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1982 DIGILAW 472 (MAD)

C. Somasundaram v. State by Inspector of Police, C. C. W. C. I. D. , Coimbatore Urban

1982-12-06

M.N.MOORTHY

body1982
Judgment This is a petition filed under section 482, Criminal Procedure Code, to quash the proceedings pending against the petitioner in C.C. No. 33 of 1982 on the file of the Special Judicial First Class Magistrate, Coimbatore. 2. The petition arises under the following circumstances: The petitioner was the President of the Marudur Village Co-operative Agricultural Credit Society from 1970 to 1975. He was the Treasurer of the said Society in 1967 and was its Vice-President in 1968. As there was defalcation in the funds, a complaint was filed against the petitioner and one R.M. Meyappan, the Secretary, on 5th September, 1976. The case against them was that they collected certain amounts on 20th August, 1970, from a member and did not bring them into the account of the Society, thus committing criminal breach of trust and falsification of amounts. This was the subject-matter of C.C. No. 1 of 1982 in the Court of the Special Judicial First Class Magistrate, Coimbatore, under sections 409 and 477-A, Indian Penal Code. 3. A second complaint was filed against the petitioner and the Secretary on 4th January, 1978, alleging misappropriation of Society funds and falsification of accounts for the period commencing from 1968 to 1975. This was registered as Crime No. 1 of 1978. 4. A third complaint was filed on 29th September, 1978, against the petitioner and the Secretary and also against the officers of the Co-operative Department for the period from 1968 to 1975 which was registered as Crime No. 4 of 1978. It was alleged that all of them committed offences punishable under sections 120-B read with 409 and 477-A Indian Penal Code. 5. A charge-sheet was laid against the accused on the second complaint in Crime No. 1 of 1978. It is this charge-sheet proceeding which is sought to be quashed by the present petition. It is contended, the petitioner is prejudiced and handicapped as action was taken only on the second complaint, keeping in abeyance the third complaint, with a view to shape the third complaint on the defence taken by the accused in the second complaint. It is this charge-sheet proceeding which is sought to be quashed by the present petition. It is contended, the petitioner is prejudiced and handicapped as action was taken only on the second complaint, keeping in abeyance the third complaint, with a view to shape the third complaint on the defence taken by the accused in the second complaint. It is also alleged that the Police may suppress certain evidence in the present proceedings and produce the same in the third complaint which is likely to be filed involving public servants as well In fairness, they should proceed against the third complaint registered as Crime No. 4 of 1978 which is more comprehensive rather than the second complaint registered as Crime No. 1 of 1978. Action taken by the Police piecemeal is not permissible in law. It is submitted that the case filed against the petitioner and the Secretary in C. C. No. 1 of 1982 on the file of the Special Judicial First Class Magistrate, Coimbatore, ended in acquittal and the charge-sheet is now laid against them in C.C. No. 33 of 1982 for offences under sections 120-B read with 409 and 477-A, Indian Penal Code, in all for six charges, covering a period of six years from 1968 to 1974. It is alleged clubbing up of charges covering a period of more than one year in a single trial is illegal. There is a joinder of six charges and in respect of each charge, the petitioner is alleged to have committed two offences under sections 409 and 477-A, Indian Penal Code. Each charge covers a period of practically one year. According to the petitioner, section 218, Criminal Procedure Code, enjoins that for every distinct offence there shall be a separate charge and every such charge shall be tried separately. Section 219, Criminal Procedure Code, provides, offences must be of the same kind and they must have been committed within a space of one year and more than three offences should not be joined at one trial. The provisions are intended to prevent embarrassment and difficulty to the accused to defend himself. Hence, the joinder of six charges at one trial is not in accordance with law. 6. The provisions are intended to prevent embarrassment and difficulty to the accused to defend himself. Hence, the joinder of six charges at one trial is not in accordance with law. 6. It is also contended, a charge for the gross amount misappropriated within a period of twelve months should not be considered to be one transaction within the meaning of section 223, Criminal Procedure Code. The accused being tried for six distinct acts of criminal breach of trust and six distinct acts of falsification of accounts, thus twelve offences in all covering a period of six years, is opposed to section 218, Criminal Procedure Code. Falsification of accounts is not of the same land as the offence of criminal breach of trust. Hence, a charge of six distinct acts of criminal breach of trust and distinct acts of falsification of accounts covering a period of more than one year is an illegality which vitiates the trial. The proceedings against the petitioner in C.C. No. 33 of 1982 will have to be quashed. 