A breach of the proviso to S. 222(2) of the Code of Criminal Procedure is an irregularity which can be cured under S. 537 of the Code, provided that no prejudice has been caused to the appellant's case.

Judgement

GAJENDRAGADKAR, J. : This appeal by special leave is directed against the order passed by the High Court of Madras confirming the conviction of the appellant under S. 409 of the I. P. C. and the order of sentence directing him to suffer rigorous imprisonment for four and a half years. The prosecution case was that the appellant who was accused 1 and eight other persons who were charged along with him were parties to a criminal conspiracy, the common object of which was to dishonestly misappropriate the property of the Meenangadi Producers-cum-consumers co-operative Society, Ltd., and otherwise to dispose of the said property dishonestly in violation of law. The said Society had been started for procurement and distribution of food -grains in the two amsams of Purakkadi and Muttil in Wynad Taluk and it had been granted the necessary licence under the food-grains control orders. The appellant was the President of the said Society and the either other person tried along with him were its directors. The Secretary of the Society, who was also a party to the said conspiracy and had been shown as a co-accused person in the charge-sheet, was granted pardon and he gave evidence at the trial (P. W. 3). The learned Assistant Sessions Judge, South Malabar, before whom the case was tried framed fourteen charges against the nine accused persons. The principal charge was one of conspiracy under S. 120B read with S. 409 of the I. P. C. The other charges were based on and had reference to, the several illegal acts committed by one or more of the conspirators in pursuance of the conspiracy. The sixth charge was framed against the appellant in respect of acts alleged to have been committed by him in pursuance of the said conspiracy. It consisted of three counts. Under the first count, the appellant was charged under S. 409 with having committed criminal breach of trust in the sum of Rs. 26,000 between April 1949 and October 1951. The second count charged the appellant under S. 471 with having fraudulently or dishonestly used as genuine a voucher alleged to have been issued by one Kadiri Assoo which the appellant knew or had reason to believe to be a forged document; while the third count was under S. 477-A and it was based on the allegation that about the same time and place and in pursuance of the said conspiracy the appellant, being a director and President of the said Society and with intent to defraud, falsified the day-book of the Society which belonged to the Society. The learned trial Judge held that the main charge of conspiracy had not been proved. He also found that the charges other than charge six which had been framed against the other accused persons had also not been established. That is why he acquitted all the accused of the said offices. In regard to charge six, however, he held that the first and the third counts of the said charge had been proved against the appellant beyond a reasonable doubt but not count two. Accordingly he acquitted the appellant of count two and convicted him on counts one and three. For the offence under S. 409 the appellant was sentenced to suffer rigorous imprisonment for four years and six months and also to pay a fine of Rs. 1,000 or in default to suffer rigorous imprisonment for a further period of six months. For the offence under S. 477-A he was sentenced to undergo rigorous imprisonment for one year. The learned Judge directed that both the sentences should run concurrently.

2. This order of conviction and sentence was challenged by the appellant by his appeal to the High Court of Madras. The High Court accepted his appeal in regard to his conviction under S. 477-A and set aside his conviction on that count and acquitted him of the said charge. The conviction of the appellant under S. 409 was confirmed by the High Court and so was the sentence of four years and six months. It, however, took the view that having regard to the said sentence of rigorous imprisonment it was unnecessary to im