Deep Chand vs State of Haryana

S.S. Grewal, J.

Deep Chand petitioner was tried and convicted by the trial Magistrate vide his order dated 26101985 under Section 409 of the Indian Penal Code for committing Criminal breach of trust during the period 821972 to 1051976 in respect of Rs. 992.50 P entrusted to him as an employee of the District Welfare Office, Jind. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/. In default of payment of fine he was ordered to undergo further rigorous imprisonment for five months. On appeal, maintaining the conviction of the present petitioner, the Additional Sessions Judge, Jind, reduced the sentence of imprisonment from rigorous imprisonment for one year to rigorous imprisonment for six months. The sentence of fine imposed by the trial Magistrate was maintained. However, the petitioner in default of payment of fine was ordered to undergo rigorous imprisonment for three months. Aggrieved against the orders of the Courts below Deep Chand petitioner filed the present petition.

In brief facts relevant for the disposal of this petition are that the petitioner was employed as a peon in the office of District Welfare Officer, Jind during the aforesaid period. Kitab Singh PW obtained loan from the State of Haryana through District Welfare Officer, Jind. He paid Rs. 100/ to the present petitioner towards part payment to the sum amount. The petitioner, however, did not deposit the amount in the account of Kitab Singh PW through Money JUDGMENT after informing him that he could not deposit the said amount in the Treasury. Further enquiries revealed that the petitioner similarly received various amounts from other persons who borrowed the amount from the State of haryana through the District Welfare Officer, Jind.Inspector Om Parkash, State Vigilance Burea conducted enquiries into these allegations and submitted his report concerning the commission of temporary embezzlement of Rs. 100/ and permanent embezzlement of Rs. 575/. On the basis of the said report formal information report was registered. After (sic) the investigation, the petitioner was challaned, tried and convicted as stated above.

The learned counsel for the parties were heard.

The learned counsel for the petitioner submitted that, in the instant case, the learned trial Court has gravely erred in law in framing single charge against the petitioner with regard to the alleged embezzlement which took place during the period 821972 to 1051976 in direct violation of the mandatory proviso to sub section (2) to Section 212 of the Code of Criminal procedure, 1973 (hereinafter referred to as the Code).

For the sake of convenience the relevant provision of the Code is reproduced here under :

"Section 212 (1)

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(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property 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 charges so framed shall be deemed to be a charge of one offence within the meaning of Section 219:

Provided that the time included between the first and last of such dates shall not exceed one year."

Admittedly, the learned trial Court had framed a single charge against the petitioner under Section 409 of the Indian Penal Code concerning criminal breach of trust in respect of Rs. 992.50 paise, which are said to have been entrusted to the petitioner during the period 821972 to t1051976. Three offences of the same kind within a year may be charged together as contemplated under Section 219(1) of the Code which for the sake of convenience is reproduced as under :

"219. Three offences of same kind within year may be charged together:

(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for any number of them not exceeding three."

The facts and circumstances of the present case clearly indicate that the petitioner has been charged under Section 409 of the Indian Penal Code for misappropriation of various items of money extending over a period of four years. Such like various items extending over a period of more than one year cannot be lumped together for the purpose of framing a single charge in view of proviso to sub section (2) to Section 212 of the Code which is mandatory in nature. The contravention of the mandatory provision referred to above at least amounts to grave irregularity. The procedure adopted in the instant case in holding joint trial of offences committed beyond the period of one year, in my opinion, has occasioned gross failure in justice in as much as the amount in respect of which breach of trust had been committed covers a period of about four years, far in excess of period of one year prescribed by the proviso to Section 212(2) of the Code. The facts and circumstances referred to above clearly indicate that the accused had been materially prejudiced in his defence. The irregularity or illegality in framing of charge thus cannot be cured under Sections 464 and 465 of the Code.

The apex Court in Kadiri Kunhammad v. The State of Madras, AIR 1960 SC 661, has observed that "a charge for criminal breach of trust framed in contravention of the proviso to section 222 (2) Cr.P.C. (Old) is merely an irregularity which can be cured both under Sections 225 and 537 and will not vitiate the trial when the accused is not prejudiced."

In Kadiri Kunhahammad''s case, the appellant accused No. 1 and eight other persons who were charged alongwith him were parties to a criminal conspiracy, the common object of which was to dishonestly misappropriate the property of the Meenangadi Producers cum Consumers Cooperative Society, Ltd., and otherwise to dispose of the said property dishonestly in violation of law. In the first count the appellant was charged under Section 409 of the Indian Penal Code with having committed breach of trust in the sum of Rs.26,000/ between April, 1949 and October, 1951.

The facts of the case in hand are entirely different from those in Kadiri Kunhahammad''s case (supra). In the present case, charge of criminal breach of trust had been framed in respect of period of over four years in contravention of proviso to Section 212(2) of the Code such a grave irregularity is not curable either under Section 219 or under Sections 464, 465 of the Code. The authority of the apex Court referred to above is clearly distinguishable and is not applicable to the facts of the case in hand.

For the foregoing reasons, the order of conviction and sentence passed by the Courts below against the petitioner thus cannot be legally sustained and the same is hereby set aside and giving the benefit of doubt the petitioner is hereby acquitted of the charge framed against him.