Kutti Nadar v. State — 1954 DIGILAW 117 (KER)

Judgment :- 1. Velayudhan Nadar Kutti Nadar, who was accused No. 4 in Sessions Case No.13 of 1953 on the file of the Nagercoil Sessions Court, has preferred this appeal against his conviction by the learned Sessions judge for commission of offences punishable under S. 489B and 489C of the Indian Penal Code and the sentences passed therefor. For the offence under S. 489B the appellant has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500. In default of payment of the fine, he is to undergo rigorous imprisonment for a further period of six months. On the other count, namely, the offence under S. 489C, a sentence of three years' rigorous imprisonment has been passed. 2. Seven other persons were jointly tried with the appellant for commission of similar offences, but all of them except accused No. 6 were acquitted by the learned Sessions Judge. Accused No. 6 has preferred Criminal Appeal No. 43 of 1954 against his conviction and sentence. That appeal was heard along with this appeal but we are disposing of it by a separate judgment. The case against the present appellant is that he attempted to pass off one counterfeit currency note of the one hundred rupees' denomination as genuine and that he was found in possession of another like note. Finding him guilty under both counts the learned judge convicted and sentenced the appellant as mentioned above. 3. The main argument urged before us by the appellant's learned counsel was that the trial was illegal on account of misjoinder of charges and persons and that independent of the merits of the case, the conviction and the sentence have to be set aside. At the conclusion of the hearing we indicated our view that we would accept that argument and direct a retrial of the case against the appellant. 4. For a proper appreciation of the argument as to the misjoinder of charges and persons it is necessary to ascertain the nature of the accusations made against the eight accused persons jointly tried before the learned Sessions Judge. The following is a brief statement of the prosecution case as set out in paragraph 2 of the judgment under appeal. 4. For a proper appreciation of the argument as to the misjoinder of charges and persons it is necessary to ascertain the nature of the accusations made against the eight accused persons jointly tried before the learned Sessions Judge. The following is a brief statement of the prosecution case as set out in paragraph 2 of the judgment under appeal. "The 1st accused in this case along with others was charged by the Trivandrum Cantonment Police for having manufactured a good number of counterfeit 100 Rupees currency notes and for using them as genuine. Ext. S is the copy of the charge-sheet in that case. A2 in this case was entrusted with 22 such notes by A.1 at Trivandrum on 1951 March 10th. The price fixed for the notes was Rs. 500 of which Rs. 70 was paid in advance. A. 2 took the notes to South Travancore and began the process of distribution in the course of which he sold three notes to the 3rd accused in 1951 May for Rs. 50. A3 in turn sold one of the notes to A. 6 in the middle of May for Rs. 10, and A 2 and 3 together sold 6 notes to the 6th accused for Rs. 70 towards the end of September. Out of the 7 notes A. 6 had come by, he entrusted one to PW. 18 in this case in November for being changed, and burned the remaining ones later. A.3 sold the remaining two notes with him to A. 7 on January 9th for Rs. 50 and A.7 and his friend A8 entrusted the same to the 4th accused on 19.2.1952 on the understanding that 25% commission would be paid. On 25th July the 4th accused in company with his friend the 5th accused took the notes to PW. 2 and attempted to pass on the same to him towards the price of 2 buffaloes he purchased from the witness. The witness suspected the notes to be bad and returned them. Sometime later the same day A.4 purchased a buffaloe belonging to PW.1 for Rs. 101 and gave one of the forged notes towards the price. That buffaloe was sold by A4 the next day for Rs. 75 to PW. 4 in the Thoduvatti market and A4 kept the other note with him to be used. Sometime later the same day A.4 purchased a buffaloe belonging to PW.1 for Rs. 101 and gave one of the forged notes towards the price. That buffaloe was sold by A4 the next day for Rs. 75 to PW. 4 in the Thoduvatti market and A4 kept the other note with him to be used. The remaining notes with A.2 were either passed on as genuine or attempted to be passed on". 5. A true account of the specific acts attributed to the eight accused persons as stated in the charge each of them was called upon to plead is embodied in the above abstract. 6. There is no charge of conspiracy or any allegation of concerted action among the eight accused persons jointly tried. Accused No.1 disappears from the scene after he parted with 22 counterfeit notes to accused No. 2. He (accused No. 1) does not contact any of the other persons jointly tried with him than accused No. 2. Likewise accused No. 2 had no contact with accused No. 4 or accused No. 5 or accused No. 7 or accused No. 8. Accused No. 3 had contact only with accused Nos. 2 and 6. Accused No. 4 had contact only with accused No. 5 and accused Nos. 7 & 8. Accused No. 5 had contact only with accused No. 4. Accused No. 6 had contact only with accused Nos. 2 and 3. Accused Nos. 7 and 8 had contact only with accused No. 4. In the absence of any allegation of conspiracy or of concerted action among the several accused persons in the case, we are unable to appreciate how the learned judge could have resorted to a joint trial of the persons who were alleged to have committed distinct and unconnected offences at different times and different places. To test the validity of a joint trial it is the accusation that matters and not the eventual result. The statement of the case in the Police