CHHANGANI, J. - (1.) THIS revision has been filed by Rampratap against the appellate order of the Additional Sessions Judge, Jaipur dated 7. 7. 1960 maintaining his conviction under sec. 409 IPC and a sentence of two years' rigorous imprisonment and a fine of Rs. 1,500/- and in default six months, further rigorous imprisonment.
(2.) THE necessary facts for the disposal of the present revision-petition may very briefly be given as follows: - THE petitioner Rampratap was a cashier at Tehsil Lalsot. In the year 1952-53 he committed breach of trust in respect of various sums of money received by him in his capacity as a cashier. Originally he was prosecuted some time in the year 1954 or 1955 under sec. 409 IPC in respect of an amount of Rs. 68. 6. 0 consisting of three items of Re. 1/-, 0/4/0 and Rs. 67/2/ -. He was convicted by the Extra Magistrate, Dausa but on appeal, the District & Sessions Judge, Jaipur by his order dated 25. 7. 57 set-aside his conviction and acquitted him. Subsequently the police put up three challan cases against the petitioner in respect of particular sums of money mis-appropriated by him in the year 1952, 1953. In case No. 31 of 1957 the prosecution is in respect of eleven items totalling Rs. 929/11/6. In another case no. 45/57 it is in respect of one item of Rs. 673/8/3 and in case no. 160/57 the prosecution is in respect of three items totalling Rs. 471/9/6. All three cases were tried by the Magistrate at one trial. THE Magistrate after the trial came to the conclusion that there was no mis-appropriation regarding the item of Rs. 673/8/3 of case No. 45/57 land there was also doubt regarding some items included in the charges in cases no. 31 and 190. However, in respect of specific items he found the charge proved and convicted the accused and passed a sentence as stated above. On appeal, the Additional Sessions-Judge maintained his convict on as well as the sentence. Mr. Chatterji appearing for the petitioner has not challenged the conviction. He has, however, very strongly contended for the reduction of the sentence. Addressing on the question, he pointed out that the petitioner having been tried in respect of some sums of money alleged to have been misappropriated in the year 1953, it was hardly desirable that he should have been again prosecuted in respect of other sums of money alleged to have been mis-appropriated in the same year. His contention was that section 222 sub sec. (2) Criminal Procedure Code contemplates generally one trial in respect of all the sums mis-appropriated during the space of one year. He conceded that although various trials are not illegal and are not barred on a strict interpretation of sec. 403 Cr. P. C. yet it is undesirable that such trials should be allowed. It is urged chat though sec. 403 Cr. P. C. does not in terms apply to such cases the principle behind sec. 403 Cr. P. C. should be extended to such cases. In support of this proposition, he has relied upon a number of cases. In Sidh Nath Awasthi vs. Emperor (1) the accused in the first instance was prosecuted for mis-appropriation of three sums of money and was convicted. Later on the prosecution picked up three other sums mis-appropriated in the same year and got the accused tried for a second time. The matter having come before the High Court the Division Bench made the following observations: - "though S. 403, Criminal P. C. , may not strictly apply in its terms to a case like the present, still there is abundant authority for the view that a second trial in circumstances such as these ought not to have been allowed to be held. " In the Calcutta case of course the prior prosecution had resulted in the conviction of the accused whereas in the present case the prosecution of the accused has resulted in an acquittal. The observations, however, being of general nature do apply to the facts of the present case. In Emperor vs. Anat Narayan Kulkarni (2) the accused was prosecuted in the first instance in respect of mis-appropriation of two sums of Rs. 10/- and Rs. 40/- out of the gross sum of Rs. 655/9/6 and the prosecution resulted in an acquittal. Then there was a further prosecution in respect of a sum of Rs. 572/15/8. After inquiry the accused was commuted to the Court of Session for trial. On a reference by the Additional Sessions Judge a Division Bench of the Bombay High Court quashed the commitment on the ground that second trial was not desirable. In arriving at the conclusion to which they reached the learned Judges emphasised the following considerations: - (1) That the jury have unanimously found the accused not guilty in the prior trial and the accused has once been acquitted; (2) that the accused has in fact paid the whole amount involved in the two trials; (3) that he has already suffered one lengthy trial; and (4) that it is undesirable that in the second trial there should be any risk of the jury's taking a view different from that taken by the jury in the first trial. A similar view has also been taken in Chaman Lal S/o Diwan Chand Khatri Vs. Emperor (3 ). As against this, the Assistant Government Advocate relied upon a Single Bench decision of the Allahabad High Court in Brijiwan Das Vs. Emperor (4 ). In that case the main question that was considered was whether the subsequent trial was