Mr. K. Panchatcharam vs State

P.R. Shivakumar, J.—The Petitioner in all the six Criminal Revision Cases is the first accused in C.C. Nos. 58 to 60/2009 and the sole

accused in C.C. Nos. 61 to 63/2009, which are pending on the file of Judicial Magistrate No. II, Ponneri.

The Petitioner herein was working as Secretary of Sholavaram Panchayat Union Government Teachers and Staffs Co-operative Society. During

his tenure as the Secretary of the said society between 01.10.1989 and 10.01.2005, there was an allegation of falsification of accounts and

consequent criminal misappropriation running to the tune of several lakhs during six different spells of twelve months duration. A case was

registered as Crime No. 2/2005 on the file of CCIW, Thiruvallur on the basis of a complaint dated 18.04.2005 preferred by Thiru.

Gurubarasundaram, Deputy Registrar of Co-operative Societies, Ponneri Division. The Investigating Officer, namely the Respondent herein, chose

to file six separate final reports pertaining to the above said six different periods in one and the same crime number and the final reports were taken

on file by the learned Judicial Magistrate No. II, Ponneri as six Calendar Cases, namely C.C. Nos. 58 to 63/2009. Out of the above said six

calendar cases, in C.C. Nos. 58/2009 to 60/2009, the Petitioner herein has been arraigned as accused No. 1 and two other persons have also

been arraigned as co-accused, namely accused Nos. 2 and 3. So far as C.C. Nos. 61/2009 to 63/2009 are concerned, the Petitioner figures as

the sole accused in each one of the above said calendar cases. The cases are ripe for trial. The Petitioner herein, contending that all the charges

made against him in the above said calendar cases are in respect of a series of transactions, in which the Petitioner is alleged to have made false

entries in the records and misappropriated amounts during various periods and hence the Petitioner should be tried in one and the same trial for all

the charges, filed petitions in all the six calendar cases u/s 211 Code of Criminal Procedure r/w 219 Code of Criminal Procedure to club all the six

calendar cases, namely C.C. Nos. 58 to 63/2009 on the file of the trial court and try the Petitioner in a single trial. They were taken on file as

Crl.M.P. No. 2211/2009 in C.C. No. 58/2009, Crl.M.P. No. 2212/2009 in C.C. No. 59/2009, Crl.M.P. No. 2213/2009 in C.C. No. 60/2009,

Crl.M.P. No. 2214/2009 in C.C. No. 61/2009, Crl.M.P. No. 2215/2009 in C.C. No. 62/2009 and Crl.M.P. No. 2222/2009 in C.C. No.

63/2009.

The learned Judicial Magistrate No. II, Ponneri, after hearing, by separate and identical orders, all dated 15.07.2010, dismissed the said

petitions holding that the Petitioner was not entitled to seek clubbing of all the above said six calendar cases and seek trial of all the charges against

him in a single trial. The correctness and legality of the said orders passed by the Judicial Magistrate No. II, Ponneri in Crl.M.P. Nos. 2211, 2212,

2213, 2214, 2215/2009 in C.C. Nos. 58 to 62 respectively and Crl.M.P. No. 2222/ 2009 in C.C. No. 63/2009, have been questioned by the

Petitioner in these criminal revision cases filed u/s 397 r/w 401 Code of Criminal Procedure

Since the question involved in all the criminal revision cases is one and the same and the relief sought for in all the criminal revision cases is also

the same, all six criminal revision cases were taken up together for joint hearing and they are now being disposed of by a common order.

The arguments advanced by Mr. S. Ilamparithi, learned Counsel for the Petitioner in all the criminal revision cases and by Mr. I. Paul Nobel

Devakumar, learned Government Advocate (Crl. Side), representing the Respondent in all the criminal revision cases were heard. The materials

produced by the Petitioner in the form of typed set of papers were also perused. The records sent for from the court below were also perused.

