sentences of the three petitioners and send the cases back and direct that the re‑trial be held by some other Magistrate to be appointed by the Deputy Commissioner of Sylhet, according to law. The petitioners in Revision Cases Nos. 290 of 1951 and 291 of 1951 will continue on the same bail. The petitioner Abdul Bari, will be allowed bail on furnishing security to the satisfaction of the Deputy Commissioner of Sylhet.

---‑I agree.

A. H. Rule made absolute.

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