DINKARRY RUGHNATH v. STATE — 1961 DIGILAW 86 (GUJ)

J. M. SHELAT, J. ( 1 ) ON behalf of the accused Mr. Mankad raised certain questions of law regarding the jurisdiction of the learned trial Judge and misjoinder of charges. Briefly stated his contentions were as follows: (1) That the learned special Judge had no jurisdiction to try the accused on the charge under sec. 477a of the Penal Code. (2) That the trial suffered from illegality as the charges were in contravention of secs. 233 and 234 of the Code of Criminal Procedure inasmuch as the offences of criminal breach of trust under sec. 409 of the Penal Code and misconduct arising from the acts of criminal breach of trust and falsification of accounts in respect of the sums of Rs. 40/rs. 15/and Rs. 392/could not be joined together and the accused could not be validly tried in one joint trial (3) That the acts of misconduct as defined in sec. 5 (1) (c) of the Prevention of Corruption Act were in respect of four distinct sums viz. ; Rs. 40/ Rs. 15/rs. 20/and Rs. 392/and as the provisions of sec Z. (2) of the Code of Criminal Procedure only apply to a charge of criminal breach of trust but not to an act of misconduct the accused could not be tried on these charges together with charges under sec. 477-A of the Penal Code which were on two counts viz. (i) in respect of Rs. 40/and Rs. 15 and (ii) in respect of Rs. 392. 00. These charges would hot fall under sec. 234 of the Code as these were not offences of the same kind ands therefore there was multiplicity of charges; and (4) That the jurisdiction of the learned Special Judge was derived from a valid sanction to prosecute the accused; but as there was no valid sanction in regard to the sum of Rs 392/the learned Special Judge had no jurisdiction to try the accused in respect of that amount under sec. 409 of the Penal Code. ( 2 ) THE question raised by Mr. Mankad is in reality two-fold (1) whether the learned Special judge was right in joining in one trial charges; in respect of offences under sec. 409 of the Penal Code with offences under sec. 5 (1) (c) of the Prevention of Corruption Act with reference to the three sums of Rs. 40/rs. 15/and Rs. 20/which according to Mr. Mankad is in reality two-fold (1) whether the learned Special judge was right in joining in one trial charges; in respect of offences under sec. 409 of the Penal Code with offences under sec. 5 (1) (c) of the Prevention of Corruption Act with reference to the three sums of Rs. 40/rs. 15/and Rs. 20/which according to Mr. Mankad were acts of misconduct each in itself a completed offence; and (2) whether the learned Special Judge had jurisdiction to try the accused on the charge under sec. 477a of the Penal Code as his jurisdiction was confined to offences enumerated in secs. 6 and 7 of the Criminal Law (Amendment) Act 1952 and the offence under sec. 477a was not one of them and therefore was triable by the learned Sessions Judge Kutch as the offence arose within the jurisdiction of that judge. ( 3 ) RELYING on Umer Saheb Bura Saheb Inamdar v. State LXI Bom. L. R. 1001 Mr. Mankad contended that this was an infringement of a provision as to the manner of trial and not merely an irregularity as to misjoinder of charges which can be cured under sec. 537 of the Code of Criminal Procedure and therefore such an infringement vitiated the entire trial. Now it is clear from the record that as the Special Judge Kutch had given sanction to prosecute the accused this case which was originally numbered as Special Case No. 8/1960 was assigned to the Special Judge Jamnagar who was specially appointed to try that case. As we have said the charge-sheet filed in the Kutch Court contained charges of criminal breach of trust of the aggregate sum of Rs. 467/consisting of Rs. 40/rs. 15/rs. 20/and Rs. 392/of misconduct in respect of these sums and of falsification of accounts by making two false entries in respect of Rs. 40/and Rs. 15/on the one hand and of Rs. 392/on the other. The learned Special Judge Jamnagar felt that there would be four charges in all viz. one charge under sec. 409 of the Penal Code one under sec. 5 (1) (c) of the Prevention of Corruption Act and two charges under sec. 477a of the Penal Code and therefore as a matter of caution he split up the charges into two separate trials. one charge under sec. 409 of the Penal Code one under sec. 5 (1) (c) of the Prevention of Corruption Act and two charges under sec. 477a of the Penal Code and therefore as a matter of caution he split up the charges into two separate trials. ( 4 ) IT was contended that the learned Special Judge had no jurisdiction to try the accused under sec. 477a even in a separate trial as these charges were not in regard to an offence in respect of which the Criminal Law Amendment Act conferred jurisdiction upon the learned Special Judge. So far as Special Case No. 1/1960 was concerned it was argued that a charge for the aggregate sum misappropriated can be framed under sec. 222 (2) of the Code of Criminal Procedure. The rule in that section however did not apply to an offence under sec. 5 (1) (c) of the Prevention of Corruption Act