JUDGMENT John Edge, Kt., C.J. and Burkitt, J.
1. A Magistrate of the first class convicted Babu Lal on three charges of the offence punishable under Section 409 of the Indian Penal Code, and sentenced him accordingly. Babu Lal appealed to the Sessions Judge, and the Sessions Judge, as we understand his judgment, was of opinion that Babu Lal was not in law liable to be tried, "on the aggregate of numerous alleged offences." We do not quite understand what the Sessions Judge precisely meant by that, but we surmise that he may have thought that a man could not be convicted of the offence under Section 409 of the Indian Penal Code in respect of the deficiency proved on an aggregate of several amounts received by him for his employer. There were in fact three specific charges on which the Magistrate had convicted Babu Lal. We are aware that it has been considered by some that a charge of embezzlement should be confined to a specific sum received and not accounted for. Where it is possible to prove that a specific sum received has been embezzled, the charge should be confined to that particular item, but where an agent or servant has received over a period of time several sums on behalf of his employer, and has, during the same time, expended moneys on behalf of or made payments to his employer, but still a deficiency was left, for which the agent or servant would or could not account, it might be impossible to fix him with the embezzlement of any one particular item received by him, although, taking the items proved on both sides of the account and his course of conduct, it might be obvious that he had embezzled a large sum of money, namely, the difference between the amounts received and those expended and accounted for. The question as to whether an accused person can be charged with criminal breach of trust in respect of a general deficiency has been dealt with by our brother AIKMAN in Queen-Empress v. Kellie I.L.R. 17 All. 159. With his judgment in that case we entirely agree. The accused does not appear to have been prejudiced by three charges as to general deficiencies having been tried together, and consequently Section 537 of the Code of Criminal Procedure would apply. The learned Sessions Judge was probably not aware of the judgment of our brother Aikman to which we have referred, and consequently went wrong in law. We set aside the order of the Judge, and direct him to proceed with the trial of the appeal before him of Babu Lal according to law. We direct a warrant to issue for the arrest of the accused. The warrant will direct that he be brought before the Court of the Sessions Judge, and the Sessions Judge may commit him to prison pending the disposal of the appeal or may admit him to bail.