In Re: Seemakurti Kanakayya

Krishnan Pandalai, J.—The only point argued in this petition is that the petitioner against whom charges under Sections 408 and 477-A have

been framed in C.C. No. 82 of 1929 now pending against him cannot be tried or convicted for those offences because the petitioner was in a

previous case filed by the same complainant, namely C.C. No. 84 of 1928, tried and convicted for criminal breach of trust in respect of sums

collected within the same period as that covered by the alleged offences in this case.

The facts are as follows. The petitioner was a clerk under the complainant who is a trader in paddy and rice. The duty of the accused was to sell

rice collect the price from his customers and pay the amounts collected to the complainant and keep correct accounts of all receipts. In C.C. No.

84 of 1928 the petitioner was charged with having received sums of money on two days, namely Rs. 60 on 10th August, 1928, and two sums of

Rs. 16-12-0 and Rs. 54-4-9 on 24th September, 1928 and misappropriated the same without properly bringing them into account. For this he

was tried and convicted in that case. The present complaint which was subsequently filed and which is pending was in respect of three amounts,

namely Rs. 20 collected on, 14th August, 1928, Rs. 21 collected on 5th March, 1928 and Rs. 5 collected on 22nd March, 1928. Although the

charge was framed originally in respect'' of the three above amounts, it appears that the charge in respect of the amounts collected on 5th March,

1928 and 22nd March, 1928, have been struck out, so that the only charge now pending against the petitioner is that in respect of money collected

on 14th August, 1928.

The petitioner''s argument is that he having been previously convicted for criminal breach of trust; in respect of amounts collected on the 10th

August and 24th September, 1928, cannot now be tried again for criminal breach of trust in respect of an amount collected on an intermediate

date, namely, the 14th August, 1928. This argument is sought to be based on Section 403 read with Section 222(2) of the Criminal Procedure

Code. Reliance was also placed upon a decision of this Court reported in In re Appadurai Aiyar (1915) 32 I.C. 158 and a decision of the

Calcutta High Court in Sidh Nath Awasthi v. The Emperor (1929) 49 C.L.J. 378. The Public Prosecutor on the contrary relies upon the case in

Nagendra Nath Bose v. Emperor ILR (1923) C. 632 following the decision in Emperor Vs. Kashinath Bagaji Sali, . If the decision of this Court in

In re Appadurai Aiyar (1915) 32 I.C. 158 is applicable I am bound by it. But it seems to me that it is not applicable to the facts of this case. From

the report it seems that in that case there was a previous trial of the same accused for misappropriation of a gross sum between two dates. The

accused was thereafter charged for misappropriation of another gross amount not included in the first amount but misappropriated on dates within

the same period. In those circumstances the Court held that the intention of the legislature in enacting Section 222 of the Criminal Procedure Code

is that where there is to be a trial for misappropriation of a gross sum there should be only one trial for all such offences committed within the

period covered by the defalcation. The charge in the previous case in such circumstances should be taken to include all the items misappropriated

by the accused during that period, and therefore the accused cannot be put on trial in a subsequent case for other amounts alleged to have been

misappropriated during the same period. That decision has no bearing to this case because the former case against this petitioner was not for

misappropriation of a gross sum misappropriated within two dates but was for misappropriation of specific sums of money received on specific

dates. Where that is the case Section 222(2) of the Criminal Procedure Code does not come into play at all. All that the section in my opinion says

is that instead of charging the accused under separate counts for defalcation of each particular amount separately received and misappropriated

which is the general rule laid down in Section 234, an exception is made, necessitated by convenience, that all the defalcations within a year may

be joined together and the total amount of defalcation and the dates within which the defalcation took place need alone be mentioned in the charge

and a charge so framed is to be deemed to be a charge for one offence within the meaning of Section 234. This does not mean that, if that is more

convenient, separate counts should not be charged for separate amounts misappropriated on different dates. In other words, Section 222(2) is an

enabling provision which permits what otherwise would be a large number of separate charges to be'' joined together for the purpose of

convenience. Nowhere is it prescribed that separate charges in respect of separate amounts misappropriated shall not be resorted to and that if an

accused has misappropriated several sums within a year they all should be added together and made into one gross sum and tried as one charge.

All that the decision in In re Appadurai Aiyar (1915) 32 I.C. 158 means is that where a trial of misappropriation of a gross sum within an interval

of time has already taken place, the prosecution cannot be heard to say that certain items of misappropriation were left out from the gross sum first

charged or to bring fresh cases on those omitted amounts. As the learned Judges say, in such a case the charge in the previous case should be

taken to include all the items misappropriated by him in the course of the same transaction during that period. As that decision has no application to

this case I need not further consider it.

The decision in Sidh Nath Awasthi v. The Emperor (1929) 49 C.L.J. 378 is really against the petitioner''s contention. There the prosecution

knowing well what was the gross sum in respect of which an accused had committed criminal breach of trust elected to proceed on three separate

items and got the accused convicted. Then they picked up three other items and got the accused tried a second time and convicted. The Court

says that though Section 403, Criminal Procedure Code, may not strictly apply in terms to a case like this, still there is abundant authority for the

view that a second trial in circumstances such as this ought not to have been allowed to be held, by which I understand that the High Court would,

in an appropriate case, stop the trial if it was shown to be oppressive or an abuse of the process of the Court. But so far as the legality of the

conviction was concerned, the Court held that there was nothing illegal in it and contented itself with reducing the sentence. This decision does not

support the argument of the petitioner that the trial is illegal. It only says that in an appropriate case this Court has power to stop the trial as

oppressive and an abuse of the process of the Court. The decision in Emperor Vs. Kashinath Bagaji Sali, is a direct authority against the petitioner.

There the accused was tried for the offence of criminal breach of trust as a public servant in respect of Rs. 12 and odd and was acquitted. He was

again tried for the same offence in respect of another sum of Rs. 19 misappropriated during the same period as that to ''which the Rs. 12 related

and was convicted. The Sessions Judge acquitted the accused on the ground that his previous acquittal was a bar to the second trial. The High

Court of Bombay reversed the order of acquittal holding that the previous acquittal did not operate as a bar to the accused''s conviction at the

second trial. This was followed by the two learned Judges of the Calcutta High Court in the decision reported in Nagendra Nath Bose v. Emperor

ILR (1923) C. 632. On the authorities there is no ground for the petitioner''s contention that . having regard to the form of the charge in the former

case the charge now pending against him cannot be heard.

Nothing has been urged at the hearing to show that this is a fit case in which the trial should be stopped to prevent the abuse of the process of

the Court u/s 561-A. The complaint stated that the complainant did not, when he brought the former case, know that the accused had

misappropriated the sums now charged. I have not been shown that this is untrue. I, therefore, see no reason to interfere and dismiss this petition.