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In January, 1952 he therefore brought one S. G. Krishna Aiyar who had vast experience in the maintenance of accounts of electrical undertaking's having been Chief Accountant of the South Madras Electric Supply Corporation, to undertake an investigation and then to act as Financial Adviser FAC |
In the meantime on November 29, 1951 there was a meeting of the General Body at which the accounts were, among other things, to be considered FAC |
There was a considerable uproar at that meeting because the respondent No. 1 said that the Auditor's report had not been received FAC |
The shareholders felt that the report had been received but was being suppressed or deliberately withheld FAC |
However, the meeting was postponed and eventually held on December 9, 1951 FAC |
On that date the respondent No. 1 produced the auditor's report FAC |
According to the prosecution the report is a forged document ARG |
That was also the feeling-of a number of shareholders who wanted to see the original but one Dutt who was Chairman of the meeting after seeing Ex FAC |
P. 234 said that the report seemed to be a genuine one FAC |
S. G. Krishna Aiyar after his appointment in January, 1952, made close enquiry and submitted an interim report FAC |
That report showed that during the period 1948-49 Rs. 33, 271-10-0 shown as paid to the Andhra Power System were in fact not paid FAC |
The respondent No. 1 on being asked to explain said that he would give his explanation to the Managing Director FAC |
The Interim Report showed that there was a shortage of about Rs FAC |
90, 000/- for this period FAC |
On February 12, 1952 the respondent No FAC |
I wrote to the Managing Director admitting his responsibility and agreed to make good the amounts found short or such other amounts as would be found short up to the end of March, 1952 FAC |
Further scrutiny of the accounts was being carried out by Krishna Aiyar and in his subsequent report he pointed out that Rs. 2, 38, 000/- which were shown as having been paid to the Andhra Power System had actually not been paid FAC |
In fact in April, 1952 the Collector attached VESCO properties for realising this amount FAC |
On April 30, 1952 the respondent No. 1, by selling some of his property, himself paid Rs. 50, 000/- to the Andhra Power System towards the sum due to it from VESCO and had promised to pay the balance shortly thereafter FAC |
He was given time for doing so but he failed to pay it FAC |
The Directors of VESCO thereafter authorised K. S. Dutt, one of the Directors to lodge a complaint with the police which he accordingly lodged on May 19, 1952 FAC |
On the next day the police placed an armed guard around the office of the respondent No FAC |
I and seized a number of papers FAC |
As a result of investigation they found that there was a total misappropriation of Rs FAC |
3, 40, 000 FAC |
On May 13, 1954 a chargesheet was filed against the two respondents as well as Murti and the approver Ramana FAC |
OD September 13, 1954 Ramana offered to make a full Confession to the Additional District Magistrate (Independent) who was empowered to grant pardon under s. 337 of i he Code of Criminal Procedure FAC |
He, however, directed Ramana to make his confession before a SubMagistrate FAC |
The latter accordingly made a confession on November 15, 1954 and on November 17, 1954 the Additional District Magistrate (Independent) granted him pardon and that is how he came to be examined as a witness in this case FAC |
As already stated, the Additional Sessions judge convicted both the respondents, the respondent No FAC |
I in respect of each head of the offences with which he was charged and the respondent No. 2 in respect only of the offences of conspiracy and misappropriation FAC |
The High Court set aside the conviction of the respondents on a number of grounds RLC |
In the first place according to the High Court, joint trial of two or more persons in respect of different offences cornmitted by each of them is illegal and that here as they were charged with having committed offences under s. 120-B, s. 409, s. 477-A and s. 476/467, I.P.C RLC |
they could not be tried jointly RLC |
According to it the provisions of s. 239 were of no avail RLC |
Next according to the High Court even if s. 239 is applicable its provisions are subject to those of s. 234 and as such the trial being for more than three offences was impermissible RLC |
Then according to the High Court offences under RLC |
s. 409 and s RLC |
471/467 are of different kinds and are not capable of joint commission RLC |
Therefore, they could not be jointly tried RLC |
Further, according to the High Court where a conspiracy has yielded its fruits the conspirators can be charged with the actual offences committed and not with conspiracy to commit those offences RLC |
Charge of conspiracy, according to the High Court, can be validly made only when the prosecution establishes that every conspirator expected to receive a personal benefit from it and that the prosecution has not been able to establish that the respondent No. 2 or the approver evidently had any such expectations since t... |
In so far as the respondent No. 2 is concerned the High Court has held that since he was charged with a specific offence under s.409 I.P.C. he could not be convicted of mere abetment of an offence RLC |
The approver's evidence was held by the High Court to be inadmissible because the pardon granted to him was illegal RLC |
The High Court has also held that his evidence is unreliable and further that the Additional Sessions judge was in error in allowing him to refresh his memory by referring to various documents in a manner not permitted by s. 159 of the Evidence Act RLC |
The High Court has further stated that inadmissible evidence was taken on record by the Additional Sessions judge, namely, account books of Billimoria Brothers, maintained in Gujrati and further that the Additional Sessions judge was in error in allowing the prosecution to use those account books for establishing absen... |
Finally, the High Court held that the examination of the respondent under s. 342 of the Code was unfair for a number of reasons and that the Additional Sessions judge had failed to perform an important duty in that he did not call the attention of the respondents to the provisions of s. 342 which enable an accused pers... |
Mr RLC |
Bhimasankaram, appearing for the two respondents, however, has not sought to support the judgment of the High Court on all these points RLC |
