Jugal Kishore Saraf vs State of Assam

A.K. Patnaik, J.—This is an application u/s 397/401/482 of the Code of Criminal Procedure, 197 3 quashing the order dated 11-10-88 of the learned Additional Chief Judicial Magistrate, Nagaon in G.R. Case No. 5060/83 framing charge against the Petitioners under Sections 407/34 of the Indian penal Code.

The facts of the case are that a first Information report was lodged by the Managing Partner of Regal Trading Company In his letter dated 26-7-83 before the Officer-in-Charge, Nagaon, Police Station, Nagaon stating therein that a consignment of 30 chests of tea was sent by the Head Office of Regal Trading Company through M/s. East India (Assam) Transport Organization under Consignment Note No. EITO/1309 dated 9th July 83. It is further stated in the said FIR that M/s last India (Assam) Transport Organisation, Dibrugarh informed the informant that the consignment was despatched on 14th July 83 by Truck No. ASO 6801 and was delivered to their agent M/s. Tezpur Roadways Daccapatty Nagaon on 15th July 83. Thereafter, M/s. Tezpur Roadways instead of delivering the consignment to M/s. Regal Trading Company have sent the said consignment to Gauhati without the express permission from M/s. Regal Trading Company.

As per the said FIR, the value of the consignment would be Rs. 25,000/-

Pursuant to the said FIR an investigation was carried but and after recording statements u/s 161 Code of Criminal Procedure and seizing documents the police submitted a charge sheet on the basis of which a charge u/s 407/34 of the IPC has been framed by the learned Additional Chief Judicial Magistrate, Nagaon in G.R. Case No. 5060/83 against the Petitioners who also belong to M/s.Tezpur Roadways.

I have heard Mr. T.C. Khetri, learned Counsel for the Petitioner and Ms. A. Hazarika, learned Public Prosecutor.

Mr. Khetri submits that on a reading of the materials on the records and in particular the First Information Report, the statements of the witnesses u/s 161 Code of Criminal Procedure and the documents on record, It would be clear that no offence is made out u/s 407 of the IPC and hence this is not a fit case where the learned Additional Chief Judicial Magistrate, Nagaon should have framed charge u/s 407/34 of the Indian Penal Code. Mr. Khetri accordingly, submits that the order dated 11-10-88 of the learned Additional Chief Judicial Magistrate, Nagaon framing charge against the Petitioners is liable to be quashed as the Petitioners would be put to unnecessary harrassment in case the trial proceeds, Ms. Hazarika, on the other hand, submits that since the investigation is complete and materials have been brought on record to establish, a prima-facie case of criminal broach of trust by the Petitioners, the order framing charge should be sustained by this Court and the prosecution be allowed to proceed.

The present case being a warrant case trial has to be conducted in accordance with Chapter XIX of the Code of the Criminal Procedure 1973. Section 239 of the Code of Criminal Procedure provides that if the Magistrate considers on the basis of the police report and the documents sent along with the police report that the charge against the accused is groundless, he shall discharge the accused. Section 240 of the Code of Criminal Procedure further provides that if upon such consideration the Magistrate is of the opinion that there were grounds for presuming that the accused has committed an offence, he shall frame a charge against the accused, The limited question therefore at this stage is to find out as to whether or a consideration of the police report and the documents sent with the police report there are grounds to presume that the Petitioners had committed the offence u/s 407/34 of the Indian Penal Code.

Section 407 of the Indian Penal Code provides the quantum of punishment in case of criminal breach of trust by a carrier, wharfinger of warehouse-keeper and the expression "criminal breach of trust" has beer defined by Section 405 of the Indian Penal Code, The short question therefore is as to whether on the materials on record before the learned C.J.M. it could be presumed that the Petitioners had committed either individually or with common intention the offence of criminal breach of trust as defined in Section 405 of the IPC. Section 405 of the Indian Penal Code is quoted herein below:

Section 405 : Criminal breach of trust-whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers and other persons so to do, commits "criminal breach of trust.

