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1991 DIGILAW 79 (BOM)

Shyamrani v. State of Maharashtra

1991-02-07

R.G.SINDHAKAR

body1991
ORAL JUDGMENT R.G. Sindbkar, J. - This petition has been filed under Section 482 of Criminal Procedure Code, 1973 and Article 227 of the Constitution of India by the petitioner challenging the order of issue of process passed by the Judicial Magistrate first Class, Gondia in Criminal Case No. 197/88 on 26-10-1988. The process was issued on a complaint filed by Respondent No.2 M/s. Chunnilal Nanjibhai against the petitioner and Respondent No.3. It was the case of the complainant Respondent No.2 that the petitioner and Respondent No. 2 entered into a contract in the year 1986 under which the Respondent No.2 was to manufacture bidis and pack them and label them with the packing and the labelling material to be supplied by the petitioner. The case was that inspite of this contract, when the Respondent No.2 manufactured as many as over 5,00,000 bidis, the petitioner failed to supply the packing and labelling material to enable the Respondent No. 2 to despatch them to the destinations directed by the petitioner. He further alleged that instead of supplying the labelling and the packing material to the Respondent No.2, the petitioner supplied it to respondent No.3, who knowing full well the obligations of the petitioner under the contract towards respondent No.2 accepted the assignment. The Respondent No. 2's complaint was under Section 406 read with 34 of Indian Penal Code. 2. The learned Magistrate after recording the verification and perusing the copy of the Agreement entered into between the petitioner and Respondent No.2, issued process under Section 406 read with Section 34 of the Indian Penal Code. Aggrieved by this order, the petitioner approached the Sessions Judge, Bhandara by Criminal Revision Application No. 5/89. The learned Additional Sessions Judge by his order dated 8-3 -1990 dismissed the petition and directed the Parties to appear before the learned Magistrate and despatched the record and proceedings to that Court. It is this order of issue of process, confirmed by the Additional Sessions Judge that has been challenged in this petition under Section 482 of the Criminal Procedure Code and Article 227 of the Constitution of India. . 4. I have heard the learned advocates appearing on behalf of the parties. 5. It is this order of issue of process, confirmed by the Additional Sessions Judge that has been challenged in this petition under Section 482 of the Criminal Procedure Code and Article 227 of the Constitution of India. . 4. I have heard the learned advocates appearing on behalf of the parties. 5. It was urged on behalf of the petitioner that this order of issue of process deserves to be struck down on the ground that the complainant had not made out a prima facie case to justify the issue of process. In this connection, he relied upon a decision in the case of Smt. Nagawwa v. Veeranna 1. The four tests laid down for quashing the issue of process are enumerated in this decision. The first test is, where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken on their face value make out absolutely no case against the accused or the complainant, does not disclose the essential ingredients of an offence which is alleged against the accused. It is this first test that counsel for the petitioner submits, is attracted in this particular case. Here in this case, the allegation of the complainant is that, the petitioner who was earlier manufacturing bidis, entered into a contract with the Respondent No.2 in the year 1986, Under this contract, the Respondent No.2 was to manufacture bidis and after they are packed, and labelled with the packing and the labelling material to be supplied by the petitioner, they were to be despatched to the customers of the petitioner. It was the case of the complainant that though he manufactured bidis as per the term of the contract, the petitioner failed to supply the packing and the labelling material and therefore, he could not dispose of over 5,00,000 bidis manufactured by him as per the contract. The question that arises for consideration, as has been urged on behalf of the petitioner is, whether there was any case of entrustment of any property or any dominion over property alleged in the complaint. The question that arises for consideration, as has been urged on behalf of the petitioner is, whether there was any case of entrustment of any property or any dominion over property alleged in the complaint. Section 405 of the Indian Penal Code defines Criminal Breach of Trust: "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust". The first essential ingredient of section 405, therefore, is that there must have been an 'entrustment' of property or entrustment of any dominion over property to petitioner under Section 405 punishable under Section 406 of Indian Penal Code. It is this ingredient according to the learned counsel for the petitioner that is lacking in this particular case. 6. In this behalf, it was urged on behalf of the Respondent No.2 that the property that was entrusted was the labels and packing material. He tried to rely upon the agreement entered into between the parties to show that it was this material packing and labelling that was entrusted by the Respondent No.2 to the petitioner. It is a fact that in the complaint which the complainant has filed, in para 5 what has been mentioned is that accused No.2 had the dominion over the said bidis (property). It is difficult