H. A. Boregowda v. The State of Mysore — 1972 DIGILAW 648 (MAD)

Order.- The petitioner has been convicted of an offence under section 408, Indian Penal Code, 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 C.C. No. 708 of 1969. The appeal filed by him has been dismissed by the learned Sessions Judge of Hassan and the conviction and sentenced 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 Cooperative 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, leamed 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 section 234 (1) of the Criminal Procedure Code. It is also argued that the proceedings taken up against the accused violated the proviso 2 of section 222 of the Criminal Procedure Code. 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 Krishnamurthy v. State of Mysore1in 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. The learned Counsel has relied on a decision of this Court in Krishnamurthy v. State of Mysore1in 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 defect in the charge and section 537, Criminal Procedure Code, applies. The learned Government Pleader has strongly relied on in State of Andhra Pradesh v. Ganeshwara Rao2; Chandi Prasad v. State of U.P.3 Martandappa v. State of Mysore4, in support of his contentions. 5. It is clear from the records that the petitioner-accused never, in the trial 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 paragraph 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 Cooperative Society at Halekoppal. The accused has admitted that he has received the moneys from P.Ws. 3 to 12 and P.W.14 who discharged the loans by paying him under the receipts P-5, P-11, P-13, to P-16, P-17 and P-17 (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 there 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, dated 4th May, 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 P.W.3 to P.W.12 and P.W.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 the State of Andhra Pradesh v. Ganeshwara Rao5, their Lordships of the Supreme Court have pointed cut 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 embarrassed 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. 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 section 537 of the Code as amended by Act XXVI of 1955. 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 section 537 of the Code as amended by Act XXVI of 1955. In Illie (William) Slaney v. State of Madhya Pradesh1all the learned Judges were in agreement on the point that this section and section 535 cover every case in which there is departure from the rules set out in Chapter 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 charge at all at any stage of the trial. The whole question has again been examined by this Court recently in Birichh Bhutan v. State of Bihar2Subba 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. Sections 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. Section 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 sections 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. Dawsan3. This decision completely meets the argument based upon R.v. Dawsan3. 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 embarrassed, 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 Uttar Pradesh4, in para. 9 of their judgment dealing with a similar case, their Lordsings of the Supreme Court have observed as follows: “It is next contended that there has been a violation of section 234 of the Criminal Procedure Code, in that the appellant had been charged with three offences under section 409 and one under section 477-A. But the case is governed by section 235, as the several offences under sections 409 and 477-A 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 section 537. This objection must accordingly be overruled.” 9. This Court in Martandappa v. State of Mysore5after distinguishing the earlier case of Krishnamurthy v. State of Mysore6relied 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 mis-joinder 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 accused has admitted having received the various sums from different 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. As already pointed out the accused has admitted having received the various sums from different 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 section 234 (1) of the Criminal Procedure Code. 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 section 537, Criminal Procedure Code, applies to the facts of the instant case. 11. The learned Counsel has finally submitted that the sentence 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. S.V.S. ----- Revision petition dismissed.