Halimuddin Ahmad v. Ashoka Cement Ltd. — 1975 DIGILAW 88 (PAT)

Judgment 1. This application in revision is directed against the order of the learned Sessions Judge, Patna dated the 30.08.1972 by which he directed further inquiry into the complaint filed by Ashoka Cement Ltd., opposite party. 2. The facts, in short, are that the general elections for the Bihar Legislative Assembly were to be held in February, 1967. The petitioner was a candidate for election to the Legislative Assembly. The petitioner being on cordial terms with the Company known as Ashoka Cement Ltd., Dalmianagar requested the latter to lend a jeep for electioneering purposes. The opposite party purchased a jeep bearing No. BRP 6446. It was registered in the name of one Pratap Singh, who was an employee of the Company and the Jeep was thereafter delivered to the petitioner along with the services of a driver. At the time of taking delivery of the Jeep from the complainant Company, the petitioner was accompanied by a friend of his named Tajammul Hussain. The Jeep was delivered to the petitioner on 16-1-1967 at Patna. For obvious reasons the petitioner did not grant a receipt in token of having received the jeep, but it was granted by Tajammul Hussain at the instance of and in the presence of the petitioner. The allegation of the complainant is that the stipulation for the loan of the jeep was that after the elections were over, the petitioner would return the jeep in good condition to the complainant. The complainant has alleged that even after the elections were completed in February, 1967, the Jeep was not returned by the petitioner. Attempts were made to persuade the petitioner to return the jeep, but all efforts of the complainant went in vain. The complainant thus alleged that the petitioner had committed criminal breach of trust in regard to the jeep by not returning it as undertaken by the petitioner at the time of the delivery thereof. 3. A complaint in regard to the allegations mentioned above was filed before the Sub-divisional Magistrate, Patna on 7-3-1970. On the same date the complainant was examined on solemn affirmation and the complaint was dismissed with the one line observation that there was no proof that the jeep had been handed over to the accused. 3. A complaint in regard to the allegations mentioned above was filed before the Sub-divisional Magistrate, Patna on 7-3-1970. On the same date the complainant was examined on solemn affirmation and the complaint was dismissed with the one line observation that there was no proof that the jeep had been handed over to the accused. The complainant (opposite party) then filed an application before the Sessions Judge, Patna under Sec. 436 of the Code of Criminal Procedure, 1898, who allowed the application and directed further inquiry by his order of the 30th of August, 1972. The petitioner has, therefore, filed the present application for setting aside the order of the learned Sessions Judge. 4. Learned counsel for the petitioner has stated that prior to the filing of the complaint, the complainant had sent a registered notice on the 22nd of May, 1969 threatening legal action against the petitioner if the jeep was not returned. A reply to that registered notice was sent by the petitioner on the 30th of June, 1969 denying any liability in regard to the jeep and controverting the Companys claim. It appears that the stand of the petitioner was that he had not received any jeep from the complainant and that Tajammul Hussain was never his representative and that he had received the jeep from the President, Bihar Pradesh Congress Committee. 5. Learned Counsel for the petitioner has contended that no jeep was ever entrusted by the complainant to the petitioner. He submitted that there was no allegation in the complaint that the jeep had been given to the petitioner by the Company and, therefore, no offence had been committed by the petitioner. The submission of learned counsel for the petitioner is based upon the fact that no receipt was granted by the petitioner in token of having received the jeep. The position is undisputed that the receipt had been granted by Tajammul Hussain and not the petitioner, but that does not conclude the matter. The complainant has alleged that the petitioner and Tajammul Hussain had come together and that the petitioner had got a receipt granted by Tajammul Hussain. Learned Counsel for the petitioner contended that since the receipt had been granted by Tajammul Hussain, the jeep was given to him and not to the petitioner. I regret, I am unable, to accede to this submission. Learned Counsel for the petitioner contended that since the receipt had been granted by Tajammul Hussain, the jeep was given to him and not to the petitioner. I regret, I am unable, to accede to this submission. It has been clearly averred in the complaint as well as is the statement on solemn affirmation of the complainant that the petitioner had gone to take delivery of the jeep from the complainant. It has been also stated therein that the jeep was given to the