and therefore there were more than three charges in respect of offences which were not of the same kind and therefore there was infringement of sec. 234 of the Code. It was also contended that sec. 235 of the Code could not apply as these acts could not be said to be acts arising from the same transaction. Making a false entry or entries to screen a single act of defalcation may constitute the same transaction but not the making of false entries to cover up several acts of breach of trust. In other words if an accused were to commit three acts of misappropriation and to cover them up he were to make false entries a false entry made to screen the corresponding sum misappropriated may be an act in the same transaction but not the entries made to screen the other two acts of misappropriation. ( 5 ) MR. Mankad relied principally upon two decisions in Emperor v. Manant K. Mehta XXVII Bom. L. R. 1343 and D. K. Chandra v. The State LIII Bom. L. R. 928. In Emperor v. Manant K. Mehta the accused was convicted at one trial on three charges of criminal breach of trust in respect of three amounts of money on different dates within the span of one year and also on three more charges of falsification of accounts with reference to the same three items. L. R. 928. In Emperor v. Manant K. Mehta the accused was convicted at one trial on three charges of criminal breach of trust in respect of three amounts of money on different dates within the span of one year and also on three more charges of falsification of accounts with reference to the same three items. It was held that the joinder of charges was illegal and vitiated the trial; for the two offences combined were not of the same kind within the meaning of sec. 234 of the Criminal Procedure Code nor were the different misappropriations and false entries so connected as to form part of the same transaction within the meaning of sec. 235 of the Code. At page 1345 of the report Coyajee J. upheld the contention on behalf of the defence that the charge alleged more than three distinct offences; that it was not covered by sec. 234 of the Code inasmuch as offences of criminal breach of trust and of falsification of accounts were not offences of the same kind. He negatived the plea on behalf of the State that the case would fall under sec. 235 on the ground that there were three defalcations committed on different occasions and the false entries connected with one defalcation cannot be said to form part of the same transaction with the other defalcations and falsifications. Referring to this misjoinder of the charges Fawcett J. who formed the Bench with Coyajee J. however observed at page 1342 of the report that in the case of an alleged embezzlement there is generally evidence of falsification of accounts to conceal that embezzlement and unless the Magistrate knows or has his attention drawn to the rulings of the Courts about the illegality of joining three charges of embezzlement with three charges of connected falsification of accounts he not unnaturally would think that they can be the subject of one trial and was very likely to fall into the error that occurred in that case. He then observed as follows: ( 6 ) IF the Magistrate had been aware of the danger and exercised a little more care he might I think (at any rate according to the view adopted in Raman Behari Das v. Emperor; I. L. R. 41 Cal. He then observed as follows: ( 6 ) IF the Magistrate had been aware of the danger and exercised a little more care he might I think (at any rate according to the view adopted in Raman Behari Das v. Emperor; I. L. R. 41 Cal. 722) have legally framed his charge so as to comprise only one offence of criminal breach of trust for the aggregate amount alleged to have been embezzled and one other offence for the entire falsification of the accounts in regard to that embezzlement ( 7 ) SINCE however the charge was not framed taking the benefit of sec. 222 (2) of the Code but had been framed on three distinct occasions of acts of misappropriation and three items of falsification of accounts Fawcett J. said that they had no option but to set aside the order of conviction of the accused passed by the learned Magistrate. The decision in Raman Behari Das v. Emperor (1913) I. L. R. 41 Calcutta 722 referred to by Fawcett J. was also a case in which sec. 222 (2) of the Code of Criminal Procedure was not taken advantage of. There were in fact in that case also three separate charges under sec. 409 and in addition there were three charges under sec. 477a of the Penal Code. It was there held that a joinder of three charges under sec. 409 with three under sec. 477a of the Penal Code relating to different transactions was not warranted by any of the exceptions provided in the Code and was therefore illegal. While holding that the six charges before them could not validly be joined together in a single trial the learned Judges deciding that appeal observed that a series of falsification of accounts made to cover a single act of defalcation may be laid in one charge under sec. 477a of the Penal Code and would not constitute distinct offences merely by