Full Judgment
Teunon and Cuming, JJ.
1. In this case the two petitioners, Kailash Chandra Pal and Rash Behari Dhar, have been convicted of cheating, and sentenced, under Section 420 of the Indian Penal Code, each to undergo six months' rigorous imprisonment.
2. The facts found are that in February, 1916, one Safar Ali and 11 others took from Government on a joint bond a sum of Rs. 300 by way of an agricultural loan. At the same time one Sibram and ten others similarly borrowed a sum of Rs. 265. In each case the bond was repayable by two instalments, the first instalment becoming due a year and a half after date. On the 23rd of January 1918 a Sub-deputy Collector went to realise the first instalment. He allowed the petitioners, who are spoken of as 'village touts', to interfere in the matter. The result was that while from each borrower, including interest for a year and a half, the sum due was Rs. 14-3-5, the two petitioners acting in concert induced the borrowers to believe that the sum payable by each was Rs. 15-8, and realised this sum from 22 of the 23. They thus collected in the aggregate, on the first bond, Rs. 170-8, on the second, Rs. 164-5 annas and paid to the Sub-deputy Collector, on the first, Rs. 156-3-9, on the second, Rs. 151, so misappropriating in all Rs. 27-9-3. The fraud was discovered when on a later date the last of the 12 executants of the first bond, one Osman ALi, made his payment separately and was necessarily required by the Revenue officer to pay only the correct amount.
3. These facts have been established by unimpeachable evidence which both Courts below have believed.
4. The contention before us in this Rule then is that the trial has been vitiated by misjoinder of charges.
5. The charges as drawn up are in these terms: 'first, that you, on or about the 23rd of June, at Gobindgunge, cheated Safar Ali and ten others by dishonestly inducing them to deliver to you the sum of Rs. 15-3-3, and thereby, secondly, that you, on or about the 23rd of June, at Gobindgunge, cheated Sibram and ten others by dishonestly inducing them to deliver to you Rs. 14-12 annas.
6. It is urged that charges so framed contravene the provisions of Sections 234 and 235 of the Criminal Procedure Code, and in support of this contention the decisions reported in Gut Mahomed Sircar v. Cheharu Mandal (1905) 10 C.W.N. 53, Johan Subarna v. King-Emperor (1905) 10 C.W.N. 520, Srish Chandra Mukerjee v. Emperor (1909) 13 C.W.N. 1067, Tilakdhari Das v. Emperor (1907) 6 C.L.J. 757, Asgar Ali Biswas v. Emperor (1913) I.L.R. 40 Calc. 846, also the well-known case of Subrahmania Ayyar v. King-Emperor (1901) I.L.R. 25 Mad. 61, have been cited. But the five cases first mentioned have been sufficiently distinguished in the decision in Ram Subheg Singh v. King Emperor (1915) 19 C.W.N. 972, and the case of Subrahmania Ayyar v. King Emperor (1901) I.L.R. 25 Mad. 61 is distinguishable: in that case Section 235 of the Code was not applicable.
7. Now there can be no question that in the present case the charges have not been artistically drawn up, and that there appears to be a slight inaccuracy in the amounts set out. It was not the case here that the two petitioners deceived only the headman in each case, and through him collected the aggregate sum represented to be due. They made separate representations to each, and deceived each as to the sum due from him. There should, therefore, have been 22 charges in respect of the difference (Rs. 1-5-7) in each case, and all the 22 payers should have been named and examined. But as the misrepresentation was in each case the same, and the offences were all committed, at one and the same time and place and in pursuance of the same conspiracy, the offences were all committed in the course of the same transaction. Under the provisions of Sections 235 and 239 the two petitioners were triable together in respect of all the said offences.
8. We may further observe that, on the facts of the present case, in respect of the aggregate sum or sums misappropriated one, or at most two charges in respect of the said misappropriation would have sufficed.
9. The petitioners fully understood the case they had to meet. It has been established against them by unimpeachable evidence. The defects in the charge have occasioned no failure of justice.
10. We, therefore, discharge the Rule, and direct that the petitioners do now surrender to their bail and undergo the remainder of their sentences.