Sarjoo Prosad, C. J. - (1.) THIS revision is directed against a decision of the learned Additional Sessions Judge of Gangapur confirming on appeal the conviction and sentence of the petitioner under sec. 409 of the I. P. C. He has been sentenced under that section to rigorous imprisonment for two years in addition to a fine of Rs. 1,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months.
(2.) THE facts are that the petitioner happened to be the Sarpanch of, a village Panchayat called Lahehora which includes within its ambit the villages of Bajna Khurd, Gaddipura and Bahadurpur. In his capacity of Sarpanch, the petitioner received certain sums of money for construction of wells and other development work in these villages. He received Rs. 2666 - on 8th January, 1954 as an advance for each of the villages Bahadurpur and Gaddipur equally and another sum of Rs. 1333/- on 23. 2. 1954 for village Baina Khurd. No amount was disbursed on account of the money held by the petitioner for villages Gaddipur and Bajna Khurd on any project whatsoever; but he admittedly spent a large part of the amount which he held on account of village Bahadurpur, leaving a balance of Rs. 193/- in his hands. He was served with a notice to render account and refund the Government money which was in his custody, but he did not comply with the notice. Lalsingh, Panchayat Inspector of the Circle was then deputed by the sub-divisional Magistrate, Hindaun on 18. 6. 1954 to check the accounts of the Panchayat in respect of the amounts advanced to the petitioner Mool Singh". It was alleged by the prosecution that Mool Singh conspired with this Inspector and obtained a receipt from him on 23. 6. 1954 showing payment of a sum of Rs. 2741/10/ -. THE matter was reported to the Police on 8. 3. 1955 and after investigation, charge-sheet was submitted against both the petitioner Mool Singh and Lal Singh on 21. 9. 1955. On trial Lal Singh was acquitted, but the petitioner was convicted by the trying Magistrate and when he appealed to the learned Sessions Judge, his conviction and sentence has been upheld by the order in question before me. In his defence, Mool Singh does not deny having received the amount in question on the dates alleged by the prosecution, but he pleaded that he had paid the amount to the Panchayat Inspector, who was deputed to realise the same; and, therefore, there was no offence of criminal breach of trust on his part. This defence does not appear to have been accepted by either of the two courts below. In fact, the receipt which he put forward in support of his defence and which is alleged to bear the signature of Lal Singh has not been found to be genuine. Lal Singh in his defence does not accept the genuineness of the receipt either. He merely stated that his signature was obtained in certain papers during the course of the enquiry, but he admitted that the document bore his signature and the seal of his office. In this application, Mr. Kishan Singh has raised various points in support of the petitioner. His first contention is that the joint trial of the petitioner along with Lal Singh was illegal and, therefore, the conviction ought not to stand. In my opinion, the matter has been very carefully examined by the learned Sessions Judge and having perused his judgment I see no reason to interfere. There can be no doubt that under sec. 239 (d) of the Code of Criminal Procedure, persons accused of different offences committed in the course of the same transaction could be charged and tried together and sec. 233 of the Code would not be a bar to any such trial. The word "transaction" has to be considered in the circumstances disclosed in each cast and whether or not the different offences formed part of the same transaction would have to be decided on the basis of allegations or accusations made before the Court by the prosecution against the accused concerned. The validity of the joint trial would depend not upon the ultimate result of the trial and the findings of the court ; but would depend upon the allegations on which the parties are put on trial before the court; and much would, therefore, depend upon the nature of the case set out by the prosecution when asking for joint trial of the persons concerned. If on the face of the prosecution case, it appears that the offences for which the persons were charged and sought to be tried were entirely different and distinct offen-ces and could not form part of the same transaction, the trial would obviously be illegal. If on the other hand, it can be said on the prosecution case itself that the different offences for which the persons are being jointly tried from part of the same transaction, then the trial would be justified under sec. 239 (d) of the Code. The mere fact that the offences may have taken place at different points of time, does not necessarily mean that those offences may not be part of the same transaction, though usually one would expect that there would be proximity both in point of time and action in respect of the offences alleged. Here, the receipt appears to have been issued by Lal Singh (even if the receipt is assumed to be genuine as the prosecution did assume when seeking to put up both of them on trial) with the obvious purpose of shielding Mool Singh, the petitioner, as the prosecution stated, from the offence of criminal breach of trust which he had committed. Lal Singh, according to the prosecution was only authorised to check the accounts and report, but he had no legal authority to receive payment or to issue receipt; and the prosecution, therefore, claimed that the unauthorised issue of the receipt by Lal Singh was clearly meant to conceal the detection of the offence of criminal breach of trust which the petitioner was alleged to have committed. The two offences, therefore, though different were connected "in point of action" and there was a unity of action between the two accused persons. In these circumstances, it could be very well inferred that the offences for which the accused and Lal Singh were tried, though distinct were part of the same transaction and the trial, therefore, was not illegal. There was a community of purpose, according to the prosecution case, between the two offences, namely to shield or conceal the fact of misappropriation of Government money from the authorities. The next contention of the learned counsel for the petitioner is that there should have been sanction for the prosecution of the petitioner who was a Sarpanch of a village Panchayat. It is now too late in the day to advance this contention since it has now been repeatedly held that even for public servants it is not necessary to obtain sanction for their prosecution under sec. 409 of the Indian Penal Code. See for instance, the decision of this Court in State vs. Gulab Singh (1 ). It was held in that case that it is open to the prosecutor to prosecute a public servant under sec. 409 without sanction from the State; and also the case of Om Prakash vs. State of U. P. (2), is an authority to the same effect. Lastly, the learned counsel submits that the question of sentence should be considered. He contends that the petitioner had already made payment of the amount to Lal Singh and although Lal Singh may have been acquitted, his case deserves consideration from that point of view. In this connection, I regret to observe that the learned Additional Sessions Judge was not right in saying that "the validity of the receipt is also not essential for the decision of the case on merits. " I do not think that this is a correct proposition. If actually, the receipt was genuine and it had been found that payment had been bona fide made by the petitioner to Lal Singh, he would certainly have a strong defence to offer. He could have been given the benefit of doubt in regard to the offence of criminal breach of trust alleged against him, even assuming that he was in error in not depositing the amount in the treasury, but in making payment thereof to Lal Singh, who was a Circle Inspector authorised only to check the accounts by the S. D. M. I find, however, that the learned Additional Sessions Judge has also considered the genuineness of the receipt. He has pointed out that the scribe, who was examined in the case, stated that no money was paid in his presence to anyone and that the receipt was written at his shop at Bharatpur and not at Hindaun. In this state of the evidence, one is not surprised that Lal Singh was able to obtain an acquittal at the hands of the Magistrate. The receipt not being genuine, I do not see how I can interfere with the sentence passed against the petitioner because it relates to defalcation of a fairly large sum of money by a person who was entrusted with public money for the purpose of carrying out development work in the rural areas. An offence of this type naturally deserves to be taken serious notice of specially in a climate where rural development is one of the main plans of Government welfare schemes. I would, therefore, affirm the order of conviction and sentence passed against the petitioner and discharge the rule. I understand that the petitioner is on bail. He will now surrender and serve out the remaining part of his sentence. A copy of this order should be forwarded to the District Magistrate for necessary action. .;