Ganesh Prashad and Another vs Emperor

Wort, J.—In this case the two petitioners, one Gopal Prasad and the other Deo Narain Lal, have been tried and convicted for an offence u/s 408, I.P.C.

The substance of the charge against Ganesh Prasad was that on 26th September 1930, he misappropriated a sum of Rs. 100 in that he entered that sum in the books of account of the firm by which he was employed but that he did not pay over that sum to his employer. The second item of charge was that on 9th May 1931, a sum of Rs. 2-15-6 was received from a customer on account of a tin of petrol, but there was no entry in the books and no payment over to his employer. The third item was a sum of Rs. 10-9-6 received from a Miss Murray on 25th May 1931, and again not paid over to his employer. In the case of Deo Narain Lal there were two items: one of Rs. 5 on 10th November 1930, which was a balance of a sum of Rs. 157 alleged to have been received from a shopkeeper and only Rs. 152 was entered in the books of the firm, the second item being Rs. 10 on 16th March 1931, which represented the value of five petrol drums which had been received and not accounted for by Deo Narain Lal.

The point which is advanced on behalf of the petitioners is that there has been a misjoinder of charges and mistrial in that the two petitioners should not have been tried together. The misjoinder of charges arises in this way according to the argument. The second and third items, if the prosecution case is to be believed against Ganesh Prasad, represent criminal misappropriation, but it is contended that all that the evidence with regard to the first item discloses is a falsification of the books. The facts, as I have stated, were that Rs. 100 were entered in the books but not received by the employer.

In my judgment the argument cannot be sustained. The only inference to be drawn from the facts proved if they are believed is that Rs. 100, which was entered in the books as paid over to the employer, was received from a customer and was not paid out of Ganesh Prasad''s own pocket. The inference, as I have said, to be drawn is that Rs. 100 was received from a customer and, if the evidence of the employer is to be believed, that Ganesh. Prasad actually misappropriated the same. Therefore the first item is as much a case of misappropriation, as the second and the third and, as I have said, the argument in that connection cannot be supported.

There is another argument in relation to Deo Narain Lal excepting a general observation, namely, that a civil suit was started shortly after the complaint was filed and the matter is of a civil character. But the substantial point is that these two persons should not have been tried together. The only possible way to try the two petitioners together would have been u/s 234, or Section 239, Criminal P.C. Quite clearly it is not a case u/s 234; but it is argued on behalf of the prosecutor that it is a case under Sub-clause (e), Section 239.

In my judgment however that clause cannot possibly cover the facts and circumstances of this case. Clause (e), Section 239, provides for the trial of two classes of persons together: first, a person who is guilty of the subsidiary offence and a person who is charged or is guilty of disposing of or concealing the property which was the subject-matter of the substantive offence. That is not this case, nor can it be said to come under Sub-clause (c), Section 239, because by no stretch of imagination can it be said that the evidence in this case discloses the fact that these two petitioners committed this offence jointly.

As far as the evidence goes, at least as far as the judgment discloses, the misappropriation of these various items were independent transactions carried out by the petitioners independently of one another. In my judgment therefore the trial of these two petitioners together was bad in law.

The conviction must therefore be set aside, and there must be a new trial according to law.

Rowland, J.--I agree. The charge as framed against Ganesh Prasad was a single charge of several items permissible within Section 222, Clause (2), Criminal P.C. The charge against Deo Narain Lal was a single charge consisting of two items and similarly permissible under the same section. But the Magistrate erred in trying these two accused at one trial. They must be tried separately.