NATWARLAL CHATRABHUJ SHAH v. STATE — 1971 DIGILAW 8 (GUJ)

Y. D. DESAI, J. ( 1 ) THIS revision petition is filed by Natwarlal Chatrabhuj Shah original accused No. 2 who along with Opponent No. 2 Karadia Varjang Naran who was accused No 1 in Criminal Case No. 2145 of 1968 filed in the Court of the Judicial Magistrate First Class Mangrol. The petitioner-original accused No. 2 was the Secretary and Opponent No. 2 original accused No. 1 was the President of the Dhelana Multipurpose Co-operative Society for the years 1965-66 and 1967-68. The petitioner and opponent No. 2 will hereinafter be referred to as accused Nos. 2 and 1 respectively. ( 2 ) THE Co-operative Society was doing the business of distributing sugar and giving loans to its constituents. It was the duty of accused No. 2 to collect the amount from the members of the Society and to pass receipts in token of monies given to write account-books and to maintain all accounts of the working of the Society. The accounts of the said Society had been audited on or about 7-6-1966 for a period from 1-5-1965 to 31-5-1966. The auditor who inspected the accounts felt the necessity of inspecting the accounts of the period subsequent to 31-5-1966. One Mr. R. A. Parikh sub-auditor for the purpose of auditing the accounts of the Society on 20-8-1967 went to the office of the Society at Dhelana which was being maintained in the house of accused No. 1 and he was informed by accused No. 1 that accused No. 2 had taken away the books of accounts and sum of Rs. 2300. 00. Mr. Parikh then went to Rudalpur where accused No. 2 was staying and he was informed by the accused No. 2 that the books of the Society were with accused No. 1 and not with him. Subsequently on a report being made one Dolatshanker Pandya Assistant Co-operative Societies Officer went to the office of the Society in September 1967 and attached from the cup-board in the office of the Society at the house of accused No. 1 the books containing the resolutions of the society and one book of counter foils of receipts issued by accused No. 2. It was found that between 1-6-1966 and 25-4-1967 a sum of Rs. 18 864 P. had been misappropriated. Subsequently a complaint came to be filed against both the accused Nos. It was found that between 1-6-1966 and 25-4-1967 a sum of Rs. 18 864 P. had been misappropriated. Subsequently a complaint came to be filed against both the accused Nos. 1 and 2 charging them with having committed criminal breach of trust as also abetting the offence as also under sec. 201 read with sec. 114 of the Indian Penal Code for causing the disappearance of the account-books of the Society. ( 3 ) IN the course of the trial the learned Magistrate framed charges in the alternative charging accused No. 1 under sec. 406 and sec. 408 read with sec. 109 Indian Penal Code and accused No. 2 i. e. the present petitioner under sec. 406 read with sec. 109 Indian Penal Code and also under sec. 408 Indian Penal Code. Both of them were also charged under sec. 201 read with sec. 114 of the Indian Penal Code. ( 4 ) THE learned Magistrate convicted the accused No. 1 for the offence under sec. 406 Indian Penal Code and the accused No. 2 the present petitioner under sec. 406 read with sec. 109 Indian Penal Code. He held that so far as the charge under sec. 201 read with sec. 114 Indian Penal Code had not been proved. With regard to the charge under sec. 408 and sec. 408 read with sec. 109 Indian Penal Code the learned Magistrate has recorded in his judgment while deciding points for determination bearing Nos. 4 5 and 6 that In view of the findings on points Nos. 1 2 and 3 in affirmative the said points are not decided. He sentenced the accused No. 1 to undergo R. I. for one year and to pay a fine of Rs. 1500/in default to undergo R. I. for 3 months for the offence under sec. 406 Indian Penal Code. Accused No. 2 was sentenced to undergo R. I. for one year and to pay a fine of Rs. 500/in default to undergo R. I. for 2 months for the offence under sec. 406 read with sec. 109 Indian Penal Code. 1500/in default to undergo R. I. for 3 months for the offence under sec. 406 Indian Penal Code. Accused No. 2 was sentenced to undergo R. I. for one year and to pay a fine of Rs. 500/in default to undergo R. I. for 2 months for the offence under sec. 406 read with sec. 109 Indian Penal Code. ( 5 ) THE learned Magistrate was of opinion that both the accused were acting in concert with each other and each of them was throwing the burden on the other for producing the account-books; that both the accused were interested in removing the account-books and that a resolution dated 20 of the Managing Committee had been got up since the members of the Managing Committee had not signed the proceedings in correctness and that this resolution postponing the payment of loans by the debtors of the Society was done by both the accused and of whom accused No. 2 had written the resolution. While holding that accused No. 2 petitioner had handed over the monies realised from the debtors of the Society he held that this misappropriation by accused No. 1 could not have been possible without active co-operation of the accused No. 2 and convicted and sentenced them as above. ( 6 ) ACCUSED No. 1 the president of the Society Varjang Naran filed Criminal Appeal No. 50 of 1969 against his conviction. Similarly