State of Punjab vs Baldev Singh

J.S. Sekhon, J.

Baldev Singh accusedrespondent, while posted as Secretary of Fatuhiwala Cooperative Agricultural Service Society used to collect the amount of fertilizer loan from the members of this society, after relevant entries in the passbook of such members, he was responsible for reflecting this amount in the cashbook of the society and depositing it with the Central Cooperative Bank. Bhola Singh, PW6 (Member of Society) paid Rs. 435/ as principal amount and Rs. 20/ as interest of the fertilizer loan to Baldev Singh, accused. He made entry in the passbook, Exhibit P. 1.6A, but did not account for this amount in the accounts of the society. Similarly, Gurcharan Singh, PW8 (Member of the Society) also paid Rs. 1625/ in all to Baldev Singh accused as fertilizer loan while Mst. Surjit Kaur and Kartar singh paid Rs. 50/ and Rs. 60/ respectively. The accused failed to reflect this amount in the cashbook of the society or deposited the same in the Bank.The embezzlement of this amount came to the notice of the audit party of the society, which ultimately resulted in the registration of the case under Sections 420/408/468/471/379, Indian Penal Code at Police Station Lambi against the accused on the report of the Inspector, Cooperative Societies. After completion of the investigation, the accused was arraigned for trial on such like allegations.

The trial Court framed a joint charge for offence under section 408, Indian Penal Code, against the accused for all the above referred four incidents of misappropriation. The accused, however, pleaded not guilty to the charge and claimed trial.

In support of its case before the trial Court, the prosecution examined eight witnesses. Bhola Singh and Gurcharan Singh, witnesses, supported the above version of the prosecution. The version of Baldev Singh accused before the trial Court recorded under Section 313, Code of Criminal Procedure, 1973, was that of innocence and false implication. The accused, however, led no evidence in defence.

The trial Court acquitted the accusedrespondent on the misjoinder of four charges by holding in para 7 of the judgment as under :

"The first submission made by the learned defence counsel is that the prosecution has failed to prove its case on the ground of misjoinder of charges because the charge against the accused included four items, i.e. R. 455/ alleged to have been deposited by Bhola Singh s/o Bhag Singh Rs. 1625/ of Gurcharan Singh, Rs. 50/ of Surjit Kaur widow of Baldev Singh and Rs. 60/ of Kartar Singh son of Mukhand Singh. So, the accused had been charged qua four items of the same kind extending over the period of one year which is illegal in view of the provisions contained in Section 219, Cr.P.C. On the other hand, learned A.P.P. has submitted that it is sufficient for the prosecution to specify the gross amount the accused cannot be said to have been prejudiced on that account and the charge does not fall on the alleged ground of misjoinder of charges. However, I fail to agree with the learned A.P.P. because joinder of more than three distinct offences criminal breach of trust in one trial is an illegality vitiating the trial and in this view of the matter. I am fortified by a decision cited as Nga San Mya v. Emperor, AIR 1933 Rangoon, 325. So, in view of the above discussions I am of the opinion that the prosecution has failed to prove its case against the accused beyond any shadow of doubt for an offence under Section 408, IPC. So, the accused is, therefore, hereby acquitted for the same. File be consigned to the record room."

Baldev Singh, accusedrespondent, has failed to turn up or engage any counsel to represent him in this appeal, although he was personally served with notice of actual hearing. Under these circumstances, there is no option but to dispose of this appeal in absence of the accused respondent.

There is considerable force in the contention of Mr. S.S. Dhaliwal, learned Deputy AdvocateGeneral, Punjab, that in view of the provisions of Section 464 of the Code of Criminal Procedure, 1973, misjoinder of charges would not be sufficient to vitiate the trial or render the order of conviction and sentence invalid unless it has resulted in failure of justice. The provisions of Section 464 of the Code of Criminal Procedure, read as under :

"Section 464. Effect of omission to frame, or absence of, or error in, charge (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from that point immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."

A bare glance through the same leaves no doubt that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground of nonframing of any charge etc. including misjoinder of the charges unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby, Subsection (2) of this section further provides that in case the Court of appeal, confirmation or revision, finds a failure of justice has in fact been occasioned, then it may order that a charge be framed and the trial should start immediately after the stage of framing the charge in cases when no charge is framed but in those cases where an error or mistake or irregularity in the charge is involved then it may direct new trial on the charge framed in whatever manner it thinks proper. The proviso to this subsection further reveals that the appellate Court etc. shall quash the conviction if it is of the opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved.

It appears that the above referred provisions of Section 464 were not brought to the pertinent notice of the trial Court. Thus, the misjoinder of more than three charges against the dictate of Section 219 of the Code of Criminal Procedure is a mere irregularity and not sufficient to vitiate the trial unless it has resulted in prejudice to the accused. In the case in hand, no prejudice appears to have been caused to the accused as the perusal of the evidence recorded by the trial Court reveals that all the witnesses were cross examined on all the charges. Thus, it cannot be said that the misjoinder of charges has resulted in failure of justice or prejudice to the accused. On the other hand it is curable irregularity under the provisions of Section 464 Code of Criminal Procedure.

The question then arises whether the evidence on the record is sufficient to bring home the charge to the accused, especially when the trial Court had not appraised the evidence qua the merits of the case, but had simply recorded order of acquittal of the appellant on the above referred technical and legal ground of misjoinder of charges.

On the merits of the case, it is noteworthy that the prosecution has failed to lead any documentary evidence in order to prove that Gurcharan Singh witness had entrusted the said amount to Baldev Singh accused as the passbook of Gurcharan Singh, PW 8 on which the accused had alleged to have made an entry regarding the receipt of Rs. 1625/ as return of the loan, has been lost. This witness has brought the photostat of the same but it has not got it exhibited. Under these circumstances, the oral assertion of Gurcharan Singh, PW in this regard and that too after lapse of many years is of no consequence to bring home this charge for offence under Section 408. Indian Penal Code to the accused.

The evidence of Bhola Singh, PW that he had paid Rs. 455/ to the accused is of no consequence as the prosecution has failed to produce the cashbook or any evidence qua nondeposit of this amount in the Bank in order to show that this entry was not reflected therein. Strangely enough, Sh. Gurdip Singh, Inspector, who conducted the audit and found these infirmities, has not been examined.

On the other hand, Sh. Muni Lal, Audit Officer, Amritsar (PW 7) has simply forwarded this report to the concerned authorities. A copy of the forwarding report, Exhibit PW 7/A has been exhibited during the testimony of Sh. Muni Lal. Thus, it cannot be said that the accused had failed to deposit this, in the account of the Cooperative Society with the said Bank, although Gurcharan Singh, Branch manager of Central Cooperative Bank (PW 3) and Kewal Krishan, Manager, Cooperative Bank, Foranwala, (PW 4) deposed about the sample signatures of Baldev Singh accused available in that Bank and the receipt of the fertilizer loan through draft by Baldev Singh accused. Thus, these witnesses simply deposed about the identity of signatures of Baldev Singh.

In view of this state of prosecution evidence, there is no justification in setting aside the order of acquittal of the trial Court, although recorded only on technical legal grounds referred to above as it is not sustainable on merits. Consequently, the appeal against acquittal fail and is hereby dismissed.