legal or not. The matter was no: specifically considered from the point of view of the desirability of further trials. On a consideration of cases cited above and the language of sec. 222 sub-sec. (2) and sec. 403 Crpc it will be proper and fair to conclude that after a person has been tried and convicted or acquitted in respect of some sums of money mis-appropriated during a year a subsequent trial in respect of mis-appropriation of other sums during that year is not illegal but such a trial is no; desirable and ordinarily ought not to be permitted. The reason for this conclusion is not far to seek. In the strict theoretical sense mis-appropriation of different sums of money during one year constitutes separate offences. On this consideration the prosecution should be under an obligation to specify specific sums of money mis-appropriated and to prosecute an accused at one trial only in respect of three items. In doing so, the prosecution must be faced with great difficulty in securing convictions in cases of running accounts between the parties as the prosecution cannot be able to specify the particular item in respect of which the offence was committed. The second difficulty is that in the absence of any provision enabling the clubbing together of different items it was not possible for the prosecution to prosecute at one trial more than three acts of criminal breach of trust though committed in course of the same year and by the same accused. In order to avoid the difficulties of the prosecution sub-sec. (2) of sec. 222 Crpc was introduced. After the introduction of this provision it is not necessary to specify the items in respect of which the offence was committed and it is enough to mention the gross sum in respect of which the offence was committed and a charge for the gross sum consisting of various items misappropriated in the year will be considered a charge for a single offence. It is only by this specific provision that the prosecution is enabled to prosecute a person for a gross sum even though it may have been the result of more than three acts during the space of one year. Considerations of reciprocity towards the accused certainly demand that in all fairness to the accused he should also be entitled to claim that he should not be faced with many trials in respect of individual acts of mis-appropriation committed during the space of a year. There is no serious risk to the prosecution involved in accepting such a claim on behalf of the accused for the offence of criminal breach of trust is punishable with an imprisonment for life or an imprisonment for a term which may extend for ten years and even at one trial the accused can be substantially punished. It may be admitted that the subsequent trials being not illegal no rigid and hard rule should be laid down for the determination of the question of the desirability of a second trial in the abstract. But broadly speaking before the prosecution could be permitted to plead a justification for a fresh trial it must satisfy; firstly, that the prosecution did not know or could not have known even after the exercise of due diligence of the acts of mis-appropriation the subject-matter of the subsequent trials before launching the first prosecution. Secondly, even if the prosecution satisfies of the existence of the above condition, a further trial may be considered undesirable if at the first trial the accused had been convicted and suitably punished. Such subsequent undesirable trials being not barred under the provisions of sec 403 Crpc they can only be prevented by the High Court exercising powers under sec. 551-A Cr. P. C. The subordinate courts of course cannot prevent such trials. If a subordinate court is satisfied of the undesirability of such trials, it can only bring the matter to the notice of the High Court with a view to the High Court's exercising powers under sec. 561-A of the Code of Criminal Procedure. It follows from this that if a second trial is held and the accused is convicted the conviction is legal and cannot be quashed. Further there is ample authority and justification for the view that a lenient view in the matter of sentences should be taken in respect of convictions at subsequent trials on the ground that the second trial was ordinarily not desirable and that the accused had already faced one trial. In Sidh Nath Awasthi Vs. Emperor (1) case on a conviction following a second trial a token sentence of one day's imprisonment was considered sufficient to meet the ends of justice. In the present case, the admitted facts are that the accused faced a previous trial in the year 1954-55 and was convicted at the trial stage but was acquitted at the appellate stage. This trial was in respect of sums of money mis-appropriated in the year 1953. He was again prosecuted in three cases although tried simultaneously in respect of items of the year 1953 except one and has been convicted in respect of sums of money misappropriated in the year 1953. In these facts and circumstances on the precedents laid down in the Calcutta, Lahore and Bombay cases, I am inclined to take a lenient view in the matter of sentence. I, therefore, reduce the sentence to six months' rigorous imprisonment while maintaining the fine. The revision is accepted to this extent. . ;