P. Raghunath Patro vs The State

N.K. Das, J.—The Petitioner has been convicted u/s 406, Indian Penal Code and has been sentenced to undergo R.I. for six months and to pay a fine of Rs. 1000/-, in default to undergo R.I. for a further period of six months.

Prosecution case, briefly stated, is that on a surprise checking of the rice mill of one Kunjalata Panda on 12-5-1972, 100 bags of paddy and 9 bags of rice were seized from within the premises of the rice mill of Kunjalata. As the stock was not mentioned in the stock register or in the accounts of the mill, after seizure, the stock was entrusted to one Sankar Narayan Patro P.W. 4 on that very day. As P.W. 4 expressed his inability to keep the stock in his custody, the Petitioner applied to take custody of the stock. Accordingly, the Petitioner was put in charge of the stock on 13-5-1972. vide Ext. 4. On 9-10-1972 there was verification of the stock by the officers of the Supply Department. On verification, it was found that there was shortage of 17 bags of paddy and 9 bags of rice. As such, charge-sheet was submitted against the Petitioner u/s 406, Indian Penal Code. The defence plea, as it transpires from the statement of the Petitioner, is a neat and clean denial of the prosecution case.

Prosecution relies on the testimony of P.Ws. 1, 2 and 4 and documentary evideuce like Exts. 3, 4 and 5 for implicating the Petitioner in the commission of the offence. Mr. Patnaik, the learned Counsel for the Petitioner, contends that at no point of time the bags had been weighed. He also submits that the documentary evidence produced on behalf of the prosecution establishes that the Petitioner has not committed the offence.

There is no dispute about the fact that 100 bags of paddy and 9 bags of rice were seized from the premises of the rice mill of Kunjalata Panda. The stock was kept in the custody of P.W. 4. On the following day, the Petitioner applied that the Zima in favour of P.W. 4 be cancelled and the stock might be kept in his Zima. This application was allowed which is evident from Exts. 3 and 4. Five monts thereafter, verification of stock was made by the officers of the Supply Department. It is admitted by the prosecution witnesses that the entire stock seized was kept inside the mill of Kunjalata. From the testimony of P.W. 1, the Inspector of Supplies, it appears that the stock of paddy and rice was all along inside the rice mill. The stock was not weighed. P.W. 2 was the Supervisor of Supplies. He has stated that the mill owner could not say as to who was the owner of the stock. The Tahasildar, P.W. 3, has stated that the stock was all along inside the mill and when he went for verification, the mill owner opened the lock where the stock had been kept. P.W. 4 who was the first custodian of the stock has stated that the seized stock was kept inside the mill and the mill was not locked. P.W. 7 is the investigating officer who has stated as follows:

One Kunjalata Panda was the owner of the mill. No property was found there. I did not make any attachment of property anywhere. I did not recover anything from the house of accused. No evidence was forthcoming before me about the properties. Missing property consists of paddy and rice.

The statement of the Petitioner was recorded by the Tahasildar on 9-10-1972 when verification of the stock was made which has been marked Ext. 5 and prosecution places reliance on it. The Petitioner has stated that out of the said stock. 90 bags of paddy belonged to him. Since he had thirty-two members in his family, he had to consume the stock of paddy and he had taken 17 bags of paddy and 9 bags of rice from the stock for his own consumption. In support of this contention, he has also produced Ext. A, the petition dated 4-2-1972 filed by him before the Tahasildar for permission to bring rice from his field. This rice was about 15 Bharans. This was also allowed by the Tahasildar. The officers of the Supply Department examined on behalf of the prosecution have stated clearly that they did not know whether the stock which was handed over to the Petitioner consisted of bags belonging to the Petitioner, nor they enquired anything about it. No evidence has been adduced on behalf of the prosecution to show that the stock did not consist of paddy and rice belonging to the Petitioner. P.W. 1, the Inspector of Supplies has categorically stated that he did not know that the Petitioner had kept his 90 bags of paddy in the rice mill with the permission of the Tahasildar or any other bag of rice or paddy inside the mill compound. He admits that he did not enquire if permission had been granted by the Tahasildar to the Petitioner for getting paddy from his land and he was not aware if some of the bags of paddy and rice belonged to the Petitioner. So also P.W. 2, the Supervisor of Supplies has admitted his ignorance about the fact that some of the bags of paddy and rice belonged to the Petitioner. He also admits that he did not know if the Petitioner had brought some paddy from his field with the permission of the Tahasildar and had kept the same inside the mill compound.

