Broomfield, J. -
(1.) THE appellants have been convicted by the Sessions Judge of Aden of offences under Sections 409, 408, 420, 467 and 471 of the Indian Penal Code. Both of them were" employees of the Aden Settlement Executive Committee, No.1 Shapurji Sorabji being the Head Accountant and No.2 Jacob David the accounts -clerk. One of the functions of this body is to supply water to the public on payment. This is done for the most part by the sale of water tickets issued in books of sixteen for Rs. 9 per book. THE price was formerly Rs.12.Accused Nos. 1 and 2 were responsible for the sale of these books and for paying the money received into the bank. No.1 had the books in his charge and issued them as required. No.2 usually sold them except on Saturdays when No.1 himself did so. No.2 is a Jew and did not attend office on that day. From February 1, to June 1, 1934, No.2 was on leave and the witness Saleh Saleh A. Khalifa did his work for him. Particulars of the books sold, including the serial number, the name of the purchaser and so on, were entered in a register kept for the purpose and each ticket was impressed with the settlement stamp, which accused No 1 had in his charge. Towards the end of February 1935 the officials of the Water and Drainage Department, which is a department under the Executive Committee, discovered that water was being issued at the water stations in a quantity very largely in excess of what was accounted for by the sale of tickets entered in the sales register. It was also discovered that tickets not entered in this register were being presented at the water stations. On further investigation of the matter it was found that these unauthorised tickets to the number of 4100 books had been printed at a Press called the Caxton Press at Steamer Point, whereas the authorised books of tickets were all printed at the material time at the Howard Press, Aden. THE case for the prosecution, stating it very briefly, is that both the accused caused these spurious books to be printed and misappropriated the proceeds, thereby committing offences of breach of trust, cheating, forgery and using forged tickets as genuine. THE Sessions Judge agreeing with two of the three assessors has convicted both the accused on all counts and sentenced them to various terms of imprisonment.
(2.) LEARNED counsel who appears for accused No.1 in this appeal has raised a number of preliminary objections to the legality of the charges, and, as after careful consideration we have come to the conclusion that these objections must be sustained and that the illegalities vitiate the whole trial, I propose to deal with that matter first of all. The charges against accused No.1 are these: Firstly, that you between the 1st of March 1934 and the end of February 1935 being Head Accountant of the Aden Settlement and as such a public servant entrusted with dominion over money realised by the sale of Settlement water, committed criminal breach of trust, in respect of Rs 23,511-15-0 or a portion thereof realised from the sale of water tickets which to your knowledge were not genuine. Secondly, that during the period of May 1933 to February 1935 you forged or caused to be forged 4100 water ticket books or a portion thereof which books were of the nature of a valuable security or receipt empowering the delivery of water. Thirdly, that you between the above-mentioned dates fraudulently caused to be used as genuine water ticket books which you knew or had reason to believe were forgeries. Fourthly, that you between the 1st of March 1934 and the end of February 1935 cheated the Aden Settlement by inducing the water authorities to part with water on the strength of water tickets which to your knowledge were fraudulent, thereby committing offences punishable under sections 409, 467, 471 and 420 of the Indian Penal Code.
The charges against accused No.2 are in "precisely the same terms except that, as he is not a public servant, he is charged with breach of trust under Section 408 instead of under Section 409.
The first objection which has been taken to these charges is that the offence of breach of trust cannot have been committed because there was no entrustment to either of the accused either of the books alleged to have been forged or of the proceeds thereof. This objection we consider to be sound, but it is not very material. What these accused are alleged to have done in effect was to sell the water belonging to the Aden Settlement Committee and misappropriate the proceeds. The money which they obtained by the sale of these spurious books was undoubtedly the property of the Committee, and, although the charge of breach of trust could not be sustained, the accused might be convicted of misappropriation which might be regarded as a minor offence included in the charge of breach of trust. 1
(3.) THE serious objection to the charges arises from the joinder of these four charges and in particular from the inclusion in the second and third charges of alleged offences of forgery extending over a period of nearly two years. From the evidence of the Manager of the Caxton Press, Jacob Cohen, and from a statement which he has prepared from his accounts, Exhibit 39, it appears that these spurious books were supplied, as he says on the order of accused No.2, in batches sometimes of 200, sometimes of 300 books and on one occasion of 100 books only. THEy were supplied at intervals from May 3, 1933 to February 7, 1935. THE interval between the dates of delivery of the various consignments varied from a few days in some cases to a month or even several months. Charges in respect of the total number of alleged forgeries extending over this period could only be tried on one charge and at one trial, and such charges could only be combined with the other charges of breach of trust or misappropriation and cheating, if the whole series of acts covered by the four charges can properly be considered as forming the same transaction. That is to say, the trial on these four charges is only legal if it comes within the terms of Section 235 of the Criminal Procedure Code, which, as an exception to the general rule that distinct offences must be separately tried, provides in sub.-s. (1) 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. THE word " transaction" is rather a vague term. It is not denned in the Criminal Procedure Code and no doubt it was advisedly left undefined. It is not intended to be interpreted in any artificial or technical sense. Common sense and the ordinary use of language must decide whether on the facts of a particular case we are concerned with one transaction or several transactions. In that connection I may refer to the observations of Mr. Justice Reilly in Mallayya v. King-Emperor (1924)1 L. R. 49 Mad. 74 and also to Ramaraja Tevan, In re (1930) I. L. R. 53 Mad. 937.
Let us then look at this case first from the common sense point of view apart from any authority and let us assume for the purpose of argument that the prosecution story is true. What happened, it seems to me, must have been something like this. The accused conceived the idea of getting spurious ticket books printed, disposing of them as if they were genuine books and pocketing the proceeds. In accordance with that scheme accused No.2 goes to the Caxton Press and orders 200 books. They are supplied, stamped with the Settlement stamp, or possibly a replica of it, and sold in the ordinary way either in the office or outside it. The books are presented by the purchasers at the water stations and accepted without suspicion. The accused have received the money and they keep it, Finding that the scheme has succeeded without any witch, they decide to repeat the procedure. A further consignment of books is ordered and dealt with in the same way. With occasional intervals, as for instance when No.2 was sick at. the beginning of 1934, they went on ordering fresh consignments of books and disposing of them and pocketing the money for a period of nearly two years until the fraud was discovered in February 1935. Describing that state of affairs in ordinary language, I think one would call it not one transaction but a series of transactions. All the offences committed in connection with any one consignment of books, forgery, misappropriation, cheating and so on, would no doubt be part of the same transaction; but the offences committed in connection with any other consignment of books would in my opinion not be part of the same but of a similar transaction.;