charge sheet and the charge drawn up by the committing Magistrate against all the eight accused persons mention that accused Nos.1 and 2 had the common purpose of defrauding the public and making unlawful gain by selling and purchasing 22 counterfeit notes and afterwards trafficking in them. The statement of the case in the Police charge sheet and the charge drawn up by the committing Magistrate against all the eight accused persons mention that accused Nos.1 and 2 had the common purpose of defrauding the public and making unlawful gain by selling and purchasing 22 counterfeit notes and afterwards trafficking in them. Either document does not state that at that time or at any other time they shared that purpose commonly with the remaining six accused persons nor does the committal order or the evidence recorded by the committing Magistrate show any community of action and purpose among the eight accused persons. The charge-sheet filed by the police and the charge drawn up by the committing Magistrate mention S. 114, IPC. In each entrustment or sale it is only two or at the most three among the accused persons that came together and not all of them. S. 114 relates to cases where abettors are present at the commission of the crime. The charge framed by the learned Sessions Judge opens with the preface that the distinct acts set out there were committed with the idea of defrauding the public and making unlawful gain to the persons jointly tried and concludes by stating, that the various acts mentioned were committed within the course of one year and that each accused person had abetted the others in the commission of the various distinct offences attributed to them. Except the mention of S. 114 and the use of the word abetment the facts set out do not refer to any act or process of abetment by any one of the accused persons. We have no doubt these additions were made in the Sessions Court with the set purpose of justifying a joint trial of the eight persons. If the learned judge thought the idea to defraud the public and to make wrongful gain which these persons who were trafficking in the counterfeit notes had, would justify a joint trial, there will then perhaps be no end of the number of persons who could be tried jointly. All those who indulge in such activities have the same purpose. Various thefts committed by several people or various murders committed at different places within a specified time can then be made the subject of one trial. All those who indulge in such activities have the same purpose. Various thefts committed by several people or various murders committed at different places within a specified time can then be made the subject of one trial. The fallacy is well exposed in the judgment of Abdur Rahiman, J. in Charagudi Venkadri v. Emperor, at page 507 of the reports (1910) ILR 33 Madras 502. The learned judge said: "As regards community of purpose I think it would be going too far to lay down that the mere existence of some general purpose or design such as making money at the expense of the public is sufficient to make all acts done with that object in view part of the same transaction. If that were so, the results would be startling; for instance, supposing it is alleged that A for the sake of gain has for the last ten years been committing a particular form of depredation on the public, viz., house-breaking and theft, in accordance with one consistent systematic plan, it is hardly conceivable that he could be tried at one trial for all the burglaries which he committed within the ten years. The purpose in view must be something particular and definite such as where a man with the object of misappropriating a particular sum of money or of cheating a particular individual of a certain amount falsifies books of account or forges a number of documents. In the present case not only is the common purpose alleged too general and vague but there cannot be said to be any continuity of action between one act of misappropriation and another. Each act of misappropriation was a completed act in itself and the original design to make money was accomplished so far as the particular sum of money was concerned, when the misappropriation took place. This also holds good with reference to the several charges of cheating though the falsification of accounts may have connection with the charges of misappropriation." 7. Knowing it is the accusation that matters, the new features mentioned were introduced into the charge framed in the Sessions Court without any warrant and the events and facts set out there belie the averments. It is unfortunate that an experienced Sessions Judge fall into this error. An attempt is seen made to circumvent the law relating to joinder of charges, but it failed of its purpose. It is unfortunate that an experienced Sessions Judge fall into this error. An attempt is seen made to circumvent the law relating to joinder of charges, but it failed of its purpose. There is nothing in the charge from which it can be said that the alleged incidents form part of the same transaction. What the charge shows is that the offenders acted independently. Each act was for the benefit of the particular accused person concerned and not for the common benefit of all. Unless the various entrustments or sales set out in the charge were unified as being overt acts done in pursuance of a conspiracy it is impossible to treat them as forming part of the same transaction - Babulal Chaukhani v. Emperor, AIR 1938 PC 130. 