reason of the plurality of false entries intended to cover the same defalcation. At page 725 of the report the learned Judges also pointed out that it was not necessary for the trial Judge to have drawn up three charges under sec. 477a. A series of alterations in accounts made to cover a defalcation might all be covered in one charge under the provisions of sec. At page 725 of the report the learned Judges also pointed out that it was not necessary for the trial Judge to have drawn up three charges under sec. 477a. A series of alterations in accounts made to cover a defalcation might all be covered in one charge under the provisions of sec. 477a and there would not be three distinct offences committed by an accused person merely by reason of the fact that he made more than one false entry to cover up one defalcation. They also observed that false entries in that case could only relate to one defalcation. It was impossible to take a series of false entries referring to three different defalcations in the same trial although it might be possible to try three defalcations in one charge or to try a whole series of falsified accounts in one charge. The two could not be combined in the manner in which they were combined in that case. The observations made at pages 725 and 726 of the report in Raman Beheri Dass case would seem to lay down (1) that defalcations of various sums can be lumped into one charge under sec. 409 of the Penal Code by virtue of sec. 222 (2) of the Code of Criminal Procedure; (2) that the learned Judges were not quite sure that the charges under sec. 477a need be drawn up separately corresponding to entries in respect of each item of misappropriation and (3) while observing that it was impossible to take a series of false entries referring to three different defalcations in the same trial they stated that it might be possible to try these defalcations in one charge under sec. 409 of the Penal Code and to try the whole series of falsified accounts in one charge under sec. 477a of the Penal Code. It was on the authority of this decision that Fawcett J. in Manants case expressed the view that there can legitimately be one charge of criminal breach of trust under sec. 409 in respect of the aggregate amount defalcated by an accused and one charge Under sec. 477a of the Penal Code in respect of the false entries made to cover up the misappropriation of the several amounts. In D. K. Chandra v. The State LIII Bom. L. B. 928 relied upon by Mr. Mankad the accused was charged under sec. 409 in respect of the aggregate amount defalcated by an accused and one charge Under sec. 477a of the Penal Code in respect of the false entries made to cover up the misappropriation of the several amounts. In D. K. Chandra v. The State LIII Bom. L. B. 928 relied upon by Mr. Mankad the accused was charged under sec. 409 of the Penal Code for having committed criminal breach of trust on April 12 1949 in respect of a sum of Rs. 2500 and he was also charged alternatively for an offence under sec. 420 of the Renal Code for cheating in respect of the same sum on the same day. He was further charged for an offence under sec. 409 of the Penal Code committed on April 20 1949 in respect of a sum of Rs. 900/and he was also charged alternatively for an offence under sec. 420 of the Penal Code in respect of the same amount on the same day. The accused was thus tried on four charges. Considering the decision in Manants case the Full Bench held that such joinder of charges against the accused did not fall under any of the three exceptions to sec. 233 of The Code and was therefore illegal and contrary to law. It was also held that it contravened the provisions of sec. 234 (1) of the Criminal Procedures Code as the accused was charged with more than three offences and the offences ware not of the same kind. It also contravened the provisions of sec. 235 (1) of the Code as the four offences did not arise out of the same transaction. ( 8 ) IT may be observed that these three decisions deal with cases where the benefit of sec. 222 (2) of the Code of Criminal Procedure was not taken. It also contravened the provisions of sec. 235 (1) of the Code as the four offences did not arise out of the same transaction. ( 8 ) IT may be observed that these three decisions deal with cases where the benefit of sec. 222 (2) of the Code of Criminal Procedure was not taken. In all the three of them the acts of misappropriation committed on different dates were made the subject matter of separate charges and to these three charges were added other charges of falsification of accounts in respect of the corresponding sums defalcated as in Manants case and in Raman Behari Dass case and two acts of cheating as in D. A. Chandras cases It is obvious that since there were separate charges in respect of each defalcation and separate charges also in respect of each false entry made to cover a particular defalcation one falsification of account and the corresponding act of defalcation to screen which that false entry was made only were held to be acts arising from the same; transaction. On that reasoning it must follow that other falsification of accounts made to cover the other two acts of defalcations cannot be said to be acts arising out of the same transaction. It must however be borne in mind that in neither of the two Bombay cases the question hinted in Raman Behari Dass case (I. L. R. . 