These are two references made by the Sessions Judge, Tripura, under Sec­tion 438 Cr. P. C. to quash the charges framed by the S.D.M., Sadar, on 30-5-1963 against the petitioner-accused in C.R. cases No. 16 of 1963 and 15 of 1963 on his file respectively under Sections 406 and 403 I.P.C. for the offences of criminal breach of trust and criminal misappropriation. As the learned Counsel for both the parties argued both the cases as clubbed and as the same questions of law arise for determination and as the petitioner is the same in both the cases, they are disposed of by this common judgment.

(2) In Criminal reference 14 of 1965 the case of the prosecution is that the petitioner is a contractor, who was previously execut­ing contracts in the Public Works Depart­ment, Tripura. that on 21-11-1960 he en­tered into a contract with the Executive Engiiieer, Agartala Division No. Ill for construction of a Primary School for 150 days in Dakshina Anandanagar, that in pursu­ance of the contract the petitioner was en­trusted with 100 bags of cement, 15 bund­les of G. C. I. sheets and 5 Cwt. M. S. Rod 5/8" diameter, on 17-1-1961, of the total value of Rs. 5.520,76 nP., but that he con­structed only the plinth utilizing 30 bags of cement and that he committed either criminal breach of trust or criminal misap­propriation of the remaining materials. So, the Executive Engineer, Agartala Division No. Ill filed a written complaint on 7-1-1963 against the petitioner in the Court of the Sub-divisional Magistrate, Agartala, Sadar, for the prosecution of the petitioner under Section 406 or Section 403 I.P.C.

(3) In Criminal reference 15 of 1965 the same petitioner was said to have been entrusted with 3 bundles of G.C.I, sheets on 24-3-1961, 10000 first class bricks on 25-8-1961 and 50 bags of cement on 30-8-1961 of the total value of Rs. 3,987.70 nP. in respect of another contract dated 24-1-1961 enter­ed into by the petitioner with the Eecutive Engineer, Agartala Division No. Ill for the construction of a Primary School in Indranagar, but that the petitioner started only preliminary work such as foundation trench cutting in the site and that he either com­mitted criminal breach of trust under Sec­tion 406 I.P.C. or that he dishonestly mis­appropriated or converted to his own use the property under Section 403 I.P.C. So, the Executive Engineer, Agartala Division No. Ill filed a written report against him on 7-1-1963 for prosecution.

(4) The learned S.D.M., Sadar, examin­ed witnesses separately and framed alter­native charges in each case. He clubbed the charges for criminal breach of trust under Section 406 I.P.C. and for dishonest misap­propriation or conversion to the use of the petitioner of the properties in question under Section 403 I.PC by making from alternative in the same composite charge in each case. But, the time included between the first and last of the dates in the charges did not exceed one year. For the sake of clarity, the charges framed in C.R. 16 of 1963 (which are similar to the charges framed in C.R. 15 of 1963) are reproduced below:

"I. Shri S. R. Chakraborty, Magistrate 1st class. Agartala hereby charge you as follows.

That you sometime, during the period from March. 1961 to 21st of February. 1962 at Dakshina Ananadanagar under P. S. Agartala, being entrusted with certain pro­perty, to wit 70 bags of cement. 15 bund­les of G C. I. sheets, and 5 CWT of M/S Rod measuring 5/8" on 17-1-61 at Agartala, total value of these materials being Rs 5,520.76 nP. committed criminal breach of trust; and that you thereby committed an offence punishable under Section 406 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried by me on the said charge.

OR

That you some time during the period from March, 1961 to 21st February, 1962 at Dakshina Anandanagar under P.S. Agartala dishonestly misappropriated or converted to your own use certain property, to wit 70 bags of cement, 15 bundles of G. C. I. sheets and 5 Cwt of M.S.

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