1. The petitioner has obtained the present Rule for consideration of convictions recorded against him under Sections 409 and 477A of the Indian Penal Code in two separate cases, the appeals from which were dismissed by a single judgment. In one case he was sentenced to 18 months rigorous imprisonment and a fine of Rs. 200 u/s 409 and to 18 months rigorous imprisonment u/s 477A, the sentences of imprisonment to run concurrently. In the other case he was sentenced u/s 409 to two years rigorous imprisonment and a fine of Rs. 200 and u/s 477A to two years rigorous imprisonment, the sentences of imprisonment again to run concurrently.

2. The first case related to realisation of municipal tax from Satyendra Nath Banerji. The charge u/s 409 was as follows:

That you between October 19, 1931 and April 1, 1932 at Patna City, being a public servant in the employment of Patna City Municipality and in such capacity entrusted with Municipal property, i, e., collection of taxes to wit by Municipal Receipt No. 38960, dated October 20, 1931 for Rs. 139-7-0, Ex. 6 No. 55091, dated January 6, 1932 for Rs. 60, Ex. 3 and No. 81273 dated March 31, 1932 for Rs. 60 Ex. 2 committed criminal breach of trust with respect to the said property and thereby committed an offence u/s 403 of the Indian Penal Code and within my cognizance.

3. The charge u/s 477A related to the respective fraudulent false entries in the daily collection registers.

4. The second trial was concerned with three similar realisations between September 29, 1923 and March 28, 1929, from Zamiruddin and the charges were on the same lines except that in the charge u/s 409 the words:

To wit by Municipal Rpcaipt No. 1C 607, dated September 20, 1928 for Rs, 65-3-0 and Receipt No. 33201 dated February 10,1929 for Rs. 32-9-6 and Receipt No. 46282, dated March 58, 1929 for Rs. 32-9-6 are within brackets.

5. The only question which arises is whether the petitioner has been tried according to law. It is urged on the authority of Kasi Viswanathan v. Emperor 30M. 338 and other decisions which follow it, that a trial on what is substantially three charges of offences u/s 409 and three charges of offences u/s 477A is not justified by the Code and is wholly invalid. In reply Mr. Akbari relied upon the decisions in Gajadhar Lal v. Emperor 60 Ind. Cas. 422 : 60 Ind. Cas. 422 :Cr. L.J. 230 and Michael John Vs. Emperor, as adequately meeting this contention on behalf of the petitioner. Now what was decided in the first of these cases was that where a person is charged u/s 408 of the Penal Code with criminal breach of trust committed in one year in respect of a lump sum of money, the Court is competent by virtue of the provisions of Sections 234 and 235 of the Code of Criminal Procedure to try with this charge three charges for an offence u/s 477A of the, Indian Penal Code if committed within the period of one year and forming part of the same transaction as the offence u/s 408. In Michael John Vs. Emperor, , the decision in Gajadhar LaL v. Emperor 60 Ind. Cas. 422 : 22 Cr.L.J. 230, was approved while the decision in Raman Behari Das v. Emperor 22 Ind. Cas. 729 : 41 C. 722 18 W.N. 1152 : 15 Cr.L.J. 153 based upon Kasi Viswanthan v. Emperor 30 M. 388 was not followed. These two cases are binding upon us and, with respect we hold that they were rightly decided. The learned Advocate for the petitioner does not contend that they were not but he would distinguish them on the ground that whereas in each of them the charge u/s 409 was in respect of a lump sum or to use the expression in Section 222 60 Ind. Cas. 422 : 22 Cr.L.J. 230 of the Code of Criminal Procedure, a gross sum), it is otherwise with the charges u/s 409 set out above which, he contends, cannot be said to be in respect of a gross sum. The learned Government Advocate who appeared later on behalf of the Crown contended in the first place that the charge u/s 409 is in respect of a gross sum, being the aggregate realization under the three receipts enumerated which is also mentioned as "the said property." It is a reasonable inference from the charge itself that in each case the Magistrate intended that the trial should be on the lines held to be valid in the case of Michael John Vs. Emperor, . It does not, of course, affect the validity of a charge of criminal breach of trust in respect of a gross sum that the items of defalcation are also enumerated: Emperor v. Datto Hanmant Shahpurkar 30B. 49 and Rahim Bux Sarkar Vs. Emperor, . In our judgment the charge has been correctly framed in accordance with the provisions of Section 222(2) of the Code of Criminal Procedure and is a charge of criminal breach of trust by a servant of a gross sum consisting of toe three items of "collection of taxes" from one person (in one case from Satyendra Nath Banerjee and in the other case from Zamiruddin) within a stated period of less than one year, contemplated as a single item of "municipal property" entrusted to the accused. The same view has been taken by Mears, C.J., and King, J., in Emperor v. Pram Narain 128 Ind. Cas. 595 : 52 A. 944 : (1938). In that case, one charge was framed in which four sums of money said to have been embezzled were specified and three dates were also specified as being the dales of the alleged embezzlements, two of the four items being alleged to have been embezzled on one of the dates. The time included between the first and the last of the three dates was less than one year. It was held that there was in fact only one charge framed and as that charge, although it did not set out the total of the money embezzled, did specify all the items and the dates upon which the sums were alleged to have been embezzled and as the time included between the first and last of such dates was less than two months and so less, than one year, the charge was correctly drawn up in accordance with the provisions of Section 222(2) and must be deemed to be a charge of one offence within the meaning of Section 231 so that it followed that there was no misjoinder of charges since the accused was on his trial for only one offence. The charge u/s 409 against the petitioner thus being in each case a single charge as to a gross sum, the decisions in Gajadhar Lal v. Emperor 60 Ind. Cas. 422 : Cr.L.J. 230 and Michael John Vs. Emperor, apply and the plea of misjoinder of charges fails.

