Research › Browse › Judgment

Patna High Court · body

1974 DIGILAW 140 (PAT)

GANGA PRASAD PATHAK v. RAGHUNANDAN

1974-08-02

S.ALI AHMAD

body1974
JUDGMENT : S. Ali Ahmad, J. In this appeal, against the ORDER :of acquittal, the first question that arises for determination is as to whether a complaint can be lodged by a person who has no interest in the property, which has been the subject matter of criminal breach of trust. 2. The relevant facts leading to filing of this appeal are that there was a proceeding under Section 144 of the Code of Criminal Procedure between the appellant and one Dinanath Sah with respect to some paddy standing in the field. The paddy was harvested and according to the appellant it was entrusted by the police to the respondent. The proceeding under Section 144 was dropped by the Sub-divisional Magistrate vide his ORDER :dated the 6th of February, 1964. It was observed in that ORDER :that the party should get their claim decided in the Civil Court. Subsequently, on the 10th of March, 1965 a joint petition was filed on behalf of the appellant and Dinanath Sah, parties to the 144 proceeding before the Sub-divisional Magistrate, Arrah, praying that the price of the paddy (13½ maunds) which was entrusted to the respondent by the police, should be given to the party entitled to it. The Sub-divisional Magistrate, Arrah by his ORDER :dated the 10th of March, 1965 held that neither of the two parties could satisfy him as to who was entitled to receive the police of the paddy. In the circumstance, he passed an ORDER :directing the sale money to be deposited in the treasury under intimation to the court. The prosecution alleges that in spite of this direction the sale proceeds were not deposited in the treasury and as such the respondent is guilty of an offence under Section 406 of the Indian Penal Code. Accordingly, a complaint was lodged on the 17th of July, 1965 before the Sub-divisional Magistrate, Arrah. The appellant was examined on solemn affirmation and the Sub-divisional Magistrate took cognizance of the offence on the same day and transferred the case for disposal to the local police for inquiry. Ultimately, the case came to the file of Shri Sheo Lakhan Singh, Honorary Magistrate, Arrah. 3. The defence case was that he is innocent arid has been falsely implicated. There was no entrustment of paddy and he was not directed to deposit, as alleged by the prosecution. 4. Ultimately, the case came to the file of Shri Sheo Lakhan Singh, Honorary Magistrate, Arrah. 3. The defence case was that he is innocent arid has been falsely implicated. There was no entrustment of paddy and he was not directed to deposit, as alleged by the prosecution. 4. The trial court came to the conclusion that the land from which the paddy was harvested did not belong to the appellant. With regard to entrustment he held in favour of the prosecution. After arriving at the aforesaid findings he took the view that since the appellant had no interest in the land from which the paddy was harvested, he could not file a case against the respondent. He also said that as the appellant had no interest in the paddy he was not competent to file the case. He accordingly held that the prosecution has failed to prove its case and acquitted the accused. The appellant came to this court and obtained special leave under Section 417(3) of the Code of Criminal Procedure 1898 and hence the appeal. 5. Mr. Ramji Sharan appearing for the appellant has submitted that the view taken by the trial court with regard to the competency of the appellant to file the case is not correct. He is right 'Complaint' has been defined under Section 4(h) of the Code of Criminal Procedure 1898 which reads thus: "4(h) "Complaint" means the allegation made orally or in writing to a Magistrate, with a view to his taking action, under this Code, that some person, whether known or unknown, has committed an offence but it does not include the report of a police-officer." A perusal of the definition of "complaint" which I have quoted above, clearly indicates that there can be no doubt that a complaint may be made by any person who knows a bout the commission of the occurrence and not necessary by the injured party. In my opinion, there is nothing in the definition of the "complaint" which requires it to be made by the person aggrieved. The same view has been taken in (1) Todar Mal and another V. Emperor (32 Cr. L. J. 1931, 309) and (2) Basirulla V. Asadulla and another (A.I.R. 1969 Calcutta 639). I may also add that the only exception to this general rule is provided in Section 195(1) of the Code of Criminal Procedure 1898. 6. The same view has been taken in (1) Todar Mal and another V. Emperor (32 Cr. L. J. 1931, 309) and (2) Basirulla V. Asadulla and another (A.I.R. 1969 Calcutta 639). I may also add that the only exception to this general rule is provided in Section 195(1) of the Code of Criminal Procedure 1898. 6. Learned counsel appearing for the respondent submitted that the findings with regard to entrustment and direction by the court to deposit the sale proceeds in the treasury is against the weight of evidence. To me it appears that so far the finding with regard to entrustment is concerned, it has been correctly recorded. It is true that the Sub Inspector of Police, who entrusted the paddy to the respondent has not been examined, but the entrustment was made in presence of other persons including P.Ws. 1 to 5, who have proved the prosecution version regarding entrustment. P.Ws. Nos. 2 and 3, who in their examination-in-chief have spoken about entrustment has not been cross-examined at all on this point. I do not think that the finding with regard to entrustment can be justifiedly interfered with by me. With regard to the direction by the court to the respondent to deposit the sale proceeds in the treasury, I find there is absolutely no evidence P.W. 1 has said that an ORDER :was sent to the respondent asking him to deposit the money. He does not say that this ORDER :was received by the respondent. The prosecution could very well have proved the communication of the ORDER :, as alleged, by producing the ORDER :sheet of the case which has not been done so. A perusal of Section 405 of the Indian Penal Code, defining criminal breach of trust, will show that there must be misappropriation or conversions to his own use or use in violation of any legal direction. Now in this case I have held above that there was entrustment and the entrustment was to continue until further ORDER :s. The prosecution in my opinion has not been able to prove that there was any legal direction communicated to him, as alleged, to deposit the sale proceeds in the treasury. In that view of the matter, I think the respondent cannot be convicted of the offence under Section 406 of the Indian Penal Code. 7. In the result, therefore, the appeal fails and is dismissed. In that view of the matter, I think the respondent cannot be convicted of the offence under Section 406 of the Indian Penal Code. 7. In the result, therefore, the appeal fails and is dismissed. Appeal dismissed.