From the aforesaid evidence, it transpires that 100 bags of paddy and 9 bags of rice were taken charge of by the Petitioner. None of the prosecution witnesses know if those bags consisted of certain bags of paddy and rice belonging to the Petitioner. The Petitioner admits that he had removed 17 bags of paddy and 9 bags of rice and he says that he took the same for his family consumption. His statement Ext. 5 which is relied upon by the prosecution along with Ext. A clearly establishes that the Petitioner had brought 90 bags of paddy and had kept the same inside the mill. The rice and paddy bags were seized from the mill and those were kept inside the mill. These bags were all along inside the mill till the stock was verified five months thereafter. It is contended by Mr. Patnaik that from the materials available on record, as stated above, the Petitioner cannot be said to have committed the offence u/s 406, Indian Penal Code. The first contention on behalf of the Petitioner is that for an offence u/s 405, Indian Penal Code, prosecution has to establish that the property entrusted to the Petitioner was property of another person, but not of the Petitioner. Reliance has been placed on Chelloor Mankkal Narayan Ittiravi Nambudiri Vs. State of Travancore-Cochin, . Referring to the definition of "Criminal Breach of Trust", it has been observed in the aforesaid decision:

It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit.)

In Velji Raghavji Patel Vs. State of Maharashtra, , it has been held:

An owner of property, in whichever way he uses his property and with whatever intention, will not be liable for misappropriation and that would be so even if he is not the exclusive owner thereof.

This was a case of a partner and it has been held that if the partner chooses to use any of the properties for his own ''Purposes, he does not, thereby, commit any misappropriation. A Division Bench of Calcutta High Court in Sreenarayan Shroff v. Sambhu Prosad Agarwal 79 C.W.N. 538, has held that in order to constitute a legal entrustment, the complainant must be the owner of the property, and there must be a transfer of possession and such transfer must be made by some body who has no right excepting that of a custodian. Principles described as "Panch Sheel" of a legal entrustment within the purview of Section 405, Indian Penal Code have been laid down relying on several decisions of the Calcutta High Court including the aforesaid decision reported in Velji Raghavji Patel Vs. State of Maharashtra, . In view of the aforesaid decisions, prosecution has to establish in order to prove commission of an offence u/s 405, Indian Penal Code that the entrustment to the Petitioner was in respect of property belonging to another. But in the instant case, the Petitioner has been able to establish that out of the stock entrusted to him he was owner of about 90 bags of paddy and the plea taken by the Petitioner appears to be reasonably probable.

The learned Standing Counsel has relied on Jaswantrai Manilal Akhaney Vs. The State of Bombay, . This decision does not help the prosecution in any way. It has been observed in this decision that Section 405, Indian Penal Code contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain event. This decision, on the other hand, supports the contention of the Petitioner. Reliance is also placed by the prosecution on Emperor Vs. J. McIver and Another, , and it is contended that the word "entrusted" is not necessarily a term of law, but mere handing over possession for some purpose without any proprietary right. This observation is contrary to the principles laid down by the Supreme Court. Moreover, this was a case in which the property belonged to the complainant and the accused persons were entrusted with that property with dominion over the same. This decision does not help the prosecution in any way. Prosecution also relies on State Vs. Dahyalal Dalpatram, , for contention that for establishing entrustment of property, it matters little whether the complainant on whose behalf the property is entrusted is the owner thereof or not. The dictum laid down by the Supreme Court, as stated above is contrary to the principle laid down in this decision. Moreover, this was a case where the accused was entrusted with collection of land revenue and fines and he had collected the same. It was observed that he was in charge of public funds and was entrusted with money. The facts and circumstances of that case are completely different from the facts and circumstances of the present case. This decision also does not help the prosecution.

In view of the dictum laid down by the Supreme Court and the plea of the Petitioner, it is reasonably probable that the bags entrusted to the Petitioner consisted of bags belonging to the Petitioner himself. Therefore, it must be held that there was no entrustment of the bags of which the Petitioner was the owner, as envisaged by the provisions of Section 405, Indian Penal Code. Therefore, the admission of the Petitioner that he had removed his own bags for his household consumption because he bad a large number of family members, does not establish the guilt of the Petitioner.

In the result, the revision is allowed. The conviction and sentence of the Petitioner are set aside and be is acquitted of the charge levelled against him.

Revision allowed.