6. The learned Government Advocate further contends that assuming that the charge u/s 409 as framed must be taken to constitute three charges of as many offences, nevertheless, the trial is valid under the Code of Criminal Procedure. In the case of August, 1902, mentioned by Carnduff, J., in Emperor v. Jiban Kristo Bagchi 20 Ind. Cas. 412 : 40 C. 318 : 14 Cr.L.J. 428 it appears that in the trial:

On six counts with three separate embezzlements u/s 408 of the Penal Code and with three corresponding falsifications u/s 477A.

7. There was a conviction in the Calcutta High Court on each count. The decisions on which the Advocate for the petitioner relies, proceed on the view that Section 234 and Section 235 are mutually exclusive to use the expression of Tudball, J. in Sheo Saran Lal v. Emperor 5 Ind. Cas. 896 : 32 A. 219 : 7 A.L.J. 225 : 11 Cr.L.J. 285. Now Section 233 provides that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 234, 235, 236 and 239. There is no apparent reason for holding that these four exceptional cases are mutually exclusive. Certainly there is no more reason for holding that Sections 234 and 235 are mutually exclusive than that one or other of these provisions and either Section 236 ors.239 are mutually exclusive or that Section 236 and Section 239 are so. In our view it is far more consonant with reason and the probable wishes of the legislature that in a proper case the trial of three offences u/s 409 along with the falsification of accounts with which the subject matter of each charge is linked should be contemplated than that it should be barred. It can be predicated that in the present case there was no prejudice to the accused and indeed it is not easily discernible how prejudice can arise in such a case. Section 234 permits three offences of the same kind committed within the space of 12 months from the first to the last to be tried at one trial. A valid trial on charges as to three offences being thus constituted, Section 235 comes in to provide that all offences committed by the same person in the series of acts so connected together as to from the same transactions with any one of those three offences can be tried with that offence. In principle multiplicity of trial B is to be avoided. Again, in order to establish one or more of the charges triable u/s 234 it is frequently essential or expedient to produce all the evidence necessary and sufficient to establish the other offences referred to in Section 235(1). There being ordinarily no likelihood that the accused would in the circumstances be embarrassed in his defence, it is hard to believe that this evidence is only to have effect as to one of the offences committed in the same transaction. One would expect the legislature at least to permit a joint trial of all the offences in the series forming the same transaction in spite of the fact that one of the offences of the series is by another provision triable along with two other offences of the same kind. We consider that it has been so and we can see no reason why Sections 234 and 235 are not to be regarded, as cumulative in their effect in a proper case.

8. In our view even if the first submission of the learned Government Advocate had failed the trials at which the petitioner was convicted, were validly constituted there being no misjoinder of charges.

9. We accordingly discharge the Rule.