Bihari Lal Kejriwal vs Jogendra Prasad

Uday Sinha, J.—This application in revision is directed against the order of Sessions Judge, Muzaffarpur, by which he quashed the prosecution of the opposite party for certain offences alleged to have been committed by him. The facts, in brief, are as hereinafter stated. On 17.11.1977 the petitioner filed a complaint in the Court of Chief Judicial Magistrate. The contents of the complaint were that the complainant is partner of a firm which transacts business under the name and style Ganesh Dass Jagarnath in the town of Muzaffarpur. The firm does business in cloth. On 28.9.1973 the accused-opposite party requested the complainant to give cloth to him on the understanding and undertaking that the cloth supplied to the accused would remain the property of the complainant and that the accused would deposit the sale proceeds of the cloth entrusted to the accused by the firm. In case the cloth was not sold it was to be returned back to the complainant petitioner. On that understanding, cloth worth Rs. 7,080.57 was entrusted to the accused. For some months the accused neither deposited the sale proceeds nor the cloth. On 25.5.1974, however, the accused deposited Rs. 3,000/- with the complainant. The complainant waited for some months in the vain hope that the accused would either deposit the balance sum of Rs. 4,080.57 or return the cloth but nothing of the kind was done by the accused. Having waited for six months the petitioner filed complaint as mentioned above. On receipt of the complaint, the Additional Chief Judicial Magistrate, Muzaffarpur, took cognizance of offence u/s 420 and issued processes against the opposite party. The accused being aggrieved by the order of the learned Magistrate moved the Sessions Judge, Muzaffarpur, in revision. The learned judge held that no offence of cheating had been committed by the accused. The cognizance and issuance of process was, therefore, quashed. Being aggrieved by the order of the learned Magistrate the petitioner have moved this court by the present application.

Learned counsel for the petitioner has submitted that whatever may be the position in regard to the offence of cheating the fact c early constitute offence u/s 409 of the Indian Penal Code and, therefore, issuance of processes against the petitioner was illegally quashed by the Learned Judge. In my opinion, the submission has substance and must be accepted.

A perusal of the complaint (Annexure-1) shows that it has been emphasized at several places that cloth was entrusted to the accused. In paragraph 2, it has been explicitly stated that the cloth supplied would remain the property of the complaints. Similarly, in paragraph 3 of the complainant, it was stated that the cloth was entrusted to the accused on the undertaking of the petitioner. The undertaking was that either the cloth would be returned or the price thereof would be deposited with the complainant; neither was done. It is therefore, obvious that the accused had been entrusted with property. The accused misappropriated by not returning the cloth or the price thereof. This act of the accused was in violation of the legal contract between the parties. An offence of criminal breach of trust was clearly committed. The only answer to this submission urged on behalf of the opposite party was that the facts attracted only section 406 of the Indian Penal Code and not 409. Since cognizance had been taken more than three years after the commission of the offence no cognizance of offence u/s 406 could be taken. I regret learned counsel for the petitioner (sic) is not justified in this submission. Section 469(1)(b) provides that the period of limitation in relation to an offender shall commence where the commission of offence was not known to the person aggrieved by the offence, the first day on which such offence comes to the knowledge of such person. In the instant case, the complainant realised that his goods have been misappropriated by the accused in November, 1977. Before that the complainant was expecting the accused to deposit the balance of the sale proceeds or return the cloth. It cannot, therefore, be contended with any amount of reason that the offence was committed on 28.9.1973 itself when the goods had been entrusted to the accused. Cognizance of the offence was taken on 17.11.1977. From these facts it is difficult to hold that cognizance of the offence had been taken more than three years after the commission of the offence.

The submission urged on behalf of the opposite party has no substance for another reason. Section 409 provides punishment for criminal breach of trust by a merchant or agent. The accused was certainly merchant or agent of the complainant. In that view of the matter, section 409 of the Indian Penal Code also would be attracted to the facts of this case. If, upon the facts alleged in the complaint, section 409 also would be attracted the question of limitation does not arise. In my view, therefore, the order of the learned Judge quashing issuance of process was clearly illegal. For the reasons, stated above, the application is allowed and the order of the learned Judge dated 14.3.1980, in criminal revision No. 143/78, is hereby set aside. The learned Magistrate will now take up the case and dispose it of according to law.