the accused No. 2 the present petitioner filed Criminal Appeal No. 51 of 1969 in the Court of the Sessions Judge at Junagadh. Both the appeals were heard together by the learned Sessions Judge and he was of opinion that the learned Magistrate had lost sight of several circumstances which required consideration. He held that admittedly as also on the evidence led the accused No. 2 had received monies and passed receipts to as many as 24 persons and that in fact the cash amounts had remained with him. That in fact the accused No. 1 had informed the authorities including the police on three occasions viz. on 24-4-67 1 and in the month of July 1967 and also informed the sub-auditor and Assistant Cooperative Officer in July 1967 about the actions of accused No. 2 the applicant having taken away the books from him as also not accounting for Rs. 2300. 00. He also believed the evidence of Mr. on 24-4-67 1 and in the month of July 1967 and also informed the sub-auditor and Assistant Cooperative Officer in July 1967 about the actions of accused No. 2 the applicant having taken away the books from him as also not accounting for Rs. 2300. 00. He also believed the evidence of Mr. J. B. Joshi the Manager of the Co-operative Bank with which the Society had dealings and his evidence showed that no amounts had been credited with the Bank for the period from 10-1-1967 to 5-12-1967. He therefore was of opinion that the conduct of the accused No. 1 as also the fact that the account books had been removed by accused No. 2 who was daily dealing with them showed that the accused No. 1 did not entertain the requisite guilty intention to misappropriate the monies. He therefore held that it was the duty of accused No. 2 to deposit the monies in the Bank which he did not do nor did he deliver the same to accused No. 1 and that it was probable that it was the petitioner-accused No. 2 who had misappropriated the cash and therefore held that the accused No. 1 opponent No. 2 had been wrongly convicted for the offence under sec. 406 Indian Penal Code and altered the conviction of the petitioner-accused No. 2 to one under sec. 406 Indian Penal Code from his conviction for the offence under sec. 406 read sec. 109 Indian Penal Code. He held that the requirements of sec. 221 and sec. 222 sub-clauses (1) and (2)Criminal Procedure Code were fulfilled. He also held that the charges were framed in the alternative and that the evidence clearly shows that it was accused No. 2 the petitioner who had misappropriated the monies and that it was Open to him while considering the provisions of secs. 236 and 237 Criminal Procedure Code to alter the conviction of abetting the main offence to convict the petitioner of the main charge under sec. 406 Indian Penal Code. The learned Sessions Judge therefore altered the conviction of the petitioner to one under sec. 406 Indian Penal Code while maintaining the sentence already inflicted upon him. It is against this order that the accused No. 2 has preferred the present revision petition. ( 7 ) THE learned advocate representing the petitioner Mr. Gandhi emphasized that provisions under sec. The learned Sessions Judge therefore altered the conviction of the petitioner to one under sec. 406 Indian Penal Code while maintaining the sentence already inflicted upon him. It is against this order that the accused No. 2 has preferred the present revision petition. ( 7 ) THE learned advocate representing the petitioner Mr. Gandhi emphasized that provisions under sec. 428 (1) (b) did not empower the appellate Court to alter the finding of conviction and not the finding of acquittal and secondly that although there was no clear finding of the accused having been acquitted of the charge under sec. 408 read with sec. 109 Indian Penal Code it must be taken that they were acquitted of those charges and therefore it was not open to the learned Sessions Judge to convict the petitioner under sec. 406 Indian Penal Code. He has referred to me several rulings of the Supreme Court as also of the Gujarat High Court. They are:- (1) Ravishanker v. State of Gujarat A. I. R. 1966 Gujarat page 293 (2) Lakhan Mahto v. State of Bihar A. I. R. 1966 Supreme Court page 1742 (3) Kishan Singh v. Emperor A. I. R. 1928 Privy Council p. 254 (4) Tarachand v. State of Maharashtra A. I. R. 1962 Supreme Court p. 130 (5) Prabat Laxman v. State of Gujarat A. I. R. 1962 Gujarat p. 51 (II G. L. R. 1967) and (6) State of Andhra Pradesh v. T. Narayana A. I. R. 1962 Supreme Court p. 240. I would not at length go into the facts dealt with in each of the rulings since it has been uniformly held that the phrase alter the finding in sec. 423 (1) (b) has only one meaning and that is altering the finding of conviction and not the finding of acquittal. Our Supreme Court has held that reversing the finding must mean the finding of guilt. It is clear that sec. 423 ( b) applies to appeals against orders of conviction and sentence. The appellate Court in such a case can reverse the findings of conviction and acquit the accused or order a retrial but it cannot reverse the order of acquittal in favour of a party in respect of an offence alleged. It is clear that sec. 423 ( b) applies to appeals against orders of conviction and sentence. The appellate Court in such a case can reverse the findings of conviction and