41 Calcutta 722) was considered whether it was possible or not to join in one trial one charge framed under sec. 222 (2) of the Code in respect of an aggregate amount defalcated as one offence with one charge covering the entire falsification of accounts committed by making a series of false entries to cover up the defalcations made from time to time. Such a proposition does not appear to have been overruled or negatived at any rite in either of the two Bombay cases. ( 9 ) MR. Mankad however relied upon Kasi Vishwanathan v. Emperor; I. L. R. Rs. 30 Madras 328 as establishing the proposition that even if the amounts of defalcations were to be lumped up in one charge of criminal breach of trust under section 222 (2) of the Code they can at the most be regarded as offences of a similar kind under sec. 234 of the Code but they would not constitute one transaction. 30 Madras 328 as establishing the proposition that even if the amounts of defalcations were to be lumped up in one charge of criminal breach of trust under section 222 (2) of the Code they can at the most be regarded as offences of a similar kind under sec. 234 of the Code but they would not constitute one transaction. The case of Kasi Vishwanathan v. Emperor was also a case like Manants case where three distinct acts of misappropriation were charged separately together with three distinct acts of falsification of accounts and thus there were six distinct offences in all charged against the accused. It was observed that such a joinder of charges was illegal as these could not be regarded as acts arising from the same transaction. But that was in answer to the argument of the learned Public Prosecutor framed in a particular manner. It would be seen from page 339 of the report that the learned Public Prosecutor argued that under sec. 222 of the Code the three acts of criminal breach of trust could be regarded as one offence and that all the acts of falsification of accounts to conceal that offence could also be regarded as part of the same transaction within the meaning of sec. 235 of the Code. The answer that Benson and Wallis JJ. gave to this argument was that though it was true that sec. 222 of the Code provided for a charge being framed in respect of the gross sum misappropriated within twelve months from first to last and enacted that a charge so framed should be deemed to be a charge of one offence within the meaning of section 234 it did not provide that the acts so charged should be deemed to be one transaction within the meaning of sec. 235 of the Code. It is however clear from the observations made on that very page by the learned Judges that they were principally guided by the fact that in the case before them one charge of criminal breach of trust was not framed under sec. 222 (2) of the Code but it alleged three distinct offences under sec. 409 and three other distinct offences under sec. 477a of the Penal Code and therefore they said that there was nothing in the Code to justify such a charge. These observations indicate that the objection was that sec. 222 (2) of the Code but it alleged three distinct offences under sec. 409 and three other distinct offences under sec. 477a of the Penal Code and therefore they said that there was nothing in the Code to justify such a charge. These observations indicate that the objection was that sec. 222 (2) of the Criminal Procedure Code was not availed of with the result that there were acts of defalcations charged separately and joined with three acts of falsification of accounts and therefore these acts of the accused could not be said to be acts arising from the same transaction. With the greatest respect it is somewhat difficult to appreciate as to why in a case where an accused commits a series of acts of defalcations with a continued purpose and intent to defraud his acts cannot be said to be acts arising from the same transaction. In fact the observations made in Kasi Vishwanathans case that the several defalcations would not form one transaction were regarded as obiter dictum in Kashiram Jhunjhunwalla v. Emperor (1935) I. L. R. 62 Calcutta 808. Now it is not easy to give an exact definition of the word transaction but one may safely say that a transaction means a group of facts so connected together as to involve certain ideas viz. unity continuity and connection. In order to determine whether a group of facts constitutes one transaction it would be necessary to ascertain whether they are so connected together as to constitute a whole which could be properly described as a transaction. As observed by Costello J. in Kashirams case where a clerk or a cashier sets out to rob his employer having regard to the fact that sec. 222 (2) provides that he may be charged with having misappropriated the total of whatever sums he may have misappropriated in the course of any