H. A. BOREGOUDA v. STATE OF MYSORE — 1972 DIGILAW 257 (KAR)

( 1 ) THE petitioner has been convicted of an offence under S. 408, IPC and sentenced to rigorous imprisonment for a period of 2 years and to pay a fine of Rs. 200 in default to undergo simple imprisonment for a period of 2 months by the learned First Class Magistrate at Hassan in CC. No. 708/ 1969. The appeal filed by him has been dismissed by the learned Sessions judge of Hasan and the conviction and sentence passed on him has been confirmed. In this revision, the petitioner challenges the legality and correctness of the said order of conviction and sentence passed on him. ( 2 ) THE Sub Inspector of Police, Dudda filed a charge-sheet against the accused alleging that the accused who was the Honorary Secretary of the Service Co-operative Society of Halekoppal and who was incharge of cash transaction of the said society was entrusted with money transaction. The accused had misappropriated the cash balance of Rs. 10,500-76 belonging to the said Society received from the members towards the short-term loans and fine amounts of the Society and failed to produce the cash balance when demanded and thus committed an offence under Section 409, indian Penal Code. ( 3 ) SRI S. V. Shama Rao, learned Counsel appearing on behalf of the petitioner has contended that the consolidated charge-sheet for the period 1961 to 1965 filed against the accused is illegal. It is argued that this was not a case of running account and at the most the Court was entitled to try in one trial 3 offences of the kind mentioned in the charge-sheet. It is contended that clubbing of a number of offences is illegal and opposed to the provisions of S. 234 (1) of the Crpc. It is also argued that the proceedings taken up against the accused violated the proviso 2 of Sec. 222 of the crpc. Hence it is argued that the whole trial against the accused is vitiated and the conviction and sentence passed on him should be set aside. The learned Counsel has relied on a decision of this Court in Krishna murthy v. State of Mysore, 1964 1 Mys. L. J. 440. in support of the said contentions. Hence it is argued that the whole trial against the accused is vitiated and the conviction and sentence passed on him should be set aside. The learned Counsel has relied on a decision of this Court in Krishna murthy v. State of Mysore, 1964 1 Mys. L. J. 440. in support of the said contentions. ( 4 ) THE learned Government Pleader appearing on behalf of the state has argued that the accused never objected to the charge when the same was framed by the trial Court. It is also argued that even in the appellate Court this contention has not been urged on behalf of the petitioner and it is only for the first time in the High Court this contention is put forward on behalf of the petitioner. It is further contended that the accused has not shown how he has been prejudiced and has not pleaded that there is a failure of justice because of the defeat in the charge and S. 537 Crpc applies. The learned Government Pleader has strongly relied in State of AP. v. Ganeshwarao, AIR 1956 SC 149 . Chandi Prasad v. State of up, AIR 1963 SC 1850 . and Martandappa. v. State of Mysore, 1969 1 Mys. L. J. 310. in support of his contentions. ( 5 ) IT is clear from the records that the petitioner-accused never, in the triel Court, objected to the charge framed against him. He has nowhere contended that he has been prejudiced by this procedure followed by the trial Court. It is also clear that this contention has not been argued before the appellate Court on behalf of the petitioner. For the first time this argument is advanced in the High Court. Even before this Court, the Counsel has not stated how he has been prejudiced and that there has been a failure of justice. ( 6 ) IN pargraph 6 of his judgment, the learned Sessions Judge has observed as follows:" In the instant case, it is admitted that the appellant was working as an Honorary Secretary of the Service Co-operative Society at halekoppal. The accued has admitted that he has received the moneys from PWs. 3 to 12 and PW. 14 who discharged the loans by paying him under the receipts P5, P11, P13 to P16; P17 and P17 (a), vide question No. 3 and the answer to it. . . . . The accued has admitted that he has received the moneys from PWs. 3 to 12 and PW. 14 who discharged the loans by paying him under the receipts P5, P11, P13 to P16; P17 and P17 (a), vide question No. 3 and the answer to it. . . . . . . . "again at paragraph 7 of his judgment, the learned Sessions Judge has pointed out as follows:". . . . . The receipt of these payments from these witnesses by the accused is conceded. He has not produced these amounts before the auditor or paid it to the Central Co-operative Bank as required by the Rules. . . . . . . "further the evidence discloses that the accused made endorsements in the cash book dt. 4-5-1965 wherein he has written that the balance of Rs. 10,500-76 received, is in his custody. It is clear from what has been stated above that the accused has admitted that he had received moneys paid by PW. 3 to PW. 12 and PW. 14 and had issued receipts to them acknowledging the receipt of the amount. Further the accused has admitted that this amount of Rs. 10,500-76 has been received by him and that he had not accounted for this amount, nor has he deposited the amount in the Central Co-operative bank as per rules. ( 7 ) IN State of AP v. Ganeshwara Rao, their Lordships of the supreme Court have pointed out that where an objection was raised in regard to misjoinder, the Court has to consider whether prejudice has been caused to the accused and the accused has raised objection at the earliest point of time. The conviction of the accused in the trial Court cannot be set aside unless it in fact came to the conclusion that the accused were embarassed in their defence with the result that there was a failure of justice. In paragraph 33 of the judgment, their Lordships of the Supreme court have observed as follows:". . . When an objection is taken at an early stage, there is time enough to rectify an error. But in the case before us no objection was taken to multiplicity or misjoinder of charges before the learned additional Sessions Judge and it was only in the High Court that the point was raised. . . When