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2004 DIGILAW 1245 (PNJ)

Ranbir Kumar v. State Of Punjab

2004-11-09

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity `the Code) prays for quashing three orders dated 1.11.2004 (Annexures P.4 to P.6) passed by the Judicial Magistrate Ist Class, Patiala. The Magistrate has declined the request of the accused-petitioner for lumping together all the eight charges in the three different challans concerning criminal misappropriation and embezzlement in respect of different charges relating to the year 1989 on the ground that joinder of more than three charges in one challan is impermissible in law and that the prosecution evidence has already been completed. It has also been held that an order was passed on an earlier occasion declining the similar prayer with the observation that the objection could be raised at the time of arguments. 2. Facts which are necessary for deciding the controversy raised in the instant petition are that the accused petitioner was working as Secretary of Nagawa Coop. Society (for brevity `the Society) which fell within the territorial jurisdiction of Kamalpur. A complaint was filed by the Inspector Cooperative Societies, Kamalpur alleging that the accused-petitioner while working as Secretary of the Society retained cash in hand worth Rs. 61,064.34. The afore-mentioned amount in the hands of the accused-petitioner was collected from members of the society in the shape of recovery, interest, membership fee etc. w.e.f. 30.1.1989 till the date of registration of FIR i.e. 19.8.1989. The accused-petitioner allegedly mis-appropriated the amount and is alleged to have mis-utilised the same for his personal use thereby causing a loss to the society. In accordance with the resolution dated 2.6.1989 passed by the Society a request was made for registration of the case against the accused-petitioner and for effecting recovery. On the basis of the afore-mentioned resolution FIR No. 178 dated 19.8.1989 under Section 408 read with Section 406 IPC was registered at P.S. Sadar, Patiala, against the accused-petitioner. Thereafter three challans were presented against the accused-petitioner alleging mis-appropriation for different periods. The first challan is reflected in the impugned order Annexure P-4. It alleges mis-appropriation on three dates on viz. 30.1.1989, 6.2.1989 and 18.2.1989. The second challan also specifies mis-appropriation on three dates viz. 27.2.1989, 28.2.1989 and 11.8.1989 and the third one alleges mis-appropriation on two dates i.e. 16.3.1989 and 18.3.1989. The first challan is reflected in the impugned order Annexure P-4. It alleges mis-appropriation on three dates on viz. 30.1.1989, 6.2.1989 and 18.2.1989. The second challan also specifies mis-appropriation on three dates viz. 27.2.1989, 28.2.1989 and 11.8.1989 and the third one alleges mis-appropriation on two dates i.e. 16.3.1989 and 18.3.1989. At the time of framing the charge it was submitted by the accused-petitioner that the allegations of the prosecution were the same and were spread over the period of less than one year. The prayer for consolidation of all the three charges was however declined by the trial Court by observing that the afore-mentioned objection could be agitated at the time of final arguments. 3. The prosecution has completed its evidence. When the case was fixed for evidence of the defence and arguments then an application was filed by the accused-petitioner with a prayer for lumping together all the charges. The basis of the argument was the provisions of Section 219 read with Section 212(2) of the Code. The trial Court, however, dismissed the application by observing that in one case the accused cannot be charged with criminal mis- appropriation on more than three counts whereas there were in total eight instances of mis-appropriation. The operative part of the order of the Magistrate in respect of the first challan Annexure P-4 is as under : "The present case is an outcome of an application moved on 8.8.1989 by the Assistant Registrar, Co-operative Societies, Samana on the ground of embezzlement of the total amount of Rs. 6,16,034 by the accused for different periods. Thereafter three different charge-sheets were filed against the accused and subsequently charge ordered to be framed against the accused in all the three charge-sheets submitted against the accused and the allegations in the present case being that of criminal breach of trust, joinder of more than three distinct offences of criminal breach of trust (at) one trial was not permissible as provided u/s 219 of the Cr.P.C. and in the present case the accused being charged for criminal misappropriation of three counts i.e. 30.1.1989, 6.2.1989 and 18.2.1989. In case the accused was charged for more than three transactions it would have rendered the trial illegal and accordingly the application under consideration being devoid of any merit it ordered to be dismissed." 4. In case the accused was charged for more than three transactions it would have rendered the trial illegal and accordingly the application under consideration being devoid of any merit it ordered to be dismissed." 4. Shri P.K. Gupta, learned counsel for the petitioner has argued that according to Section 212(2) read with Section 219 Cr.P.C. when an accused is charged with mis-appropriation of money then it is sufficient to specify the gross amount and the date between which the offence is alleged to have been committed without specifying particular items or exact dates. According to the learned counsel such a charge is to be deemed as charge of one offence within the meaning of Section 219 of Cr.P.C. Learned counsel has also argued that presentation of three challans and separate trials would prejudice the interest of the accused-petitioner. 