one year it is not unreasonable to say that for the purposes of the section that years illicit operations can be regarded as one transaction. As the word transaction is unfortunately not defined in the Code the meaning to be attached to it must be gathered from the context in which it occurs in various sections and illustrations. According to its dictionary meaning it means carrying through and suggests not necessarily proximity in time so much as continuity of action and purpose. In sec. As the word transaction is unfortunately not defined in the Code the meaning to be attached to it must be gathered from the context in which it occurs in various sections and illustrations. According to its dictionary meaning it means carrying through and suggests not necessarily proximity in time so much as continuity of action and purpose. In sec. 235 of the Code the phrase same transaction is used in a way which implies that there may be a series of acts yet they may be separated by interval of time but the essential is the progressive action pointing to the same object. This is illustrated by illustration (f) to sec. 235. Similarly in sec. 239 of the Code a series of acts separated by intervals of time are not excluded provided that those jointly tried have throughout been directed to one and the same object. If the accused started together for the same goal this would suffice to justify a joint trial even if incidentally one of the accused jointly tried had done an act for which the other may not be responsible. ( 10 ) IN Emperor v. Datto Hanmant Shahapurkar I. L. R. 30 Bombay 49 the question was whether the accused who were jointly in charge of trust funds which were defalcated could be jointly tried in one trial under sec. 239 of the Code. There is no doubt that the words same transaction occurring in sec. 239 must have the same meaning as those very words in sec. 235 (1) and it is for that purpose that the decision in Emperor v. Datto Hanmant Shahapurkar would be of use for our purpose. There it was held that sec. 222 of the Code clearly admitted of the trial of any number of acts of breach of trust committed within the year as amounting only to one offence. The section does not require any particular formulation of the accusation but only enacts that it is sufficient to show the aggregate offence without specifying the details. Though it dispenses with the necessity of amplification it does not prohibit enumeration of the particular items in the charge. Section 239 of the Code admits of a joint trial when more persons than one are accused of different offences committed in the same transaction. Though it dispenses with the necessity of amplification it does not prohibit enumeration of the particular items in the charge. Section 239 of the Code 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 section 239. It was further held that if the accused started together for the same goal this would suffice to justify a joint trial even if incidentally one of those jointly tried has done an act for which the other may not be responsible. The foundation for the procedure in section 239 is the association of two persons concurring from start to finish to attain the same end. ( 11 ) IN Prafulla Chandra Kharghoria v. Emperor A. I. R. 1931 Calcutta 8 the contention was that joinder of charges in respect of four false entries made for the purpose of defalcating Rs. 400/was contrary to sec. 234 of the Criminal Procedure Code. The charge framed in that case by the committing Magistrate was as follows :that you on or about the dates between 1st March 1929 and 13th March 1929 at Digboi being a clerk in employment under the Assam Oil Company Limited willfully and with intent to defraud falsified certain papers and accounts to wit the pay sheets of General Workshop and Boiler shop for the month of February 1929 (Ex. 3) by making false entries in respect of the aggregate sum of Rs. 400/in the totals under the column Nett Amount Payable at pp. 3 6 11 and 13 viz. : 1 Rs. 1937-10-0 for Rs. 1837-10-0 at p. 3. 2 Rs. 1180-1-0 for Rs. 1080-1-0 at p. 6. 3 Rs 1673 for Rs. 1573-0-0 at p. 11. 4 Rs. 849-8-0 for Rs. 749-8-0 at p. 13. which papers and accounts belonged to the said Assam Oil Company Limited your employer and thereby committed an offence punishable under sec 477-A I. P. C. and within my cognizance. 2 Rs. 1180-1-0 for Rs. 1080-1-0 at p. 6. 3 Rs 1673 for Rs. 1573-0-0 at p. 11. 