The Petitioner is one of the persons who have been arraigned as accused in C.C. Nos. 58 to 60/2009 on the file of Judicial Magistrate No. II,

Ponneri and he is the sole accused in C.C. Nos. 61 to 63/2009 on the file of the said court. He wants all the six calendar cases to be clubbed and

tried in one and the same trial on the premise that the charges relate to falsification of accounts and criminal misappropriation in a series of

transactions spread over a period of 5 years. It is the contention of the learned Counsel for the Petitioner that though the case was registered by

the police in a single crime number, six different final reports were submitted in one and the same crime number leading to the institution of six

calendar cases on police report and the said fact alone would make the claim of the Petitioner for clubbing of the cases and conducting a joint trial,

a justifiable one. It is the further contention of the learned Counsel for the Petitioner that as per Section 212(2) of Cr.P.C, it would be sufficient to

specify the gross sum and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates

and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 219 Code of Criminal Procedure and that

the proviso to Section 218(1) provides for the joint trial of all or any number of charges framed against the accused person provided, the accused

by an application, in writing, so desires and the Magistrate is also of the opinion that such person is not likely to be prejudiced thereby; that in this

case, the Petitioner, being accused of falsification of accounts and misappropriation in all the six calendar cases, filed applications in writing

expressing his desire to have the trial of all the cases together; that on the expression of such desire made by the Petitioner, the court below ought

to have allowed the prayer unless the Magistrate was of the opinion that the Petitioner was likely to be prejudiced and that the dismissal of the

petitions filed by the Petitioner seeking joint trial of all the cases was legally unsustainable since the Petitioner himself had made his desire known to

the court in writing to have all the cases tried together and expressed that he was not likely to be prejudiced by such joint trial.

It is the further contention of the learned Counsel for the Petitioner that, since the principle embodied in the proviso to Section 218(1) of Code

of Criminal Procedure is intended to ensure that the desire of the accused for having all the charges against him tried together is given effect to,

unless the Magistrate is of the opinion that the accused is likely to be prejudiced thereby, the learned Judicial Magistrate ought to have allowed his

petitions. The learned Counsel''s further submission is that it shall be convenient to have all the cases tried together as the witnesses to be examined

in the cases will be common and there will be overlapping of documents to be exhibited in the cases.

On the other hand, it is the contention of the learned Government Advocate (Crl. Side) that there is nothing wrong in submitting six final reports

pertaining to six different periods leading to the institution of six calendar cases and that the same was in tune with Section 212 sub Clause (2)

proviso. It is the further contention of the learned Government Advocate (Crl. Side) that Section 219 Code of Criminal Procedure permits the joint

trial of three offences of the same kind committed within a period of one year; that Section 220 Code of Criminal Procedure cannot be read in

isolation and should be read in conjunction with Section 212 and 219 Code of Criminal Procedure and that a joint reading of all the sections would

show that criminal misappropriation for each spell of one year shall be made a separate charge. It is his further contention that since the proviso to

Section 212(2) Code of Criminal Procedure specifies a period of one year as the outer limit and Section 219 Code of Criminal Procedure permits

joinder of offences totally not exceeding 3 in number, that too committed within a span of one year, and since Section 218(2) specifically states

that Sub-section (1) of Section 218 shall not affect Section 219 Cr.P.C, the offences concerned in these revision cases, being not confined to a

period of one year, cannot be tried together. It is his further contention that, even if it is assumed that the cases can be tried together, it is subject to

a condition that the Magistrate is of the view that the accused persons are not likely to be prejudiced; that since the Petitioner herein is not the sole

accused in all the calendar cases and in three out of six calendar cases, other persons have also been arraigned as accused persons along with the

Petitioner and since those accused persons have not been made parties to the petitions filed before the trial court and consequently in the criminal

revision cases, it cannot be ascertained whether they desire of the charges against them and the charges against the Petitioner to be tried together

and whether they are likely to be prejudiced by such joint trial and that on that ground alone the criminal revision cases are liable to be dismissed.

This Court paid its anxious considerations to the above said submissions made on either side.

On detection of falsification of accounts and misappropriation spread over a period of five years, the Deputy Registrar of Co-operative

Societies, Thiruvallur has lodged a complaint with CCIW, Thiruvallur, based on which a case was registered in Crime No. 2/2005. During the

course of investigation, the Investigating Officer ascertained the total amount misappropriated during six different periods of one year duration and

submitted six final reports, each one relating to such a period of one year duration. The particulars of alleged misappropriation, period of

misappropriation, calendar case and the number of accused charge-sheeted are furnished in the following tabular column.

