Abdur Rahim vs Emperor

Dhavle, J.—In October 1928 the Commissioner of Ranchi sanctioned a proposal of the Deputy Commissioner of Ranchi that the assessment of the chaukidari-tax in the district under the Chota Nagpur Rural Police Act be revised with a reduction of 8� per cent, and brought into force on 1st January 1930. In November 1929 the Commissioner also sanctioned the proposal of the Deputy Commissioner to postpone the revision of the chaukidari assessment for one year from 1st January 1930. The petitioner was the Chaukidari Tahsildar of village Hundru in the district, and it has been found that he went to the village in Aghan of last year and told the villagers that their chaukidari assessment had been increased, but that if they paid him the excess for one year he would let the old rate stand. On this representation he realized Rs. 60 from the villagers through Jaimasih and Manasah and Rs. 32 through Bhikha similarly. The charge on which the petitioner was tried was that he "in last Aghan and Pus, at village Hundru, Police Station Ranchi, cheated several tenants of village Hundru, namely, Birsa, Mahadeo, Karam Singh, Bisua and others by dishonestly inducing them to deliver to him Rs. 60 through Jaimasih and Manasah who realized the money from Karan Singh and others; and Rs. 32 through Bhikha who realized the money from Birsa and others and Rs. 4-6-0 paid to him by Bisua Pahan; and which was the property of the above-mentioned tenants; and thereby committed an offence punishable u/s 420. I.P.C....."

The trying Magistrate gave the petitioner the benefit of the doubt as regards the third and last item of Rs. 4-6-0, but found the charge made out in respect of the other two items, and sentenced him to six months'' rigorous imprisonment and a fine of Rs. 100 with three months imprisonment in default. There was an appeal to the Judicial Commissioner of Chota Nagpur, which was unsuccessful.

It was urged before the learned Judicial Commissioner, and it has been urged here, that the trial was thoroughly illegal on account of the improper joinder of a very large number of separate acts of cheating. It appears from the evidence of Jaimasih that he realized the Rs. 60 from about 57 villagers of Hundru and Bhikha who collected Rs. 32 on account of the petitioner, gives in his list the names of 25 villagers from whom he had realized the money. It was not urged before the learned Judicial Commissioner, and it has not been urged before me, on behalf of the Crown, that Sub-section 2, Section 222, Criminal P.C., has any application to charges of cheating; that provision of the law is confined to charges of criminal breach of trust or dishonest misappropriation of money, and has plainly no application to the other charges: vide Raman Behary Das v. Emperor [1913] 41 Cal. 722 and Raja Khan v. Emperor [1904] 1 A.L.J. 599. The learned Judicial Commissioner held that the provisions of Section 235, Criminal P.C., were sufficiently wide to cover the facts of the case, and that all the alleged acts of cheating were committed in the course of one and the same transaction, so that it was permissible under Sub-section 1, Section 235, Criminal P.C., to try the petitioner for all of them at one trial. The expression "the same transaction" has not been defined in the Code, and it has been repeatedly held that it is neither necessary nor advisable for the Courts to define it, and that it must depend on the facts of each particular case whether offences are to be regarded as forming parts of one and the same transaction. The expression also occurs in Section 239 of the Code; and in Emperor v. Bhima [1916] 38 All. 311 the conflict of opinion in the Calcutta and Bombay High Courts on the question of whether stealing and receiving stolen property form one transaction referred to a conflict which was finally set at rest by one of the amendments of the section in 1923. That there is still room for difference of opinion regarding what constitutes one and the same transaction for the purpose of Section 239 is clear from the interesting observations in Samiullah Saheb v. Emperor AIR 1927 Mad. 177 , where Rafi-uz-zaman Khan and Others Vs. Chhotey Lal, is referred to.