4 Rs. 849-8-0 for Rs. 749-8-0 at p. 13. which papers and accounts belonged to the said Assam Oil Company Limited your employer and thereby committed an offence punishable under sec 477-A I. P. C. and within my cognizance. ( 12 ) SUHRAWARDY J. who delivered the judgment for the Bench dealing with this charge and the contention of misjoinder observed that when a person is charged with falsification of accounts any number of falsifications may be proved in order to sustain the principal charge of falsification What the accused was charged with in that case was that on certain dates between 1st and 13th March 1929 he falsified Ex. 3 by making four false entries by overcharging Rs. 100/on each occasion with the intention of misappropriating Rs. 400/at the end of the month when the amount was to be paid off. On these facts it was held that the real charge under sec. 477a was falsification of accounts and in order to support it there was no reason why the prosecution should be restricted only to three instances of falsification and not more. It was observed that if the intention of the accused was to defalcate a certain amount the actual method adopted in order to facilitate the defalcation ought to be taken as forming one transaction with the defalcation within the meaning of sec. 235 as part of res gestae. Similarly if the intention was to defalcate a certain amount any act done to achieve the object such as making false entries must form part of the same transaction. For this statement of the last Suhrawardy J. relied on the observations made in Raman Behari Dass case referred to above. In our view the decision in Prafulla Chandras case is an authority for the proposition that where an accused makes a number of false entries he can be tried on one charge of falsification of accounts and a charge in respect of each false entry as forming a distinct offence need not be framed. In our view the decision in Prafulla Chandras case is an authority for the proposition that where an accused makes a number of false entries he can be tried on one charge of falsification of accounts and a charge in respect of each false entry as forming a distinct offence need not be framed. This decision is also an authority for the proposition that if it is proved that the intention of the accused was to defalcate a certain amount the method adopted by him in order to facilitate the defalcation must be taken as forming one transaction with the defalcation within the meaning of sec. 235 (1) of the Code. ( 13 ) A case somewhat similar to the one before us was Kashiram Jhunjhunwalla v. Emperor (1935) I. L. R. Cal. 808. The prosecution case there was that Kashiram in his capacity as the manager and cashier of the complainant firm Hurdut Gopal Rai had in his charge certain cheque books which had been signed by the complainant to facilitate withdrawal of money from the bank when necessary. Taking advantage of the fact that these cheque books were in his possession the accused drew from the bank certain sums of money and misappropriated a part of those sums and then sought to cover up his defalcation by making entries on the counter-foils of the cheque books of amounts smaller than the sums for which the cheques were actually drawn and monies received by him. The main charge against him was that he had misappropriated a total sum of Rs. 2 200 which was made up of seven separate items. He was also charged with falsification in respect of two entries in the counter-foils and in his books of sums smaller than those actually drawn from the bank. He was in fact indicted on a charge of criminal breach of trust under section 408 and on two separate charges of falsification of accounts under section 477a of the Penal Code. He was also charged with falsification in respect of two entries in the counter-foils and in his books of sums smaller than those actually drawn from the bank. He was in fact indicted on a charge of criminal breach of trust under section 408 and on two separate charges of falsification of accounts under section 477a of the Penal Code. The learned Judges there held that if a person were charged with one offence namely that of misappropriation of a gross sum as provided in section 222 (2) then that one offence ought to be deemed to have arisen out of one transaction so as to enable the prosecution to join with it in the same trial a charge of some other offence constituted by the series of acts or some of the series of acts which connected together would form that transaction. They also observed that having regard to the fact that sec. 222 (2) provided that an accused may be charged with having misappropriated the total of whatever sums he may have appropriated in the course of any one year it was not unreasonable to say that for the purposes of that section the years illicit operations can be regarded as one transaction. Ghosh J. who was party to this judgment observed at page 818 of the report that where an accused was charged with one charge of criminal breach of trust and in respect of a portion of the money it was shown that he falsified the accounts in order to commit the misappropriation there could be no doubt that an act of criminal breach of trust formed the same transaction together with an act of falsification of accounts which was made in order to facilitate the breach of trust and the two charges of criminal breach of trust and falsification of accounts could be tried together under section 235 of the Code. ( 14 ) THUS the view of both the Bombay and the Calcutta High Courts is that where an accused commits acts of defalcations in pursuance of a deliberate and continuous purpose to defraud the several act of defalcations can legitimately be said to form one transaction though sec. 222 (2) of the Code while providing that those acts can be charged as one offence does not in terms describe them as one transaction. 