KAN SINGH, J - (1.) THE accused petitioners who were facing trial for offences under secs. 467, 468, 471-A and 406, I. P. C. have moved this Court against an order of the learned Additional Sessions Judge, Bundi dated 6th May, 1968, dismissing their application by which they prayed the learned Additional Sessions Judge to quash the proceedings on the ground that the trial was barred by the provisions of sec. 403 Cr. P. C. as also Art. 20 of the Constitution.
(2.) THE indictment against the accused Devishanker was that as president of the Multi purpose Cooperative Society of Chatrapura he had embezzled an amount of Rs. 27,030, between the period 1st of July, 1959 to 30th of June 1960 in collusion with the co-accused Nathu. He was also charged for the offence of conspiracy under sec. 120b for committing embezzlement of the funds belonging to the Cooperative Society when Nathu was the Secretary. THE third charge was that for concealing the embezzlement he had fabricated the account books with a view to defrauding the members of the Cooperative Society. Accordingly a charge under sec. 468 I. P. C. was framed against the accused Devi Shankar. Charges against the other accused Nathu were in similar terms and for the same period 1st of July, 1959 to 30th of June, 1960. The prosecution story in brief was that an amount of Rs. 49,275/- had been sanctioned as loan by the Central Cooperative Bank, Bundi for the Multipurpose Cooperative Society Chatrapura. The amount had been drawn by the President Devishanker and the Secretary Nathu from time to time under cheques. Out of this amount Rs. 17,030/- were wrongly shown in the account books as having been distributed to the various members of the Cooperative Society as loans purporting to have been sanctioned by the Society. In fact no such loans were distributed and false entries were made in the names of persons who were not members of this Society and in the names of even dead members. As regards the amount of Rs. 10,000/- on 13 10 1964 and it was alleged that debit entries were made for the purchase of various commodities but in fact no such commodities had been purchased nor were the the receipts for them available It was further alleged that forged cash memos had been introduced for the purchase of cloth, blankets, jerseys and jackets to the extent of Rs. 13,459/ -. So was another cash memo for an amount of Rs. 1071/- for the purchase of tin sheets falsely prepared. The accused petitioners were challaned in the present case on 5-10-1963. After the necessary committal inquiry the learned First Class Magistrate, Bundi committed the accused to the court of Sessions on 13th October, 1964. The statement of the accused was recorded on 13th October, 1964 and the charges were framed against the accused the same day. The accused Devishankar filed a revision application against the order of commitment. Therefore, the trial could not start for some time. With the disposal of the revision application the trial started on 13th January, 1966 when the plea of the accused was recorded. During the trial the accused petitioners moved an application before the learned Additional Sessions Judge raising an objection that trial of the accused was barred as earlier to that they had been tried for the offences under sec. 406 and 467 I. P. C. for the same period and whereas Devishanker had been convicted the other accused had been acquitted. I ought to mention that earlier to this the accused petitioners moved a miscellaneous application before this Court that the proceedings be quashed as the accused could not be tried for the offences in the present case again. However, as at that time the judgments in the previous cases were under appeal in this Court Chhangani J. on 8th of December, 1965 dismissed the application saying that he was not inclined to go into the matter at that stage but the petitioners would be at liberty to move the trial court after the disposal of the appeals in the previous cases. S. B. Criminal Appeal No. 109 of 1965 arose out of session case No. 9 of 1963 decided by the learned Additional Sessions Judge on 24th February, 1965. It related to two sums of money, namely, Rs. 200 said to have been advanced as loan to one Motishanker on 11th September, 1959 and another sum of Rs. 100/- related to an alleged loan to Jagannath on the same day. The total amount involved was thus Rs. 300/ -. The charges of forgery related to the entries of 11th September, 1959. The result of the appeal was that Devishanker's conviction as also the sentence of two years and Rs. 100/- as fine was upheld. Conviction of Nathu was set aside and he was acquitted. S. B. Criminal Appeal No. 146 of 1965 arose out of session case No. 8 of 1963 decided by the Additional Sessions Judge, Bundi on 23rd February, 1965. This case was similar to sessions case No. 9 of 1963; the only difference being that in this case an amount of Rs. 350/- was alleged to have been advanced to one Bala on 10th September, 1959 and an amount of 150/- was alleged to have been advanced to one Rugga, the total amount thus involved in the case being Rs. 500/ -. This appeal was decided on 23rd November, 1966. The conviction and sentences of Devi Shanker were maintained but the substantive sentence was ordered to run concurrently with the substantive sentence awarded in the previous appeal. The 3rd appeal was S. B. Criminal appeal No. 147 of 1965. It arose out of session case No. 11 of 1963. It related to an amount of Rs. 200/- alleged to have been advanced as loan to one Uda on 6th September, 1959. The result of this appeal was also the same. The substantive sentence awarded in this case was made to run concurrently while the substantive sentence of fine was set aside. After these appeals were disposed of the accused petitioners moved the trial court to quash the proceedings in the present case. The learned Additional Sessions Judge came to the conclusion that the provisions of sec. 403 C. P. C. or those of Art. 20 of the Constitution were not attracted as the offences in the case in hand were not the same as the offences which were the subject-matter of previous trials. He observed that so far as charge under sec. 120-B I. P. C. was concerned it was not the subject-matter of trial in any of the previous cases and it was obviously for a distinct offence. As regards the charges under secs. 406, 467, and 468 I. P. C. the learned Judge said that the trial would not be illegal. He took two things into consideration. The first was that the accused had not been suitably punished in the previous cases and secondly the prosecution did not know the acts of mis-appropriation which were the subject-matter of the present trial while launching the previous prosecutions. He pointed out that the prosecution came to know of the embezzlement involved in the present trial subsequently. I have heard learned counsel for the petitioners and the learned counsel for the State I find myself unable to endorse the reasons that had weighed with the learned Additional Sessions Judge. For seeing whether the trial of an offence is barred under sec. 403 Cr. P. C. or by force of Art. 20 of the Constitution, the punishment that may have been awarded in the earlier cases is not a relevant factor. Indeed the result of the cases is wholly immaterial provided the earlier trial was by a competent court. The result would, in my view, be immaterial for seeing whether the subsequent trial is barred or not. Even if the earlier trial resulted in acquittal the subsequent trial would be barred and so will the trial be barred even if the punishment that was awarded was a lenient one. Likewise the knowledge of the prosecution about the existence of facts involved in the subsequent trial is not materia! for the purposes of examining the legality of the trial though in an appropriate case it may furnish relevant consideration for the exercise of inherent powers of the High Court under sec. 561-A Cr. P. C. and where it has been shown that the second trial amounts to the abuse of the process of law. However, keeping aside the reasons which impressed the learned Additional Sessions Judge the crux of the matter is whether the accused persons had already been tried for the same offence for which they are now being tried.