7. The case against the petitioner and the Secretary of the Society pending in C.C. No. 33 of 1982 is that between November, 1968 and July, 1974, they were parties to a criminal conspiracy to commit offences of criminal breach of trust and misappropriation in respect of a total sum of Rs. 22,131-65 belonging to the Society, through falsification and manipulation of the accounts, an offence punishable under sections 122-B, Indian Penal Code, read with 409 and 477-A, Indian Penal Code. There are in all six charges against the accused, each charge alleging two offences of sections 409 and 477-A, Indian Penal Code, covering a period of one year. The point to be considered is whether joinder of six charges at one trial as contended by the learned counsel for the petitioner is not in accordance with law. 8. The learned Public Prosecutor refuted the contention of the learned counsel for the petitioner. Where offences are committed in pursuance of a conspiracy and the alleged offences are stated to have flown out of the conspiracy, the appropriate form of charge could be a specific charge in respect of each of the offences along with the charge of conspiracy. In support of his stand, he relied on a decision of the Supreme Court in K. Kuncha Mohammad v. State of Madras1. In support of his stand, he relied on a decision of the Supreme Court in K. Kuncha Mohammad v. State of Madras1. On the strength of the above decision, he argued in any one series of acts so connected as to form the same transaction more offences than one are committed by some persons, they are to be charged with and tried at one trial for every such offence. Therefore, where the alleged offences have been committed in the course of the same transaction, limitation as contemplated under section 219 (1), Criminal Procedure Code, cannot operate. 9. The learned Counsel for the petitioner had contended relying on the decision in Kasi Viswanathan v. Emperor2, that though a charge for the gross amount misappropriated within a period of twelve months shall be deemed to be a charge of one offence, it does not follow that the acts so charged should be considered as one transaction. 10. The learned Public Prosecutor submitted, in the above case, there was no charge for conspiracy and that would make all the difference. The offence of conspiracy and the offences committed in pursuance of it can be jointly tried and they must be deemed to form one and same transaction. This is the effect of the decision reported in In re Patri Venkata Hanumantha Rao and seven others1. The learned Public Prosecutor also drew my attention to a decision of the Supreme Court reported in State of Bombay v. Ularsaheb Nuransaheb Inamda2, wherein their Lordships of the Supreme Court observed when all the offences committed in pursuance of a conspiracy are committed in the course of the same transaction they can be tried together at one trial in view of section 235 (1), Criminal Procedure Code. Section 220 (1) of the present Code, which provides that, “if in, one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence.” 11. Bearing in mind the principles laid down in the decisions cited before me, I am of the view that the trial pending against the petitioner is not vitiated by infirmity in the charges. 12. I do not think it is necessary to say anything as regards the third complaint pending against the petitioner in Crime No. 4 of 1978. Bearing in mind the principles laid down in the decisions cited before me, I am of the view that the trial pending against the petitioner is not vitiated by infirmity in the charges. 12. I do not think it is necessary to say anything as regards the third complaint pending against the petitioner in Crime No. 4 of 1978. The contention of the petitioner that it is likely that the prosecution agency may suppress certain evidence in the present proceedings which is helpful to the petitioner and may produce it in the pending third case to its (Prosecution’s) advantage, is only to be stated to be rejected. 13. In the result I am unable to find any reason to quash the criminal proceedings pending against the petitioner in C.C. No. 33 of 1982 on the file of the Special Judicial First Class Magistrate, Coimbatore, and the petition will stand dismissed.