222 (2) of the Code while providing that those acts can be charged as one offence does not in terms describe them as one transaction. With respect we agree with the reasoning contained in the judgments of Costello and Ghosh JJ. in Kashiram Jhunjhunwalla v Emperor (1935) I. L. R. . 62 Cal. 808 and of Russell and Batty JJ. in Emperor v. Datto Hanmant Shahapurkar (1906) I. L. R. 30 Bom. 49. We are further fortified in our conclusion by the Supreme Courts decision in Chandi Prasad Singh v. The State of Uttar Pradesh (1955) 2 S. C. R. 1035 where the appellant was tried for an offence under sec. 409 of the Penal Code for misappropriating certain sums of money received as a promoter of a Company from three different persons for the purpose of allotment of shares and omitted to be brought into the Company after it was formed and also for an offence under sec. 477 of the Penal Code for falsifying a minute book. On behalf of the defence a contention was raised that there was violation of sec. 234 of the Code in that the appellant had been charged with three offences under sec. 409 I. P. C. and one under sec. 477-A. That contention was negatived on the ground that the case was governed by sec. 235 of the Code as the several offences under sec. 409 and sec. 477-A I. P. C. arose out of the same acts and formed part of the same transaction. In order to appreciate as to how the several acts of misappropriation and falsification of accounts were said to arise out of the same transaction it would be necessary to state a few facts in that case. On February 12 1949 a Society known as the Model Town Co-operative Housing Society Ltd. was registered under the Cooperative Societies Act its object being to acquire vacant sites in Lucknow and to allot them to its members so as to enable them to build houses of their own. The accused was the chief promoter thereof are collected monies from prospective shareholders by way of share money. The first general body meeting of the Society was held on March 1 1949 At that meeting the appellant was elected the Honorary Secretary. The accused was the chief promoter thereof are collected monies from prospective shareholders by way of share money. The first general body meeting of the Society was held on March 1 1949 At that meeting the appellant was elected the Honorary Secretary. On April 22 1949 there was a meeting of the Managing Committee at which the appellant was directed to hand over the accounts of the society and its funds to its Treasurer. The appellant gave a list of 38 persons as members of the Society delivered cheques issued by 13 of them as their share money and paid a sum of Rs. 3500/being the amount stated to have been received by him from the other 25 members as share money. The Society did not function thereafter. In July 1949 some of the members wrote to the Registrar of Cooperative Societies pointing out that the Society had not functioned ever since its incorporation and asking that steps might be taken for examination of its accounts and if necessary for its being wound up. On this there was an investigation of the affairs of the Society and on the basis of the investigation reports prosecution was started against the accused charging him under secs. 407 and 477a of the Penal Code. The charge under sec. 407 was that he had received sums of Rs. 500/rs. 100/and Rs. 100/from three different persons all as share money in December 1948 and that he had misappropriated the same. The charge under sec. 477-A was that on April 22 1949 the accused falsified the minute books by omitting to show therein the share money received from the said three persons. On a contention raised by the defence on these charges on the ground that there was an infringement of sec. 234 of the Code viz. that the accused had been charged with three offences under sec. 407 and one under sec. 477-A it was held that the contention could not be sustained as the case was governed by sec. 235 of the Code as the several offences under sec. 407 and sec. 477-A 1. P. C. arose out of the same acts and formed part of the same transaction. ( 15 ) APROPOS the contention of Mr. Mankad that an infringement of sec. 235 of the Code as the several offences under sec. 407 and sec. 477-A 1. P. C. arose out of the same acts and formed part of the same transaction. ( 15 ) APROPOS the contention of Mr. Mankad that an infringement of sec. 234 of the Criminal Procedure Code would not be merely an irregularity but an infringement in the mode of trial we may observe that Their Lordships at page 1042 in this decision observed that the appellant had failed to show any prejudice as required by section 537 and on that basis also the defence contention as to the violation of sec. 234 was overruled. The decision in Chandi Prasads case is a clear case of a trial where the offences charged were more than three and not of the same kind as Contemplated by sec. 234 of the Criminal Procedure Code; but as we have observed the case was brought under sec. 235 of the Code and therefore the charges though more than three were held to be legal. Though there