The points which he urged are briefly these: (1) That there was a misjoinder of charges and persons in that the various provisions of s. 239 were clubbed together and an omnibus charge of conspiracy was framed which on its face was one likely to embarrass the respondents and make their task of defending themselves diff... |
The procedure adopted in the investiga- tion and committal stages was irregular ARG |
3) Irrelevant evidence was introduced and some evidence was introduced in a manner not authorised by the Evidence Act ARG |
4) That the Court abused its powers under s.342, Cr ARG |
P.C. while conducting the examination of the respondents ARG |
The evidence of the approver was inadmissible because the pardon granted to him was illegal, that, in any case, it is unreliable, was so found even by the Sessions judge and must, therefore, be rejected ARG |
If the evidence of the approver is left out the remaining evidence would be inadequate to sustain the prosecution case ARG |
We shall deal with Mr. Bhimasankaram's contentions in the order in which we have set them out Ratio |
The first question for consideration is whether there was a misjoinder of parties and of persons Ratio |
The first charge is in respect of the conspiracy alleged to have been entered into by the two respondents, K. V. Ramana, the approver, and others "known and unknown" to commit criminal breach of trust of the funds of VESCO and, in order to screen its detection, to falsify the accounts of VESCO and to use forged documen... |
On the face of it this is a valid charge Ratio |
But certain objections have been taken to it with which we will deal at the appropriate place Ratio |
The second charge is for an offence of criminal breach of trust punishable under s. 409 and the accusation therein is that the two respondents along with Ramana, misappropriated 69 items aggregating to a little over Rs Ratio |
3, 20, 000 Ratio |
It is clear from the charge that some of the amounts were misappropriated between April, 1947 and March, 1950, some between April, 1947 and March, 1949, some between April, 1947 and March, 1951 and quite a large number between September, 1947 and March, 1950 and a still large number between April, 1951 and March, 1952 ... |
It is thus apparent that offences committed within a space of 12 months were tried along with offences committed beyond that period Ratio |
Unless, therefore, the provisions of s. 239 are applicable it would follow that there was a misjoinder of charges Ratio |
The third charge is that the two respondents, along with the approver Ratio |
Ramana made false entries on seven different dates in the account books between September 19, 1947 and March 18, 1952 and thus committed an offence under s. 477-A, I.P.C Ratio |
The fourth charge is that the two respondents, along with the approver Ratio |
Ramana forged six documents on different dates between March 28, 1949 and November 12, 1951 and thus committed an offence under s. 471 read with s. 467, I.P.C Ratio |
As we have pointed out earlier the respondent No Ratio |
I alone was convicted by the Additional Sessions judge in respect of the third and fourth charges Ratio |
Mr. Bhimasankaram supports the reason given by the High Court for coming to the conclusion that there was a misjoinder of charges Ratio |
The main reasons upon which the conclusion of the High Court is based are firstly that there could be no clubbing together of the provisions of the various clauses of s. 239 and secondly that the respondents were charged with more than three offences of the same kind and that this was in contravention of s. 239 (c Rati... |
In coming to the conclusion that the provisions of various clauses of s. 239 cannot be applied cumulatively the High Court has relied upon the decision in Re: Vankavalapati Gopala Rao 1956 AIR(Andhra) 21 PRE |
There the learned judges have held thus: "These clauses are mutually exclusive and they cannot be simultaneously applied and to construe them as supplementing each other would be enlarging the scope of the exceptions PRE |
Each clause is an exception to the general rule enacted in s. 233, Cr PRE |
P.C Ratio |
If such a combination is permissible, all persons accused of offences described in cls PRE |
a) to (g) can be tried together in one case which certainly involves a bewildering multiplicity of charges and which would obviously set at naught the salutary principle contained in s. 233 PRE |
The chapter is split up into two sub-heads, '-Form of charges"and" Joinder of charges STA |
Ss STA |
221 to 232 are comprised under the first sub-head and ss STA |
233 to 240 in the second STA |
221 to 223 deal with the framing and content of charge STA |
s. 224 deals with the interpretation of the language of the charge and s. 225 with the effect of errors in the charge STA |
226 to 231 deal with the power of the court with regard to framing and altering charges and the procedure to be adopted at the trial where a charge is found to be defective or there is no charge or where a new charge is to be framed STA |
S. 232 deals with the power of the. appellate court or the High Court when it discovers that there is material error in the charge STA |
Then we come to the other sub-head of this chapter STA |
S. 233 provides that for every distinct offence of which any person is accused there shall be a. separate charge STA |
It thus lays down the normal rule to be followed in every case STA |
But it also provides that this will be subject to the exceptions contained in SS STA |
234, 235, 236 and 239 STA |
The first three provisions relate to the framing of charges against a single accused person STA |
S. 234 STA |
1) deals with the trial of a person for offences of the same kind not exceeding three committed within the space of 12 months from the first to the last of such offences and s. 231 (2) what is meant by the expression 'offences of' the same kind STA |
This provision lifts partially the ban on the trial of a person for more than one offence at the same trial STA |
S. 235(1), however, goes a step further and permits the trial of a person for more offences than one if they are so connected together as to form the same transaction STA |
Thus under this provision if the connection between the various offences is established the limitations placed by s. 234(1) both as regards the number and the period during which the offences are alleged to have been committed will not apply STA |
Full effect cannot possibly be given to this provision if we hold that it is subject to the limitation of s.234(1 STA |
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