Decided on February 11,1953

Gurucharan Samal Appellant
STATE Respondents


PANIGRAHI, J. - (1.) IN tills revision the correctness of the conviction of the petitioner is challenged, and the only point argued before us is that his trial is vitiated by a misjoinder of charges.
(2.) THE petitioner was the Postmaster of the experimental Branch Post Office at Kotpur under the Dharmsala P. S. in Cuttack district and in that capacity he received three postal money orders from the Dharmsala Post Office, for disbursement to the payees. The three money orders are: (i) M. O. No. 89, dated 18 -12 -48 for Rs. 80/ -payable to one Moti Bewa; (ii) M. O. No. 4824 dated 2 -2 -49 for Rs. 60/ -payable to one Baidhar Parida; and (iii) M. O. No. 4825 dated 2 -2 -19 for Rs. 20/ -payable to one Rai Chandra Parida. The prosecution case was - - and it has been proved to the satisfaction of the Courts below - -that the petitioner forged the thumb impressions of the payees on the money order vouchers, falsified the accounts of the Branch Post Office, and committed criminal misappropriation of the amounts covered by the three postal money orders aggregating Rs. 160/ -. The prosecution proved that the thumb impressions on the money order vouchers alleged to be those of the payees had been forged and that the entries in the postal books had been falsely made. The petitioner was charged, firstly, with having committed criminal breach of trust in respect of the gross sum of Rs. 160/ -punishable under Section 409, I. P. C. This charge sets out the numbers and dates of the three money orders. The second, third and fourth charges related to the forging of the thumb impressions given on the vouchers which purport to be those of the payees and they are punishable under Sections 467 and 471, Penal Code. The fifth and sixth charges were under Section 477A, Penal Code; the fifth being related to Money Order No. 89 for Rs. 80/ -, dated 18 -12 -48, and the sixth in respect of Money Orders No. 4824 and 4825 both dated 2 -2 -49, for Rs. 60/ - and Rs. 20/ - respectively. The contention raised on behalf of the petitioner is that this joinder of charges amounts to a contravention of the provisions of Sections 234 and 235 of the Code of Criminal Procedure. The learned Additional Sessions Judge overruled this contention on the authority of the case reported in - -'Ram Kishoon Prasad v. Emperor', AIR 1934 Pat 232 (A). It was held in that case that 'where a person is charged under Section 409, Penal Code, with breach of trust in respect of a gross sum consisting of three items, all of which were embezzled in the course of one year, the Court is competent by virtue of the provisions of Sections 234 and 235, Criminal P. C., to try with this charge, three charges for an offence under Section 477A, Penal Code, If committed within the same period and forming part of the same transaction as the offence under Section 409.' Learned counsel for the petitioner has, however, drawn our attention to a Full Bench decision of the Bombay High Court reported in - - 'D. K. Chandra v. The State', AIR 1952 Bom 177 (FB) (B), where the learned Chief Justice, who delivered the leading judgment, was of opinion, on a review of the entire case law, that such a joinder of charges is obnoxious to the provisions of Section 234. We are asked on the authority of this decision and some other decisions of certain other High Court, in which a similar view has been taken, to dissent from the contrary view taken by the Patna High Court in a series of reported decisions and on which the Court below has relied for its conclusion.
(3.) THERE is considerable divergence of opinion not only among the different High Courts but also among Judges of the same High Court as to whether Sections 234 and 235, Criminal P. C., are mutually exclusive. One view is that the two sections may be read as supplementary to each other and in a cumulative sense, so that any number of offences committed in the course of the same transaction & falling within Section 235, may be charged at one trial and that such transactions not exceeding three in number and committed within the space of twelve months, may also be charged under Section 234 of the Code. As a result of the combination of the two Sections an accused may be put on trial for three offences committed in the course of the same year and also other offences arising out of the three acts provided they form part of the same transaction.;

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