Joinder of charges for criminal breach of trust and misappropriation is invalid for materials, not money; ownership precludes prosecution.

1. These are two references made by the Sessions Judge, Tripura, under S.438 Cr. P.C. to quash the charges framed by the S.D.M., Sadar, on 30-5-1063 against the petitioner - accused in C.R. cases No. 16 of 19R3 and 15 of 1963 on his file respectively under S.406 and S.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 Engineer, 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 bass 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. III 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 S.406 or S.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 baas 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 Executive Engineer, Agartala Division No. III 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 S.406 I.P.C. or that he dishonestly misappropriated or converted to his own use the property under S.403 I.P.C. So, the Executive Engineer, Agartala Division No. III 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 S.406 I.P.C. and for dishonest misappropriation or conversion to the use of the petitioner of the properties in question under S.403 T.P.C., by making them 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 19631 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 S.406 of the Indian Penal Code and within my cogn