S. Mitter vs The State

Debabrata Mookerjee, J.—These are two connected Rules calling upon the opposite parties to show cause why two proceedings u/s 406 of the Indian Penal Code pending against the Petitioner in the court of a Presidency Magistrate, Calcutta, should not be quashed or why such other or further orders should not be made as to this Court might seem fit and proper.

The Petitioner is charged with having committed criminal breach of trust in respect of a refrigerator and a radiogram in. violation of ''hire purchase agreements executed in respect of them. Breaches of the agreements having occurred, two complaints were preferred, one in respect of the refrigerator and the other in respect of the radiogram and these two revision petitions arise out of them. These Rules are accordingly dealt with and disposed of together.

The opposite party preferred complaints charging the Petitioner with having committed breach of trust in respect of the refrigerator and the radiogram in violation of the two agreements executed by the Petitioner. It is said that the Petitioner executed these hire purchase agreements, and entered into contracts with the complainant''s firm called "Alamode "Furnishers" which carry on business at Calcutta. The principal terms and conditions of the agreements were that the Petitioner was to pay Rs. 100 as initial payment by way of hire and thereafter he would pay Rs. 100 per month towards hire for 24 months. It was further stipulated that if any monthly hire was left unpaid, complainant firm might terminate the agreement and recover possession of the article-in question. It was also stipulated that during the currency of the contract of hire, the Petitioner was to have no right of property or lien in the articles. The Petitioner who was described as the lessee failed to pay the stipulated hire for several months whereafter the contract of hire was terminated on a certain date; and as there was failure to deliver back possession of the properties in question, the two complaints were preferred in court charging the Petitioner with having committed criminal breach of trust u/s 406 of the Indian Penal Code.

The Petitioner appeared in court in obedience to the processes issued and thereafter applied to this Court and obtained these Rules.

The only question in these Revision petitions is whether upon the facts alleged and the complaints made, charges of criminal offence u/s 406 of the Indian Renal Code are sustainable.

It is necessary to recall some of the conditions attached to the contract of hire. The lessee was given the option to" purchase the articles which were the subject-matter of hire at any earlier time during the currency of the contract of hire by paying in a lump sum the balance of all the hire payments stipulated for. The lessee was also given the liberty to terminate the contract of hire at any time before the articles became his property and he was to have no right of property over the articles otherwise than as a "lessee" thereof. There are various other conditions attached to the contract which it is not necessary, for the purpose of these Rules, to recapitulate. Suffice it to say that the agreement of hire is, on the face of it, a contract entered into between the parties, evidencing an arrangement between them, as respects hire of certain articles which hire was in the course of time to ripen into purchase. The contract itself describes the parties as "lessors" and "lessees" and the Petitioner is treated throughout on the footing of the lessee in respect of the radiogram and the refrigerator. this Court need not be detained over the appositeness of the expression "lessor" and "lessee" in the context of these contracts. The fact remains that the accused Petitioner is treated as having certain rights. Whatever those rights may have been, he was certainly ''entitled to keep and possess the articles which were the subject-matter of hire, provided he fulfilled the other conditions of the contract. But from the bundle of rights belonging to the lessor some sticks appear to have been taken away and the lessee is to be treated as a person having some rights under the contract of hire. The contract, evidencing the agreement and regulating mutual rights and obligations embody certain conditions and it is the breach of some of the conditions that forms the subject-matter of the present criminal proceedings. It seems to me that mere failure to pay the instalments of hire will not make out a case of criminal breach of trust. There can be no doubt that the case of mere breach of hire agreement without more, cannot possibly form the subject-matter of a criminal charge.

Mr. Basu has strenuously contended that Section 405 of the Indian Penal Code is widely worded so as to include within its ambit cases of breach of hire purchase., agreement. Whatever may be said of this view of Section 405 it is reasonably clear upon the allegations made in these cases that the real complaint against the Petitioner is that he failed to pay certain sums of hire money. In a case of criminal breach of trust, the property remains with the person entrusting and the person entrusted does not have any right of his own in the property. In the present case, the lessee is acknowledged to have some interest He has his rights. As for example he has his rights not to have the property taken away as long as he fulfils the conditions mentioned in the contract. That being so, this is not a case which could be pressed into the four corners of Section 405 of the Indian Penal Code,

As I have already indicated the only allegation is that there has been a breach of agreement in the sense that there was failure to pay some instalment of the hire. For that certainly the complainant has his remedy in the civil court. I am not suggesting for a moment that simply because there is a civil remedy available, the criminal court will even in an appropriate case be deprived of its jurisdiction. What I wish to say is that here the allegations merely point to a civil dispute between the parties and do not contain the Kernels of a criminal case. The terms of the contract themselves indicate that the Petitioner who is described as a lessee of the properties have certain rights in respect of the properties and that again in the view of. the lessor himself. Besides the allegation that there was default in payment of the hire instalments, there is no others allegation in these cases. That being so. I think the present proceedings are misconcieved.

In the result, the Rules are made absolute and the proceedings out of which they arise are quashed.