(3.) THE second allied question that crops up for consideration is whether on the facts in the present case an alternative charge for it could have been framed in the earlier trial or the court could have convicted the accused of the present offences in the earlier trial by virtue of Ss. 236 or 237, Cr. P. C. Secs. 236 and 237 Cr. P. C. are attracted by and large when the same set of facts may fall under one or more definitions of offences under the Penal Code. What may be in doubt be the particular section to apply and in that event the court may frame charges for the several offences that may seem to be made out on the given set of facts. However, the facts which may give rise to the applicability of the various sections defining the offence will be the same. In other words, there may be variations in the application of the sections but there will be no variation in the facts. THErefore, the dominant thing, with a view to seeing the applicability of sec. 403 Cr. P. C. or Art. 20 of the Constitution for that matter, is whether the facts constituting the present offences are the same as those which were the subject matter of previous trials. There will be as many offences as there will be embezzlements on different occasions. If on different dates the accused makes false entries and embezzles the corresponding amount then the offences will be different and according to sec. 233 Cr. P. C. each offence will have to be tried separately. To that there is, however, an exception that offences not exceeding three in number falling within a year could be joined together at one trial. For the offences of the criminal breach of trust or embezzlement there is however a special provision under sec. 222 Cr. P. C. to the effect that for embezzlement committed during the course of a year the accused may be charged with having committed embezzlement for the aggregate amount and then the offence is treated as one. Now, the previous offences related to the five specific sums in all aggregating to Rs. 1,000/. . The present charge relates to a sum of Rs. 27,030 and covers a period of one year from 1st July, 1959 to 30th June, 1960. Therefore, the charge for the aggregate amount for the entire period of one year will not constitute the same offence as was constituted by the individual items. All the same, there will be overlapping to the extent of Rs. 1,000 and to that extent the charge for the entire amount of R|s. 27,030 will not be legal and consequently the charge will have to be modified to exclude the amount of Rs. 1,000 which was the subject matter of the previous counts. Now, normally this Court will not view with favour the situation where the prosecution chooses to resort to the provisions of sec. 221 Cr. P. C. by including the entire amount in one charge and thus getting round the provisions of sec. 234 Cr. P. C. and at the same time launching prosecution for various items included in the aggregate. This may in a given case lead to the inference that the process of law is being abused and this Court may step in under sec. 561-A, Cr. P. C. to quash one of the two dual proceedings. Many a time it happens that the prosecution challans one case and then sits back to see its result before thinking of challaning another similar case. That may result in a citizen being subjected to the agony of prolonged trials one after the other and if having information of the facts the prosecution chooses to! approach a court after much delay then this Court may exercise its powers under sec. 561-A, Cr. P. C. In the present case however, it appears that while the previous pases were pending before the trial court this case had been challaned and had been even committed to the court of sessions in 1964, It was, therefore, open to the trial court to have consolidated all the cases as undoubtedly when the present case was committed the earlier cases were still pending. On account of this consideration I am not inclined to exercise the inherent powers of the Court under sec. 561-A, Cr. P. C. It is noteworthy while the four trials were pending the accused did not move for the consolidation of the trials. It is true that during the pendency of the trials the accused approached this Court for quashing the present proceedings and on 8th December, 1965 Changani, J. dismissed the application observing that it would be open to the petitioners to move the trial court after the appeals were disposed of. To my mind, the result of the appeal could not have a bearing on the applicability of S. 403 Cr. P. C. or Art 20 of the Constitution for that matter because in either case these provisions would apply, whether the accused is acquitted or convicted. Anyway, after consideration of the whole matter I am satisfied that the amount of Rs. 1000/- should be excluded from the charge involving the amount of Rs 27,030/- for the period from 1st July 1959 to 30th June 1960. The fact that the accused had faced trials previously may be a relevant consideration for determining the quantum of punishment but that has nothing to do with the legality of the trial. Accordingly, I hereby allow the revision application in part and direct the trial court to amend the second charge relating to the embezzlement of the amount of Rs. 27,030/- by deducting the amount of Rs. 1000/- therefrom. The revision application fails in all other respects. . ;