acquit the accused or order a retrial but it cannot reverse the order of acquittal in favour of a party in respect of an offence alleged. It is clear that reversal of an order implies its obliteration where as alteration thereof would stand to imply no more than modification and not its obliteration. See A. I. R. 1966 Supreme Court page 240. The same meaning is attributed to reversal or altering of a finding in Jayram v. State of Bombay A. I. R. 1956 Supreme Court p. 146. It is held therein that there is a clear distinction between the reversal of finding and its alteration and sec. 423 (1) (b) provides that that where there is reversal the order to be passed is one of acquittal discharge or retrial where as in the case of alteration the order to be passed is one of maintaining reducing or altering the sentence. In view of this settled law on this point I have chosen not to discuss different facts connected with the rulings mentioned above. ( 8 ) I have already discussed the different charges leveled against different accused in the alternative by the learned Magistrate. The learned advocate was heard to emphasise that since charges under secs. 408 and 408 read with sec. 109 Indian Penal Code leveled against the accused had not been held proved it must be taken that they were acquitted of that charge. However one cannot lose sight of the fact that the accused has been convicted as mentioned above for the charges under sec. 406 and sec. 406 read with sec. 109 Indian Penal Code which certainly is minor offence. It is surprising that the learned Magistrate while holding that the accused No. 1 was the President and the accused No. 2 was the Secretary of the Society did not choose to convict the accused under sec. 408 and sec. 409 Indian Penal Code which were the correct sections to apply. However the broad fact remains that their convictions are there for minor offence under sec. 406 Indian Penal Code. It is clear that the learned Sessions Judge has made the position also clear in his judgment holding that since the conviction under sec. 408 and sec. 409 Indian Penal Code which were the correct sections to apply. However the broad fact remains that their convictions are there for minor offence under sec. 406 Indian Penal Code. It is clear that the learned Sessions Judge has made the position also clear in his judgment holding that since the conviction under sec. 408 Indian Penal Code which was the proper section to apply he has to confine himself to the section under which the accused were convicted. ( 9 ) THE question then which arises for our consideration is whether the conviction under sec. 406 read with sec. 109 Indian Penal Code can be altered to one under sec. 406 I. P. C. against the petitioner. The question whether a person charged with substantive offences can be convicted for the abetment thereof has been answered by the Privy Council In Begu v. Emperor A. I. R. 1925 P. C. p. 130. The Supreme Court in Bhagar Ram v. State of Punjab A. I. R. 1954 Supreme Court 621 has observed that; In appropriate case the conviction may probably have been altered to one of abetment of an offence under sec. 409 of the Indian Penal Code. In short the question may depend on the facts of the case and the charge set out that the case falls within the ambit of sec. 237 Criminal P. C. It is clear that the trial Court has framed a charge in the alternative following the provisions of sec. 236 Cr. P. C. which is an exception to Sections 233 to 235 Cr. P. C. Sec. 236 provides both for the case where separate charges are required to be framed to meet changes as to what may eventually be taken to be proved by the Court as also where there is necessity to frame a charge in the alternative is there. I think that the powers under sec. 236 Cr. P. C. can even be exercised by the appellate Court where the same facts raise a doubt in the Court where the facts as disclosed from the evidence before the Court constitute an offence to some other offence. Thus these two secs. 236 and 237 Cr. I think that the powers under sec. 236 Cr. P. C. can even be exercised by the appellate Court where the same facts raise a doubt in the Court where the facts as disclosed from the evidence before the Court constitute an offence to some other offence. Thus these two secs. 236 and 237 Cr. P. C. appear to provide that an offender can be alternatively or cumulatively charged when it is doubtful whether the facts proved are capable of holding the offender guilty either of the principle offence or abetment of the offence when he is charged with the commitment of principle offence and vice versa. ( 10 ) IN the present case we have a converse case of the petitioner having been convicted of substantive offence though charged with abetment thereof. I respectfully agree with the decision in the State v. Ruplal Koeri A. I. R. 1953 Patna 394 where it has been held that an accused may be convicted of substantive offence even if he is charged only with the abetment of that offence; but not when he has been prejudiced in his defence of a case based on a substantive charge. This principle was also laid down in the rulings in Begu v. Emperor A. I. R. 1925 P. C. and in Kashmira Singh v. State of Madhya Pradesh A I. R. 1952 S. C. 159. Same is the principle laid down in the ruling in Emperor v. Jayanti Lal A. I. R. 1947 