A bare reading of the aforesaid Section 405 of the Indian Penal Code shows that dishonest misappropriation or conversion to his own use or dishonest use or disposal of the property in violation of any direction of law or of any legal contract, is a necessary ingredient of the offence of criminal breach of trust. As has been explained by the Allahabad High Court in a case reported in AIR 1956 in the offence of Criminal breach of trust as defined in Section 405 of the Indian Penal Code criminal misappropriation or conversion of property or dishonest use or disposal of property in violation of any direction of law or legal contract are all positive acts and not just negative commissions, Accordingly, unless the properly entrusted to the accused is disposed of or used by the accused, the offence would not be complete. It has also been explained by the Orissa High Court in a case reported in AIR 1963 (2) Crl. L.J, 474 that the main distinction between civil liability, on the one hand, and criminal breach of trust, on the other, lies in the existence of dishonest intention, that is to say the mental act of fraudulent misappropriation.

In the present case, the police report and the documents sent, along with the police report would show that the aforesaid two ingredients pointed out by the Allahabad High Court and the Orissa High Court are absent. Along with the police report a copy of the seizure list dated 5-8-83 was sent to the Magistrate which is quoted hereunder in extenso:

I.S.I. D.D. Nath of Bharalumukh P.S. do hereby seize the following tea chests and concerning, papers on being produced by Sri Jugal Kishore Saraf, Manager, Tezpur Roadways, Kedar Road, Guwahati in his own office godown in connection with the above noted case of Nowgong P.S. in preserve of the following signed witnesses on being identified by Sri Ajoy Baruah on behalf of M/s. Regal Trading Co., Dibrugarh. Description of articles seized.

30 (thirty) Nos. of B/tea chests having Invoice No. C-35/83 on the body of the chests, Mark-Khanikar T/E.

Consignment note of East India (Assam) Transport Organisation No. EITO/1309 dt. 9-7-83 from Dibrugarh to Nowgong of 30 chests of tea (two copies duplicate).

Garden Invoice No. C-35/83 dt. 9-7-83 of Khanikar T/E regarding 30 chests of tea in triplicate.

Signature of identifier Sd/- Ajoy Baruah

Witnesses:

Sd/- Jugal Kishore Saraf

Sd/- Makhanlal Sarmah

Sd/- DD. Nath Bharalumukh P.S. 5-8-83

The aforesaid seizure list dated 5-8-83 will show that the Petitioner No. l (accused No. 1) Sri Jugal Kishore Saraf, ManagerTezpur Roadways, Kedar Road, Guwahati -1 himself produced before the police 30 chests of tea in respect of which the allegation of criminal breach of trust has been made and the said 30 chests of tea have been seized by the police. This is therefore, HOI a case where shore has been any misappropriation or conversion or use or disposal of the 30 lea chests entrusted to the Petitioners. There has been some delay and negligence on the part of the Petitioners to deliver the said 30 tea chests to M/s. Regal Trading Co. The First Information Report dated 26th July ''83 as well as the correspondence between the parties and the statements recorded u/s 161 Code of Criminal Procedure also do not indicate that there was actually any dishonest or fraudulent intention on the part of the Petitioners to misappropriate, convert, use or dispose of the 30 tea chests. It is therefore difficult to presume on the materials on record that the Petitioners were guilty of any dishonest or fraudulent act of misappropriating or converting or using or disposing of the 30 tea chests entrusted by East India (Assam) Transport Organisation to M/s. Tezpur Roadways.

On the reasons suited above 1 am unable to accept the submission of Ms, Hazarika that the police report along with the documents sent with the police report to the Magistrate did make out a prima facie Case against the accused-Petitioners u/s 407/34 IPC. As on the consideration of the materials on record there was no ground to presume that offence u/s 407/34 of the IPC was committed by the Petitioner-accused persons, Mr. Khetri is right in submitting that the learned Chief Judicial Magistrate ought to (sic) the Petitioner-accused persons in accordance with Section 239 of the Code of Criminal Procedure and should not have framed the charge u/s 240 Code of Criminal Procedure In the result, the impugned order dated 11-10-88 framing charge against the accused Petitioners and the charges framed against the Petitioner-accused persons in the G.R. Case No. 5060/83 u/s 407/34 IPC are quashed and the Criminal Revision is allowed.