8. If the learned judge thought the fact that the prosecution alleged that the distribution or sale to accused No. 3 onwards was out of the 22 notes accused 1 sold to accused 2 would justify a joint trial of those who have had nothing to do with that sale, a reference to clauses (e) to (g) of S. 239, Crl.P.C. would have made it clear that that allegation would not justify that course. Joint trial of one main offence and other subsidiary offences whose commission is rendered possible by the main offence, but which are committed by persons who have had nothing to do with the main offence, would be legal only in a case where it is specifically provided by the Code. Clauses (e), (f) and (g) of the S. 239 which provide for such case do not include manufacture and/or of trafficking in of counterfeit notes among them. The history of these clauses and case law bearing on the question before their introduction make the matter clear. Clauses (a) and (b) of S. 239 have obviously no application to the present case as several distinct offences, though similar, are made the subject of one and the same trial. Clause (c) applies only to a case where the offences tried together are oinely committed and we have already said there is no allegation at all that all the eight persons had jointly committed the various acts forming the subject of the charge in the present case. Clause (c) applies only to a case where the offences tried together are oinely committed and we have already said there is no allegation at all that all the eight persons had jointly committed the various acts forming the subject of the charge in the present case. Nor could clause (d) apply to the case as the charge itself shows that each act mentioned there was a complete act in itself, unconnected with the other acts. No common concert or agreement is alleged. 9. A few passages from the judgment of Batty, J. in ILR 30 Bombay 49 may usefully be quoted here: "S. 239 admits of a joint trial when more persons than one are accused of different offences committed in the same transaction. It suffices for the purpose of justifying a joint trial that the accusation alleges the offences committed by each accused to have been committed in the same transaction, within the meaning of S. 239. It is not necessary that the charge should contain the statement as to the transaction being one and the same. It is the tenor of the accusation and not the wording of the charge that must be considered as the test........... We think that the argument of the learned counsel for the appellant would have been more convincing if no continuity of action and purpose, common to both the accused throughout, had been alleged in the case presented by the prosecution...... ............ In S. 239, therefore, a series of acts separated by intervals of time are not, we think excluded, provided that those jointly tried to have throughout been directly to one and the same objective. If the accused started together for the same goal this suffices to justify the joint trial, even if incidentally, one of those jointly tried had done an act for which the other may not be responsible We think the foundation for the procedure in that section is the association of two persons concurring the start to finish to attain the same end. No doubt if it were attempted to associate in the trial a person who had no connection whatever with the transaction at a time when one or more of the series of the acts alleged had been done, when it might be urged that would be outside the provisions of the section". 10. No doubt if it were attempted to associate in the trial a person who had no connection whatever with the transaction at a time when one or more of the series of the acts alleged had been done, when it might be urged that would be outside the provisions of the section". 10. The construction of S. 239 by Batty, J. has been approved by the Privy Council in Babulal Chaukhani's case AIR 1938 PC 130. In Raghava Kurup v. Sirkar,1949 TCLR 23 one of us had occasion to review the authorities bearing on the application of S. 239(d) and the effect of the decisions were summarised as follows in paragraph 14 of the judgment: "The above authorities clearly bear out the proposition sought to be enunciated in this order that unless the accusation made against different persons tried together for committing different offences attributes concerted action to them in the commission of the various offences a joint trial would be against the mandatory provisions of S. 239(d) and that it would be illegal. It is, as we have already seen, also well settled that such illegality cannot be cured or condoned by any curative provision contained in the Code." 11. In subsequent cases also this High Court has taken the view that when a trial is conducted in a manner different from that priscribed by the Criminal Procedure Code the trial would be bad, and no question of curing an irregularity would arise in such a case. Dandapani Ayyar v. Sirkar,1949 TCLR 113; Korah v. State, 1951 KLT 252; and Top v. State, 1953 KLT 722 =1953 ILR (Travancore-Cochin) 734. As the question has been considered elaborately in Raghava Kurup's case, it is unnecessary to discuss the matter over again, but reference may usefully made to two decisions which are not mentioned there. Muhammadali v. Emperor, AIR 1927 Lah. 274; and Kamala Kanta Roy Choudri v. Emperor (1938) ILR 1 Calcutta 98. In Dandapani Ayyar v. Sirkar and Top v. State it was even been pointed out that in doubtful cases court should not resort to joint trials. 12. Having found that the trial was illegal we have to allow the appeal and quash the convictions and sentences. We order accordingly. Counsel for the appellant stated that on the merits the conviction cannot be sustained. In our opinion the appellant must stand a fresh trial. 12. Having found that the trial was illegal we have to allow the appeal and quash the convictions and sentences. We order accordingly. Counsel for the appellant stated that on the merits the conviction cannot be sustained. In our opinion the appellant must stand a fresh trial. The case against him is remitted to the lower court for trial de novo according to law. Pending notice from that court the appellant will remain on the same bail as now. Allowed.