5. After hearing the learned counsel at a considerable length I am of the considered view that the impugned orders passed by the Judicial Magistrate do not suffer from any legal infirmity warranting interference of this Court in exercise of powers under Section 482 of the Code. It would be appropriate to make a reference to Section 212(2) and Section of Cr.P.C. which reads as under : "212. Particulars as to time, place and person. - (1) The charge shall contain such particular as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other moveable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the moveable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or extact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 219 : Provided that the time included between the first and last of such dates shall not exceed one year." "219. Three offences of same kind within year may be charged together - (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any specific or local laws : Provided that, for the purposes of this section, an offence punishable under Section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under Section 380 of the said Code, and that offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence." 6. A conjoint reading of sub-section (2) of Sections 212 and 219 of Cr.P.C. makes it evident that both the provisions operate in different areas. Both the sections are distinct in their scope. Sub-section (1) of the Section 212 Cr.P.C. makes a general provision requiring that particulars as to time, place and person of the alleged offence be mentioned which may be reasonably sufficient to give the accused a notice of the matter with which he is charged. Sub-section (2) of Section 212 of the Code deals with the situation when there is dishonest misappropriation of property and the exact sum is not available then specifying the gross sum between the Ist and the last of the dates of mis-appropriation not exceeding one year would be considered as a charge of one offence within the meaning of Section 219 of the Code. There is not even any necessity of specifying any particular item or the date. In such a case, the accused may face difficulty because of lack of definiteness in respect of the date of dishonest mis-appropriation, the amount of mis- appropriation or the items of mis-appropriation. There is not even any necessity of specifying any particular item or the date. In such a case, the accused may face difficulty because of lack of definiteness in respect of the date of dishonest mis-appropriation, the amount of mis- appropriation or the items of mis-appropriation. However, in cases where the afore mentioned details are available, as is the case in hand, then Section 219 Cr.P.C. imposes a limit of three offences of same kind to be lumped together. In such cases the date of mis-appropriation, the amount, place and the items of mis-appropriation are specified in the challan as well as in the charge-sheet. In such a situation an accused has advantage of meeting the charge more effectively on account of furnishing of detailed particulars and definiteness of dates, places and amounts. Therefore, the limitation of lumping three offences of same kind within one year would be attracted. 7. The charge-sheet presented in the present case shows that in the first and second charges the allegations of dishonest mis-appropriation are on three counts viz., 30.1.1989, 6.2.1989, 18.2.1989 and 27.2.1989, 28.2.1989 and 21.8.1989 respectively. In the third challan the dishonest mis-appropration is alleged to be on two counts. Moreover, at the stage of framing charge a prayer was made for lumping together the charges which was declined with the observation that such an argument can be raised at the time of final arguments. If the application filed by the accused-petitioner is allowed at this stage it would amount to reviewing the earlier order which is impermissible. Furthermore, the prosecution has completed its evidence and the case is fixed for evidence of the defence and arguments. It is not unknown that such like applications are piloted in order to earn delay. I am further of the view that by presenting three challans more elaborate opportunity has been afforded to the accused-petitioner and lumping together the charges might have resulted into some prejudice. Therefore, I am not inclined to interfere in the impugned order passed by the Ld. Magistrate. 8. The argument of the learned counsel that the accused-petitioner would suffer prejudice would not call for any detailed consideration because nothing has been brought on record to substantiate the prejudice which might be suffered because of three separate challans and charge-sheets. Therefore, I am not inclined to interfere in the impugned order passed by the Ld. Magistrate. 8. The argument of the learned counsel that the accused-petitioner would suffer prejudice would not call for any detailed consideration because nothing has been brought on record to substantiate the prejudice which might be suffered because of three separate challans and charge-sheets. The accused- petitioner is getting better opportunity to meet the charges more effectively than the one he would have got by lumping together. It is further pertinent to mention that any irregularity in framing of charge or an error in doing so cannot constitute a ground for setting aside the proceedings as has been provided by Section 464 of Cr.P.C. Therefore, there is no substance in the submission made by the learned counsel. For the reasons recorded above, this petition fails and the same is dismissed.