to see how the complainant makes out a case that there was an "entrustment" of the packing and labelling material to the applicant by Respondent No.2. Even after reading the agreement entered into between the applicant and the Respondent No.2. It is difficult to see how the complainant makes out a case that there was an "entrustment" of the packing and labelling material to the applicant by Respondent No.2. Even after reading the agreement entered into between the applicant and the Respondent No.2. I am unable to come to the conclusion that it is making out a case of entrustment of the packing and the labelling material and urged on behalf of the Respondent No. Z. It appears to me, that it was a pure contract entered into between the parties under which the Respondent No.2 was to manufacture bidis and pack them and lable them with the packing and the labelling material supplied i)y the applicant and despatch it to the customers of the applicant. Question of entrusting any property by either of them docs not appear to be borne out by the contract which had been produced. If therefore there is no "entrustment" of any property and the "entrustment" of any dominion over property, Section 405 of the Indian Penal Code would not be attracted. It is not the case of the complainant that any other offence has been committed by the petitioner. 7. On behalf of the respondent, it was then urged that this would not be a fit case to attract the provisions of Section 482 of Criminal Procedure Code and Article 227 of the Constitution of India. He relied upon the 'decision in the case of Dhanlaxmi v. Prasanna Kumar 2. That was a case where the Supreme Court found that the process was quashed by the High Court under Section 482 on the ground that no case for conviction was made out. A wrong test, according to the Supreme Court, having been applied, the order was liable to be struck down and has been accordingly struck down. Facts in this case are distinct. Here the Court is not called upon to find out whether there was a case for conviction under Section 406 of Indian Penal Code and prayer for quashing is made. Here the argument advanced is that, no case- has been made out, even prima facie, under Section 405 of Indian Penal Code. It was also submitted that one of the essential ingredients of Section 405 is not spelt out from the complaint and the material produced, and therefore, prayer for quashing is made. Here the argument advanced is that, no case- has been made out, even prima facie, under Section 405 of Indian Penal Code. It was also submitted that one of the essential ingredients of Section 405 is not spelt out from the complaint and the material produced, and therefore, prayer for quashing is made. With respect, therefore, I find that the ruling cited on behalf of the Respondent No.2 is not attracted. 8. The learned Additional Sessions Judge bas not, in my view, applied the correct test that was required, to be applied in such cases. He observed, "the complainant had manufactured the bidis keeping trust upon accused Shyamrani. She was responsible to purchase or cause it to be purchased under the legal contract, but she breached the contract". This was in my opinion not a correct approach. The common man's notion of breach of trust appears to have been imported by the Additional Sessions Judge for consideration of the matter before him. In view of the observations above, I find that there was no case of entrustment even prima facie, made out at the stage of issuing process, and therefore, the process ought not to have been issued so far as the petitioner is concerned, and that order is liable to be quashed. 9. Though respondent No. 3 has not approached this Court for quashing the order of issuing of process against him, I find that the same is also liable to be quashed in the facts and circumstances of the case. That all that he has done even assuming the case of the complainant to be true, is to enter into a contract with the petitioner for the manufacture of bidis, as has been done by the Respondent No.2. There was no prohibition even in the contract entered into between the petitioner and the Respondent No.2 for petitioner entrusting manufacturing bidis to persons other than the respondent No.2. If in the circumstaners, Respondent No.3 was approached by the petitioner and asked to manufacture bidis, that she supplied packing and labelling material to him as was done to the Respondent No.2, I fail to see how Respondent No.3 can be said to have committed an offence of breach of trust. There was no entrustment of any property or entrustment of any dominion over the property by Respondent No.2 to Respondent No.3. There was no entrustment of any property or entrustment of any dominion over the property by Respondent No.2 to Respondent No.3. No question, therefore, of breach of trust by him ever arose. No question of sharing the common intention with the petitioner also arose in this particular case. The learned Session Judge's observation in this behalf is also, in my view, not justified. He states, "The accused No. 1 also deliberately and intentionally accompliced accused Shyamrani with a knowledge about her deals with the complainant". Here again he has fallen in error which deserves to be corrected. Process as against him is also quashed. In the result, petition is allowed. The order of issue of process passed by the learned Magistrate confirmed in revision by the learned Additional Sessions Judge is hereby quashed. Petition allowed. 1. A.I.R. 1976 S.C. 1947. 2. 1990 Mh. LJ. 32.