Rameshwar Dass Garg and Others vs Punjab National Bank

Virender Singh, J.—The present petition u/s 482 of the Code of Criminal Procedure has been filed by the petitioners for quashing of

complaint dated November 15, 1997 (Annexure P1) and the summoning order dated December 22, 1997 (Annexure P2) passed by learned

Judicial Magistrate 1st Class, Malerkotla.

The respondent/complainant, Punjab National Bank filed a complaint against the petitioners under Sections 408, 420/120B, IPC alleging that

the petitioners had applied for securing cash credit hypothecation against the goods/stocks purchased or to be purchased to the complainant/Bank

and consequently the cash credit hypothecation of stock facility was sanctioned to them to the tune of Rs. 40 lacs. In this regard the petitioners

executed various documents in favour of the Bank, At the time of filing of the complaint, a sum of Rs. 23,29, 730-98 stood due in the account of

C.C Hypothecated limit No. 405 along with interest and costs, etc. When the petitioners failed to submit stock statement to the Bank, the physical

inspection was got conducted by the Bank, during which the hypothecated goods were found missing from their physical possession and only

meagre stocks were found lying there. Major portion of hypothecated goods were found misappropriated. Since the petitioners failed to submit

any explanation regarding hypothecated goods, the present complaint (Annexure P1) was filed.

Vide impugned order dated December 22, 1997 (Annexure P2) the learned Judicial Magistrate summoned the petitioners to face trial under

Sections 408, 420 and 120B, IPC.

It has been averred in the present petition that no case whatsoever is made out against the petitioners as the firm was having regular transactions

with the Bank and the stocks were merely hypothecated and not pledged with the Bank and in these circumstances, since the title in the said

stocks/goods had never passed on to the Bank, therefore, the firm and its partners remained owners thereof and were free to deal with the same.

It has been further averred that the allegations clearly show that the liability of the firm of the petitioners is purely of civil nature and the Bank is

demanding the outstanding amount against the firm, as is clear from the various letters sent to the firm by the Bank.

A reply has been filed on behalf of the complainant/Bank, refuting the assertions made in the petition and submitting that according to the

allegations in the complaint, the petitioners, who were having the physical possession of the hypothecated goods, were in fact not the custodians of

those goods in their right, but as agents of the Bank and once on physical verification by the Bank officials, the hypothecated goods were found

missing, the petitioners become liable for the offences as alleged.

I have heard Mr. D.R. Mahajan and Ms. Anita Sharma, learned Counsel for the petitioner and Mr. S.M.L. Arora, learned Counsel for the

respondent. With their assistance, I have gone through the entire record.

Mr. Mahajan at the very outset has submitted that in fact it is an admitted position between the parties that the stocks of the aforesaid firm, of

which the petitioners are partners, were hypothecated with the Bank and in this regard an agreement was also executed. According to him, the

present case was of mere hypothecation of stocks and those were never pledged with the Bank. Mr. Mahajan further submitted that since it is a

case of hypothecation of stocks goods, title thereof had never passed on to the Bank and it remained with the firm and its partners, therefore, they

were free to dispose of the same being its owners and in that eventuality, the partners being owners thereof, the question of breach of trust or

misappropriation by any of the partners does not arise so as to attract Sections 408 or 120B, IPC. With regard to the allegations u/s 420, IPC,

Mr. Mahajan submitted that the petitioners, are duly discharging their liability towards the Bank and that the proceedings are pending before the

Debt Recovery Tribunal, Chandigarh, in which some amount has already been paid and the petitioners have agreed to settle their account in full

and final payment in due course by way of quarterly instalments.

On the other hand, Mr. Arora has vehemently argued that even if the petitioners are making payment before the Debt Recovery Tribunal, they

are not absolved of their criminal liability and as such the impugned complaint and the summoning order should not be quashed.

After giving my thoughtful consideration to the entire matter, I am of the view that the plea raised by Mr. Mahajan, learned Counsel for the

petitioners deserves to be accepted.

In CBI, New Delhi v. Duncuns Agro Industries Ltd. Calcutta (1996) 3 CCR 68=1996(3) RCR 60 (SC), it was observed by the Apex Court

as under :

The expression ''entrusted'' appearing in Section 405, IPC is not necessarily a term of law. It has wide and different implications in different

contexts. It is, however, necessary that the ownership or beneficial interest in the ownership of the property entrusted in respect of which offence 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. The expression ''trust'' in Section 405, IPC is a comprehensive expression and has been used to (donate?) various kinds of

relationships like the relationship of trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee. When some goods are

hypothecated by a person to another person, the ownership of the goods still remains with the person who has hypothecated such goods. The

property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or

the beneficial interest in or ownership of it must be in other person and the offender must hold such property in trust for such other person or for his

benefit. In a case of pledge, the pledged article belongs to some other person but the same is kept in trust by the pledgee. In the instant case, a

floating charge was made on the goods by way of security to cover up credit facility. In our view, in such a case for disposing of the goods

covering the security against credit facility the offence of criminal breach of trust is not committed.

Following the law laid down in CBI, New Delhi''s case (supra), this Court in Sunita Bajaj v. Punjab and Sind Bank (1998) 2 CCR

291=1998(1) RCR 129, has also quashed a criminal complaint. In a recent judgment of this Court in S.P. Bajaj v. State of Haryana 2003(1) RCR

583, the proceedings on the basis of the law laid down in CBI, New Delhi''s case (supra) were quashed.

So far as the offence u/s 420, IPC is concerned, it is very clear that there is no allegation in the complaint that the credit limit was got

sanctioned by the firm or its partners by playing any fraud on the Bank. Simply because they have shown some lapses in repayment, would not by

itself bring the case within the mischief of Section 420, IPC, My view is fortified by the decision of the Apex Court in Hridaya Ranjan Pd. Verma

and Ors. v. State of Bihar and Ors., II (2000) CCR 62= (2000) 3 SLT 526=2000(2) RCR 484 (SC).

As sequal to the aforesaid discussion, the present petition succeeds, the complaint (Annexure P1), the summoning order (Annexure P2) and

the subsequent proceedings are hereby quashed.