State of Haryana vs Prem Singh and Ors.

A. S. Nehra, J.

This appeal is directed against the judgment dated 18.9.1984 passed by the Judicial Magistrate Ist Class, Hansi, by which the respondents have been acquitted under Sections 420/120B, 168 of the Indian Penal Code.

The facts in detail are mentioned vide our judgment in Criminal Appeal No. 208DBA of 1985 arising out of challan No. 1 against the present accused. This appeal arises out of challan No. 3 against the accused persons. Therefore, we feel no necessity to discuss the facts of the present case in detail again. However, under this challan, it is the allegation of the prosecution that on 9.2.1972, the accused persons received a sum of Rs. 2,000/ while they were posted as public servants in the employment of Government of Haryana at Rural Artisan Training Centre, Hansi from the office of the Block Education Officer, Hansi being the sale proceeds of textile goods alleged to be manufactured at their centre and thereby cheated them by dishonestly inducing them to believe that the goods were in fact of Rural Artisan Training Centre, Hansi, whereas, they had reason to believe that the same goods were not prepared at Rural Artisan Centre, Hansi, and in pursuance of this inducement they made the said officer of the Block Education Officer, Hansi to make the payment of the said amount. It is further alleged that on 8.3.1972, the accused received a sum of Rs. 2,176/ in the same capacity from the same office and on the same inducement. It is further alleged that on 10.2.1972 they received a sum of Rs. 4,500/ from the said office on similar facts and circumstances. Both the accused persons were chargesheeted under Section 420 of the Indian Penal Code and 120B of the Indian Penal Code.

Our judgment in Crl.A.No. 208DBA of 1985 be read as a part of this judgment and therein, the said offence has been discussed at length and the accused persons were not held guilty under the similar circumstances and on similar facts and evidence. Therefore, in view of our judgment in Crl. A.No. 208DBA of 1985, the accused persons cannot be held guilty under Sections 420 and 120B IPC.

In challan No. 3, the accused persons have been chargesheeted under Section 168 of the Indian Penal Code also. The allegation of the prosecution is that in the year 1972 both the accused i.e. Prem Singh and Surender Kumar being public servants in the employment of Government of Haryana in the department of Industrial Training being posted at Rural Artisan Training Centre, Hansi and being as such public servants legally bound not to engage in trade, did engage in trade by procuring textile goods from private sources and supplying the same to the Block Education Officer, Hansi and made the alleged sale as if the goods had been manufactured at their centre.

In order to prove the offence under Section 168 of the Indian Penal Code prosecution has to prove the following ingredients beyond doubt.

(a) That the accused was a public servant.

(b) That, he as such, was legally bound not to engage in trade.

(c) That he had engaged in trade.

It is not disputed that the accused persons were acting in the capacity of public servants being the employees of Rural Artisan Training Centre, Hansi. Now, it is to be ascertained whether they got themselves engaged illegally in the trade from which they were legally prohibited under any Act. Only those public servants who are prohibited under any Act from trading come within the purview of this section. For any breach of a departmental rule they cannot be punished under the Code. Public servants are generally not allowed to trade in order to ensure that they may not neglect their duties. Being in official position they can easily obtain unfair advantages over other traders. However, this section punishes those public servants only who were legally bound not to engage in trade. In the present case prosecution has failed to produce any enactment which could reasonably show that the accused persons being public servants were prohibited under any Act from trading. There is no evidence whatsoever, in this behalf which can be reasonably looked into, to reach the conclusion that the accused persons were specifically prohibited from trading by any enactment or any other rule of law, which could have imposed the legal prohibition required to be established under this section. It is settled law that for any breach of a departmental rule the accused persons cannot be punished under this section.

Indian Penal Code contains no definition of the very general word ''Trade'' and no explanation of the equally wide term ''engages in Trade''. This section is in a way incomplete without the assistance of some other enactment or rule of law which imposes the legal prohibition required and the enactment containing the prohibition naturally and necessarily defines the area, which is covered by it, both as to the class of public servants to whom it applies, and the nature of the dealings in which those servants are prevented from engaging. However, several statutes have been passed from time to time prohibiting public officers from engaging in trade. Such statutes either provide the penalty to be inflicted for their breach or refer to this section of the Code.

A person engages in trade who habitually buys and sells with a view to profit. Learned counsel for the appellant has relied upon document Ex.P. 10 in Bill Block Ex. PH and Ex. P 18 in Bill Book Ex. PH read with entry Ex. P16 and Ex. P. 22 in Cash Book Ex. PK, respectively. Relying upon these documents and entries in the record it is vehemently argued by the learned counsel for the appellantState that the accused persons engaged themselves illegally in the ''Trade''.

The dictionary meaning of word ''Trade'' in ''Webster'' dictionary is relied upon by the learned counsel for the respondents. It is stressed by him that the dictionary meaning shows the word ''Trade'' to mean "Occupation, employment or activity, business of any kind, any occupation or employment pursued as a calling, business, the business which a man has learnt or by which he earns his livelihood. Further he submitted that in legal parlance the ''Trade'' has been regarded as meaning, "any business carried on with a view to earn profit." Our attention is drawn to Vol. 38 of Halsbury''s Laws of England, page 8, in which the trade has been given specific meaning as follows :

(a) Exchange of goods for goods or goods for money.

(b) Any business carried on with a view to profit.

Learned counsel for the State has relied upon the proposition of law laid down in AIR 1980 Supreme Court 1167 titled State of Gujarat v. Mahesh Kumar Dhirajlal Thakkar, wherein, it was held by the Hon''ble Supreme Court that :

"The word ''Trade'' in its narrow popular sense means ''Exchange of goods for goods or for money with the object of making profits. In the widest sense, it includes any business carried on with a view to earn profit."

Therefore, we are of the opinion that in widest sense, it includes any business carried on with a view to earn profit and an accused is said to be engaged in trade when he undertakes this activity of exchange of goods for goods or money for profit as a means of livelihood.

In the present case in hand, it is not even alleged by the prosecution as to what profit the accused persons derived out of the transactions made by them. The element of profit which needs to be determined in view to fulfil the ingredients of definition of ''Trade'' is completely missing from the case of the prosecution. This fact is not even alleged by the prosecution in its case. Once, the PWs are completely silent on this element of profit, we have no hesitation in holding that they were not engaged in a ''Trade'' which was specifically prohibited by any enactment or the rule of law.

It is further argued by the learned counsel for the State that every sale includes profit but this argument of the learned counsel is based on conjectures. Under these circumstances, court cannot reconstruct the case of the prosecution and it is the prosecution which must have stood on its own legs to bring home all the ingredients of the offence which are required to be established and proved beyond doubt for convicting the accused persons.

In order to prove the element of profit or probability of it, the prosecution must have proved beyond the shadow of reasonable doubt that there was some differences between the purchase price and resale price of the goods supplied to the Block Education Officer''s office, Hansi. In all the 15 challans, the prosecution has failed to do so.

In view of the above discussion, the respondent cannot be convicted of offence under Section 168 IPC also. Therefore, there is no merit in the appeal and the same is dismissed.