petitioner and that Tajammul Hussain granted the receipt on behalf of the petitioner. These allegations, to my mind, clearly make out a case of entrustment of the jeep. The mere fact that the receipt was granted by Tajammul Hussain and not by the petitioner cannot imply that the jeep was given to Tajammul Hussain and not to the petitioner. It is not difficult to appreciate the circumstances in which the petitioner did not grant the receipt himself. Probably he was under the impression that granting a receipt himself would amount to a clear admission of adoption of corrupt practice in the election and, therefore, he himself did not grant a receipt. In my view, the submission of learned counsel for the petitioner that there was no allegation in the complaint that, the jeep had been entrusted to the petitioner is unfounded. This submission of learned Counsel, therefore, must be rejected. 6. It was also contended that in coming to the conclusion whether a prima facie case had been made out against the petitioner or not, the learned Judge should have taken into account the reply by the petitioner in response to the registered notice given by the complainant. There are difficulties in accepting this submission. The first hurdle in the way of the petitioner is that the defence of the petitioner cannot be considered while considering the question whether a prima facie case had been made out or not. The reply sent by the petitioner denying his criminal liability was his defence which will be considered at the time of trial. It is well settled that the test to be applied while considering whether the accused should be summoned or not is, whether there is sufficient ground for proceeding against the petitioner. That sufficiency has to be judged from the complaint, the solemn affirmation and the evidence, if any, on the record. It is well settled that the test to be applied while considering whether the accused should be summoned or not is, whether there is sufficient ground for proceeding against the petitioner. That sufficiency has to be judged from the complaint, the solemn affirmation and the evidence, if any, on the record. The defence of the accused is not a material which has to be considered in the matter, of taking cognizance or issuing processes against an accused. The reply of the petitioner, therefore, could not have been juxtaposed to the complaint. The second hurdle in accepting this submission of learned counsel for the petitioner is that the reply of the petitioner to the registered notice was neither before the Sub-Divisional Magistrate nor before this Court. The so called reply of the petitioner referred to in paragraph 4 of the application before this Court could not have been taken into account while ordering further inquiry. This submission, therefore, of learned counsel for the petitioner that the learned Judge in ordering further inquiry should have taken into account the reply of the petitioner is not worthy of acceptance. 7. Learned Counsel for the petitioner then contended that the Sessions Judge erred in law in applying his mind to a letter dated the 18th of January, 1967 alleged to have been written by the petitioner to the complainant to show that the jeep in question had been entrusted by the complainant to the petitioner for a specific purpose. It was contended that the letter not having been mentioned in the complaint, the learned Judge had no jurisdiction to look into it. I am afraid, the submission of learned Counsel for the petitioner is devoid of any substance. A complainant is not required to set out in the complaint all the evidence in his possession. A complaint is only an allegation of facts which constitute an offence with a view to summoning the accused for trial. It is, therefore, not necessary for a complainant to set out in a complaint all the evidence in his possession. The non-mentioning of the letter dated the 18th of January, 1967 and other materials in the possession of the complainant cannot prevent a Court from satisfying itself as to whether a prima facie case had been made out or not. It is, therefore, not necessary for a complainant to set out in a complaint all the evidence in his possession. The non-mentioning of the letter dated the 18th of January, 1967 and other materials in the possession of the complainant cannot prevent a Court from satisfying itself as to whether a prima facie case had been made out or not. In fact, on the averments made in the petition of complaint the learned Magistrate should have called upon the complainant to produce all evidence in his possession to prove that the jeep had been entrusted by him with the petitioner. The observation of the learned Magistrate that there was no, proof that jeep No. BRP 6446 was handed aver to, the accused is patently perverse. In order to satisfy himself that there was some material in support of the prosecution allegations, learned Judge was quite justified in looking into the letter of the 18th of January, 67 alleged to have been written by the petitioner. Upon a consideration of the letter of the 18th of January, 1967, which was produced before this court as well, any Court would have come to the conclusion to which the learned Sessions Judge had arrived. The submission of learned Counsel for the petitioner, therefore, in this behalf must be rejected. 