We are of course not concerned in the present case with the meaning of the expression "the same transaction" in Section 239, but there is no reason to imagine that the expression is used in any different sense in Section 235. The illustrations to Sub-section 1, Section 235, largely refer to cases where one offence is committed in the course of or as a preliminary to another. There are however two exceptions, Illus. (d) and (h), where offences are regarded as "so connected together" as to form the same transaction, in the case of the former because they all came to light together, and in the case of the latter because they were all committed at one and the same time. The mere fact that two offences are committed at the same time or place is however neither necessary nor decisive as an indication of their being so connected as to form the same transaction; vide Krishnasami Pillay v. Emperor [1902] 26 Mad. 125. Nor are offences so regarded merely because they may be inspired by one and the same general object, such as that of deceiving the public or plunder: Choragudi Venkatadri v. Emperor [1909] 33 Mad. 502 and Ram Narain v. Emperor [1919] CriLJ 657. In the former of these cases it was held that distinct acts of embezzlement committed in the course of several years by the managers of a company formed with the object of defrauding the public cannot be said to form part of the same transaction by reason of such general object, that for separate acts to form parts of one and the same transaction, the purpose in view must be something particular and definite and that where each act is a completed act in itself and accomplishes the original general design of defrauding the public as far as it goes, such acts cannot be tried together u/s 235(1). It was pointed out in this case that Courts should give full effect to the spirit of the provisions of the Code instead of straining them to cover doubtful cases. In the case from Ram Narain v. Emperor [1919] CriLJ 657, Heaton, J. pointed out the distinction between acts committed in pursuance of a conspiracy and acts committed merely in pursuance of a general policy of deception, plunder and the like--the former may form one transaction, but not the latter.

In the present case, the only circumstance that could at all be said to give a unity to the 80 or 90 acts of cheating covered by the charge framed against the petitioner is the petitioner''s visiting the village on one occasion and telling the villagers that if they paid the excess to him, he would let the old rate stand, the fact that cheated them all in the course of a month or two is as indecisive in this connexion as the circumstance that the moneys were paid by the residents of one village. An offence u/s 420, I.P.C., does not consist merely in a fraudulent or dishonest representation but also requires the delivery of property by the victim. We do know in the present case that the petitioner''s misrepresentation succeeded with a large number of villagers, but there is naturally nothing in the judgments below to show that the misrepresentation did not succeed in the case of some other villagers. The payments by the villagers have not been shown to have been made at one and the same time nor even at the same place, Manger, P.W. 6, for instance paying his excess to the petitioner himself in Duranda. If more than 50 villagers paid to Jaimasih and Manasah, who passed the money on to the petitioner, there were 25 who paid to Bhikha. The profusion of details led to some confusion which the learned Judicial Commissioner has referred to in dealing with the payment of Rs. 8 by Mahadeo and the payment of Rupees 9-15-0 by Budha which he seems to have collected from eleven tenants.

The nearest illustration to the facts of this case under Sub-section 1 to Section 235 is illus. (h) and it seems to me that that illustration itself being a case where the offence of criminal intimidation was committed in respect of three persons, not in part but wholly at one and the same time makes it extremely doubtful, to say the least, whether the numerous acts of cheating in the'' present case should be regarded as parts of one and the same transaction. Each cheating was complete in itself when the victim parted with his money and the general design of the petitioner to avail himself of the splendid opportunity offered by the order to postpone the revision and the apparently slack supervision to which he was subjected from the chaukidari office at headquarters and cheat the villagers, was accomplished in respect of each villager when the latter paid irrespective of whether others did or did not pay. Joint trials, except where they are clearly authorized by the law, do not save time in the long run and further the ends of justice, and it has been repeatedly held that where the legality of a joinder of charges is doubtful, the correct course is to hold a trial clearly authorized by the law. In Kalika Prasad v. Emperor [1915] 38 All. 42 a conviction was set aside on the ground of an unauthorized joinder of charges even though the accused was in no way prejudiced by the manner in which the charges were framed. In the present case the charge as framed against the accused covered no less than 80 separate acts of cheating. It seems to me impossible to let the conviction stand. In my opinion the acts of cheating were "distinct, separate and wholly unconnected" to adopt the words of Atkinson, J., in Sital Prasad v. Emperor [1918] 44 I.C. 47 where also the motive or object underlying the commission of all these offences was the same, namely unlawful gain.

The application is accordingly allowed, the conviction of the petitioner set aside and the petitioner''s retrial in accordance with the law directed. The petitioner will be released from jail, unless he is undergoing imprisonment for some other reason, and it will be open to the trying Magistrate in his discretion to admit him to bail.