Amount of No. of

Period Calendar Case

misappropriation Accused

12.03.1999 to 21.12.1999 Rs.7,82,270/- C.C.No.58/2009A1 to A3

27.01.2000 to 27.12.2000 Rs.11,50,570/- C.C.No.59/2009A1 to A3

02.01.2001 to 21.05.2001 Rs.6,88,440/- C.C.No.60/2009A1 to A3

30.03.2002 to 18.12.2002 Rs.19,17,420/- C.C.No.61/2009A1 alone

10.01.2003 to 11.11.2003 RS.9,73,249/- C.C.No.62/2009A1 alone

2004 Rs.6,53,600/- C.C.No.63/2009A1 alone

A1 - Petitioner, A2-Chandran and A3-Sadagopan were the Secretary, Vice President and President respectively of the co-operative society

concerned in the cases.

The relevant provisions in the Code of Criminal Procedure, 1973 to be considered for the disposal of the present criminal revision cases are

Sections 212, 218, 219 and 220. The general principle found in Section 212(1) is to the effect that the charge shall contain such particulars as to

the time and place of the alleged offence, and the person if any against whom, or the thing if any in respect of which, it was committed, as are

reasonably sufficient to give the accused notice of the matter with which he is charged. Sub Clause (2) of Section 212 Code of Criminal Procedure

is an exception to the general principle found in sub Clause (1) of Section 212. It is to the effect that in cases of criminal breach of trust or

dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or describe the movable property in

respect of which the offence is alleged to have been committed and also the dates between which the offence is alleged to have been committed,

without specifying particular items or exact dates. But the said exception provided in Sub-section (2) is conditioned by a rider found in the proviso,

which says that the period referred to in sub Clause (2) between the first and last of such dates during which period the offence was committed

shall not exceed one year. Therefore, it is crystal clear that though for a charge of criminal breach of trust and dishonest misappropriation of

money, it is not necessary to state each and every particular item and exact date and it shall be sufficient to specify the gross amount and the dates

between which the offence was committed, provided the time between the first and last of such dates shall not exceed one year. It enables framing

of a single charge for the criminal breach of trust or dishonest misappropriation of money committed during the period, which does not exceed one

year.

In the case on hand, the Investigating Officer, keeping in mind the proviso contained in Sub-section (2) of Section 212 which permits a single

charge for criminal breach of trust or dishonest misappropriation only for a period not exceeding one year, ascertained the amounts allegedly

misappropriated during six different spells. That is the reason why the Investigating Officer has split up the period of misappropriation into six

periods, the first one pertaining to the year 1999, the second one pertaining to the year 2000, the third one pertaining to the year 2001, fourth one

pertaining to the year 2002, fifth one pertaining to the year 2003 and the sixth one pertaining to the year 2004. Therefore, the filing of separate

charge-sheets for each spell was completely in tune with Section 212 sub Clause (2) proviso. Hence the Investigating Officer cannot be found fault

with for filing separate final reports in respect separate periods of one year duration and the court below also cannot be found fault with for taking

cognizance of the said cases as separate calendar cases.

The next section to be considered is Section 218(1) Cr.P.C, which says, for every distinct offence of which any person is accused there shall

be a separate charge, and every such charge shall be tried separately. It enunciates the general principle that each separate charge should be tried

separately. But the proviso says that where the accused person, by an application in writing, so desires and the Magistrate is of the opinion that

such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges framed against such person.

But, sub Clause (2) of Section 218 specifically states that Sub-section (1) shall not affect Sections 219, 220, 221 and 223 of Code of Criminal

Procedure Section 219 is to the effect that three offences of same kind committed within a year by the same accused may be tried together. The

very ambit of Section 219 will exclude the application of the same to the cases on hand, since each case has been instituted on police report for the

offence committed during the span of one year. The fact that Section 219 allows charging together of three offences committed within a period of

one year, will rule out the clubbing of the calendar cases concerned in the criminal revision cases, as they pertain to offences committed during six

different periods, each one extending to a period of one year.