8. Learned Counsel far the petitioner lastly contended that even if the jeep in question had been entrusted with the petitioner, the non-return thereof would only entail a civil liability, being a mere breach of contract and not one of criminal breach of trust. I regret, I cannot accede to this submission. Every case of criminal breach of trust is also a case of civil liability. Reference may be made to the case of Jaswant Rai Manilal Akhany V/s. The State of Bombay, AIR 1956 SC 575 : (1956 Cri LJ 1116) where it was laid down that the same set of facts may give rise bath to a civil liability and a criminal prosecution. The question to be seen is whether it was a case of mere breach of contract or a case of criminal breach of trust. In every case of criminal breach of trust a breach of contract is implicit. The determinant factor in judging whether a case is one of criminal breach of trust or a criminal breach of contract is whether the person proceeded against had acted dishonestly. In every case of criminal breach of trust a breach of contract is implicit. The determinant factor in judging whether a case is one of criminal breach of trust or a criminal breach of contract is whether the person proceeded against had acted dishonestly. Dishonestly has been defined in Sec.24 of the Indian Penal Code as an act done with the intention of causing wrongful gain to one person or wrongful loss to another person. In the instant case, if the allegations made by the complainant are accepted as true, there can be no doubt that the petitioner obtained wrongful gain to himself and caused wrongful loss to the complainant. In that view of the matter, prima facie, a case of criminal breach of trust does seem to have been made out. At the point of repetition, I would warn the lower court which may be in seisin of the case, against taking any of the observations of this Court or of the Sessions Judge as being a conclusive finding. The observations have been made merely far the purpose of judging whether there was a prima facie case or not and are not concluded findings. The submission of learned counsel for the petitioner, therefore, that it was not a case of criminal breach of trust is unfounded. 9. Learned Counsel for the petitioner placed reliance an the case of Kamakhya Narain Singh V/s. Ram Lakhan Singh, (1970 BLJR 571) for showing that the present case also is a case of mere breach of contract. The case referred to by learned counsel for the petitioner was decided upon its own facts and is clearly distinguishable from the present case. In that case the advance had been made to the Minister for journey abroad with stipulation to redeem the debt subsequently. The sum advanced to the accused in that case could not be said to have been entrusted with the accused for the simple reason that the money was his and surely the debtor was not expected the return the same coin as he had received from the State coffer and, therefore, it was clearly a case of civil liability to be realised through a civil process. The authority relied upon by learned counsel for the petitioner does not support him in any manner. The authority relied upon by learned counsel for the petitioner does not support him in any manner. The other case of State of Gujarat V/s. Jaswant Lal Nathalal, AIR 1968 SC 700 : (1968 Cri LJ 803) relied upon by learned counsel for the petitioner also does not support the petitioners contention in any manner. That was a case where cement had been sell to a contractor by Government for construction work. It was stated therein that the expression entrustment carried with it the implication that the person handing over any property and on whose behalf the property had been handed over to another continues to be its owner. The person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. It was, therefore, held an the facts of that case that the acquittal of the contractor was well merited, since it was a case of sale of cement by Government to a contractor. Government did not retain its ownership in the cement. After the cement had been sold to the contractor, the goods become his and, therefore, it was not a case of entrustment. The facts are entirely different in the present case. The jeep was registered in the name of the Company and all the time remained registered as such. According to the averment in the complaint the complainant always retained title to the jeep in question and it was never had transferred to the petitioner. The title to the property in the goods, namely, the jeep always remained with the company and never with the petitioner. Therefore, the decision of the Supreme Court cannot help the petitioner many manner. 10. For the reasons, stated above, I find no merit in his application and it is accordingly dismissed.