were three omissions to enter the three amounts received as share moneys all the three omissions were treated as one offence viz. falsification of accounts which could be joined under sec. 235 of the Code with the three offences of criminal breach of trust. ( 16 ) ON the authority of these decisions it is clear (1) that under sec. 222 of the Code several defalcations made at different times provided they are made within the course of one year can be joined together as one offence of criminal breach of trust; and (2) that such a charge can be joined with another charge or charges under sec. 477-A even though there may be a number of false entries made to cover several acts of defalcations provided the case falls under sec. 235 (1) of the Code. If false entries are made for the purpose of covering a defalcation their plurality would not preclude them from being joined in one charge. A charge under sec. 477-A is one of falsification of accounts and not for making false entries. False entries made for screening an offence of criminal breach of trust may therefore constitute one offence. ( 17 ) THE expression same transaction used in sec. 235 of the Code is difficult if not incapable of exact definition. A charge under sec. 477-A is one of falsification of accounts and not for making false entries. False entries made for screening an offence of criminal breach of trust may therefore constitute one offence. ( 17 ) THE expression same transaction used in sec. 235 of the Code is difficult if not incapable of exact definition. The question whether the acts are so connected together as to form one transaction or not would depend on the facts and circumstances of a particular case. It is not possible to lay down any comprehensive formula of universal application. The real and substantial test for determination of the question is the continuity of action and purpose. Under sec. 235 of the Code the first element to establish is a series of facts which would necessarily imply the acts being connected together; but this would not be enough and it would have to be established further that the acts formed the same transaction. Mere sequence in time may establish the first element but not necessarily the other. But the expression so connected together as to form the same transaction must be given a reasonable and rational meaning and cannot be stretched into series of acts which have no relation to each other. There must therefore be one continued thread of common purpose running through the acts to support a joinder of charges in respect thereof. However mere difference in time or place between the commission of one offence and of another will not necessarily imply want of such continuity. They may yet be linked together to form the same transaction. In our view this test has been complied with in the case before us. In that view it cannot be said that there was either any infringement in the mode of trial or that there was any misjoinder of charges. Therefore no question either of illegality of the trial or one of jurisdiction of the learned Special Judge can possibly arise. ( 18 ) AS regards the objection that the learned Special Judge had no jurisdiction to try the accused under sec. 477a of the Penal Code we think that in the view that we take viz. that the case fell within the purview of sec. 235 of the Criminal Procedure Code it was not necessary for the learned Special Judge to have split up the case in respect of the charge under sec. 477a of the Penal Code we think that in the view that we take viz. that the case fell within the purview of sec. 235 of the Criminal Procedure Code it was not necessary for the learned Special Judge to have split up the case in respect of the charge under sec. 477a of the Penal Code. Even if he did so by way of ex majore cautela it makes no difference as the acts of criminal breach of trust the acts of misconduct as defined in sec. 5 (1) (c) of the Prevention of Corruption Act and the acts of making false entries were acts arising out of the same transaction and therefore triable in one trial as contemplated by sub-section (3) of sec. 7 of the Criminal Law Amendment Act 1952 In our view the facts clearly disclose that the object of the accused was to defraud the Government of monies that came to him from time to time in his capacity as a clerk of the court and in-charge nazir of the Court at Nakhatrana. Though each act of defalcation may form a complete act each of such act was linked with the other by the continuity of purpose and action the main purpose of the accused being to defraud the Government. Each such act of defalcation was sought to be covered up or facilitated with the making of a false entry. In our view the facts in this case disclose a continuity of action and common purpose each act of defalcation and falsification of accounts being related to each other the main purpose being to defraud the Government. In any event there is nothing to show that any prejudice was caused by the joinder of these charges in one trial. For these reasons the contentions raised by Mr. Mankad cannot be upheld. ( 19 ) APPEAL dismissed. .