Sub-section (1) of Section 220 Code of Criminal Procedure may appear to be applicable to the case on hand. It says, if, in a series of acts so

connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried

at one trial for every such offence. The said section shall be read in conjunction with Section 212 sub Clause (2). Section 220(2) Code of Criminal

Procedure specifically refers to charges of criminal breach of trust or dishonest misappropriation as provided in Sub-Section 2 of Section 212 or in

Sub-section (1) Section 219 Code of Criminal Procedure What is provided in sub Clause (2) of Section 220 is that if one or more offences of

falsification of accounts have been committed in order to facilitate or conceal the commission of criminal breach of trust or dishonest

misappropriation by the person facing the charge of criminal breach of trust or dishonest misappropriation, he may be charged with and tried at one

and the same trial. The other clauses found in Section 220 are not attracted. Therefore, the Petitioner cannot rely on Section 220 also to seek

clubbing of the cases and joint trial.

Section 221 deals with the situation wherein it is doubtful as to which of several offences the facts which can be proved will constitute.

Therefore, the same is also not applicable. Section 223 deals with the persons who may be jointly charged and tried. The same is also not relevant

for the purpose of making a decision in these criminal revision cases.

The only provision that is left to be considered is the proviso to Section 218(1) of Code of Criminal Procedure As pointed out supra, sub

Clause (1) lays down the general principle that every distinct offence, of which a person is accused, shall be tried separately. But the proviso is to

the effect that when an application in writing is made by the accused person expressing his desire to have all or any number of the charges framed

against him tried together, the Magistrate may try all or any number of charges, provided the Magistrate is of the opinion that such accused person

is not likely to be prejudiced by such joint trial. Of course, it is true that the said proviso has been made to confer a benefit on the accused person

to have all the charges against him tried together. The language used therein shows that a discretion is conferred on the Magistrate either to try all

the charges or any number of charges, framed against such accused, together in the same trial. It is obvious from the use of the modal verb ""may"".

Such an exercise of discretion is also conditioned by the forming of an opinion that such an accused is not likely to be prejudiced by such joint trial.

In addition to that, in Sub-section (2), it has been provided that the general principle enshrined in sub Clause (1) shall not affect the operation of the

provisions found in Sections 219, 220, 221 and 223, which deal with joinder of charges and persons who can be charged jointly. We have already

seen that specific instances of joinder of charges provided in Sections 219, 220, 221 and 223 are not applicable to the case on hand. When a

specific provision is provided for the joinder of charges of particular nature, the exception provided in the proviso to sub Clause (1) of Section 218

of Code of Criminal Procedure will not be attracted. Even if it is assumed that it will be attracted, then the exercise of the discretion conferred on

the Magistrate under the proviso to Sub-section (2) of Section 218 not in favour of joint trial of all the charges, can be held to be justified.

Consideration of yet another aspect in this case is also necessary for the disposal of these criminal revision cases. As pointed out supra,

Petitioner is not the sole accused in all the six calendar cases, which are sought to be tried together. In three cases alone, the Petitioner figures as

the sole accused. In the other three cases, along with the Petitioner, two more persons figure as co-accused. When such is the case, whether the

other accused persons are likely to be prejudiced by the joint trial of the cases should also be considered. It is also pertinent to note that the other

accused persons also do have similar option either to express their desire to have the charges against them tried together or to have the charges

against them in each calendar case tried separately. The other co-accused in C.C. Nos. 58 to 60/2009 have not made any application in writing

expressing their desire to have all the charges against them in the calendar cases tried together. They have also not been made parties to the

applications made before the court below; Nor have they been made parties in these criminal revision cases. Though the learned Counsel for the

Petitioner represented that the other co-accused would not have any objection and that they would express their willingness to have a single trial of

all the cases if they would be made parties to the criminal revision cases and took time, thereafter the Petitioner failed to take steps to make the co-

accused in C.C. Nos. 58/2009 to 60/2009 as parties to the criminal revision cases.

Under such circumstances, this Court is of the considered view that the plea of the Petitioner, who is one among several accused persons in

three out of the six cases, which are sought to be tried together for joint trial of all the six cases, cannot be sustained. The court below also seems

to have dismissed the petitions mainly on the above said ground. This Court does not find any defect or infirmity or illegality in the orders passed by

the learned Judicial Magistrate No. II, Ponneri declining the relief of clubbing of all the six calendar cases and joint trial of the said cases. Hence the

challenge made to the orders of the learned Judicial Magistrate No. II, Ponneri is bound to fail.

For all the reasons stated above, this Court comes to the conclusion that there is no merit in the criminal revision cases and all the criminal

revision cases are bound to be dismissed. Accordingly dismissed. Consequently, connected miscellaneous petitions are dismissed.