an objection is taken at an early stage, there is time enough to rectify an error. But in the case before us no objection was taken to multiplicity or misjoinder of charges before the learned additional Sessions Judge and it was only in the High Court that the point was raised. In such circumstances what the Court has to consider is whether prejudice in fact has been caused to the accused by reason of multiplicity of charges or misjoinder, if any, of the charges. This is quite clear from the provisions of S. 537 of the Code as amended by Act 26 of 1955. In Ilie (William) Slaney v. State of MP. ( (1955) 2 SCR 1140 : all the learned Judges were in agreement on the point that this Section and S. 535 cover every case in which there is departure from the rules set out in Ch. XIX ranging from error omissions, and irregularities in charges that are framed down to charges that might have been framed and were not and include a total omission to frame a chage at all at any stage of the trial. The whole question has again been examined by this Court recently in Birichh Bhuian v. State of Bihar (Crl. App. 224 of 1960 dt. 20-11-1962): (AIR 1963 SC1120 ). Subba Rao, J. , who delivered the judgment of the Court has stated the position thus: to summarise, a charge is a precise formulation of a specific accusation made against a person of an offence alleged to have been committed by him. Ss. 234 to 239 permit the joinder of such charges under specified conditions for the purpose of a single trial. Such a joinder may be of charges in respect of different offences committed by a single person or several persons. If the joinder of charges was contrary to the provisions of the Code, it would be a misjoinder of charges. S. 537 prohibits the revisional or the appellate Court from setting aside a finding, sentence or order passed by a Court of competent jurisdiction on the ground of such a misjoinder unless it has occasioned a failure of justice. Even if we were to assume that there has been a misjoinder of charges in violation of the provisions of Ss. S. 537 prohibits the revisional or the appellate Court from setting aside a finding, sentence or order passed by a Court of competent jurisdiction on the ground of such a misjoinder unless it has occasioned a failure of justice. Even if we were to assume that there has been a misjoinder of charges in violation of the provisions of Ss. 233 to 239 of the Code, the high Court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that misjoinder had occasioned failure of justice. This decision completely meets the argument based upon R. v. Dawson ( (1960) 1 All. ER. 558 ). Merely because the accused persons are charged with a large number of offences and convicted at the trial the conviction cannot be set aside by the appellate Court unless it in fact came to the conclusion that the accused persons were embarassed in their defence with the result that there was a failure of justice. For all these reasons we cannot accept the argument of learned Counsel on the ground of misjoinder of charges and multiplicity of charges. " ( 8 ) AGAIN in Chandi Prasad v. State of UP. , in paragraph 9 of their judgment dealing with a similar case, their Lordships of the Supreme Court have observed as follows:" It is next contended that there has been a violation of S. 234 of the crpc in that the appellant had been charged with three offences under s. 409 and one under S. 477a. But the case is governed by S. 235, as the several offences under Ss. 409 and 477a arise out of the same acts and form part of the same transaction. Moreover, the appellant has failed to show any prejudice as required by S. 537. This objection must accordingly be overruled. But the case is governed by S. 235, as the several offences under Ss. 409 and 477a arise out of the same acts and form part of the same transaction. Moreover, the appellant has failed to show any prejudice as required by S. 537. This objection must accordingly be overruled. " ( 9 ) THIS Court in Martandappa v. State of Mysore after distinguishing the earlier case of Krishnamurthy v. State of Mysore (1) relied on by the learned Counsel for the accused, has pointed out relying on the decisions of the Supreme Court that an appellate Court cannot set aside a conviction and sentence unless it found that the misjoinder had in fact occasioned failure of justice, and the Court had also to take into consideration the fact that the accused had not at any stage of the trial taken objection to the joinder of charges. ( 10 ) AS already pointed out, the accused has not urged either before the trial Court or the appellate Court the present contention put forward on his behalf. Even in this Court, the petitioner has not shown how he has been prejudiced and whether there has been any failure of justice on account of the procedure followed by the trial Court. As already pointed out the acused has admitted having received the various sums from ditferent witnesses mentioned above and has also passed receipts. He has also acknowledged in writing that he had this sum of Rs. 10,500-76 and has not accounted for the same. It cannot therefore be said that the accused has in any way been prejudiced by the Court by not observing the provision of S. 234 (1) of the Crpc. It has not been contended that there has been any failure of justice in the case. I am therefore of opinion that there is no force in the contention urged on behalf of the petitioner by the learned Counsel and S. 537 Crpc applies to the facts of the instant case. ( 11 ) THE learned Counsel has finally submitted that the sentnce passed by the accused deserves to be reduced. It may be pointed out that the accused has committed criminal breach of trust to the extent of Rs. 10,500-76 and in the circumstances of the case, it cannot be said that the sentence passed is either severe or harsh. ( 11 ) THE learned Counsel has finally submitted that the sentnce passed by the accused deserves to be reduced. It may be pointed out that the accused has committed criminal breach of trust to the extent of Rs. 10,500-76 and in the circumstances of the case, it cannot be said that the sentence passed is either severe or harsh. ( 12 ) FOR the reasons mentioned above, there is no merit in the revision petition and the same is dismissed. --- *** --- .