Sindh 130 and Sambasiva Mudali v. Emperor A. I. R. 1931 Madras 235 These rulings lay down the principle that where the accused are charged with an abetment of an offence they can be convicted of the substantive offence if the accused have not been prejudiced in their defence of the case based on a substantive charge. ( 11 ) IT is however true that in such an event what has to be seen is whether any prejudice is caused by such an alteration. If no such prejudice is caused an offender can be convicted if the evidence is such as to establish the charge that might have made and the accused knows what he is being tried for. If there is no failure of justice defects in the form of a charge may not be so material. If no such prejudice is caused an offender can be convicted if the evidence is such as to establish the charge that might have made and the accused knows what he is being tried for. If there is no failure of justice defects in the form of a charge may not be so material. ( 12 ) WE have therefore to see whether the applicant has been prejudiced in his defence with the charge as it stood. It is clear that the punishment under sec. 406 Indian Penal Code and for the charge under sec. 406 read with sec. 109 Indian Penal Code is the same. There is therefore no question of the petitioner having been convicted of any major charge. The only ground of the petitioner being prejudiced in his defence as submitted by the learned advocate for the applicant is that the applicant in his examination by the Court under sec. 342 Cr. P. C. has not been put a question thus giving an opportunity to the applicant to explain a circumstance which according to the learned advocate has been used as a circumstance against him for his conviction and that had reference to the allegation made by accused No. 1 that the petitioner was absconding after having taken away books and sum of Rs. 2300/. His second contention was that in fact it was evident from the prosecution evidence that the auditor found him at Rudalpur the place of his residence and therefore the story of his absconding with account-books was false and that if such a question had been put to him possibly he would have led the necessary defence. These were the only grounds of the accused being prejudiced in his trial and none else. What the learned Sessions Judge has done is to consider the circumstances of accused No. 1 having informed the authorities about the accused No. 2 taking away the account-books on 3 occasions mentioned above. for judging the question as to whether he could have swallowed the monies. He held that the monies were received by Accused No. 2 who had passed receipts for the same while preparing false counterfoils of the receipts. for judging the question as to whether he could have swallowed the monies. He held that the monies were received by Accused No. 2 who had passed receipts for the same while preparing false counterfoils of the receipts. He also held the monies had not been deposited in the bank for a fairly long period and the conduct of accused No. 1 in informing the authorities on three occasions all showed that accused No. 2 could not have paid Accused No. 1 the monies received by him to the accused No. 1 by the petitioner. It does not appear to a circumstance used against accused No. 2. Moreover in the course of the trial the alternative charge under sec. 408 Indian Penal Code was already staring the petitioner in the face. He was represented by a lawyer. Admittedly he was the Secretary of the Society and it was apparent to him that if the alternative charge under sec. 408 Indian Penal Code stood proved against him he could as well have been convicted under sec. 408 Indian Penal Code. The learned Sessions Judge does not seem to utilise the circumstance of the alleged absconding of the petitioner against him for the purposes of convicting him under sec. 406 Indian Penal Code. The learned Sessions Judge has also considered the question about the learned Magistrate relying on Ex. 81 the resolution said to have been passed by the Managing Committee of the Society. However holding that it was the duty of the petitioner to receive the monies and deposit in the Bank and there being no circumstances to show that he had handed over the monies to the accused No. 1 and the same being judged with the other circumstances connected with the conduct of the accused No. 1 he held that it was the accused No. 2 who received the monies and swallowed the same. In my opinion therefore no prejudice has been caused to the petitioner in his defence looking to the charge as it stood with the defence taken up by the accused No. 1 it was possible and even perhaps necessary for the accused No. 2 to have led evidence or to have shown circumstances from the evidence of the prosecution witnesses that in fact he had actually delivered that amounts which he had received from the constituents of the Society from time to time. In my opinion therefore the learned Sessions Judge was entitled in law to after the conviction of accused No. 2 from one under sec. 406 read with sec. 109 Indian Penal Code. ( 13 ) THE result therefore is that this application must fail. ( 14 ) THE application is rejected and the finding of the learned Sessions Judge is confirmed. Rule is discharged. Bail bonds cancelled. Application dismissed. .