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1997 DIGILAW 25 (PAT)

Sahil Kumar Dean v. State Of Bihar

1997-01-13

S.K.CHATTOPADHYAYA

body1997
Judgment S.K.Chattopadhyaya, J. 1. The petitioner was appointed as Assistant Manager of Bihar State Food Corporation at Topchanchi and worked as such from 1.6.1994 to 15.10.1995. He has been made an accused in complaint case No. 6/96 for an offence under Sec. 409 of the Indian Penal Code. He has moved this Court in the present application for quashing the order dated 1.5.1996 by reason of which the learned Additional Chief Judicial Magistrate, Dhanbad has taken cognizance of the offence and has issued summons to the petitioner. 2. It appears that during his tenure as Assistant Manager, Food Corporation, a complaint was filed against him by the District Manager of Bihar State Food and Civil Supplies Corporation Ltd. alleging, inter alia, that ihe petitioner while acting as Assistant Godown Manager, misappropriated and embazzaled the sale proceeds of food grains worth Rs. 1, 21,406.18 paise of Topchanchi godown, during the period from 1.6.1994 to 15.10.995 and converted the said sale proceeds to his personal benefit. Further allegation is that the petitioner caused loss of foodgrains worth Rs. 2,59,923, 44 paise of the said godown which was the result of his wilful negligence, carelessness and mismanagement.According to the complainant, being the Assistant Godown Manager of Topchanchi Godown, the petitioner was entrusted with huge quantity of foodgrains worth several lacs of rupees and the foodgrains were kept in the said godown under his custody and the accused as custodian of he said foodgrains belonging to the Corporation was responsible for any loss or shortage of the foodgrains. 3. After being prima facie satisfied for proceeding under Sec. 409 of the Indian Penal Code against the accused, cognizance was taken by the learned Magistrate, as aforesaid. 4. Mr. P.S. Dayal, learned Sr. counsel appearing on behalf of the petitioner has strenuously urged that the allegation made in the complaint petition does not make out any case of criminal breach of trust inasmuch as loss sustained by the Corporation was due to negligence and carelessness of the petitioner and, as such, there was no criminal intention for which a case under Sec. 409 of the Penal Code could be registered against him. learned Counsel, drawing my attention to paras 15 and 16 of the complaint petition, has submitted that whatever loss was there, the same was due to negligence and mismanagement of the petitioner which may be a wilful negligence and care lessness and that may give rise to a departmental proceeding against the petitioner but definitely not a criminal case. According to him, it may be civil breach but cannot be said to be a criminal breach of trust attracting the provisions of the aforesaid Section of the Indian Penal Code. In support of his contention he has relied on two decisions reported in 1977 Cr LJ 654 and 1980 BBCJ 136 , 5. Mr. R.K. Choudhary appearing on behalf of the complainant-opposite party No. 2 strongly countering the argument of Mr. Dayal, has submitted that the complaint petition itself will show that the allegation against the petitioner was in two parts. Firstly, shortage of foodgrains of Rs. 1,21,906.18 paise was detected after verification of all relevant records and the petitioner could not account for the loss of the aforesaid foodgrains. This shortage, according to Mr. Choudhary, definitely establishes dishonest and intentional embezzlement and misappropriation of the sale proceeds of foodgrains of the aforesaid amount during the period when he was the Assistant Godown Manager of the said godown i.e. in between 1.6.1994 yo 15.10.1995. Secondly, the allegation made is about the loss of Rs. 2,59,923.44 paise and this loss was due to wilful negligence and carelessness of the petitioner and being the custodian of the said godown as well as the aforesaid foodgrains the petitioner must be held criminally liable for the misappropriation as well as loss sustained by the Corporation. On the a foresaid backgrounds Mr. Choudhary has contended that the High Court exercising its power under Sec. 482 Cr. P.C. cannot quash the criminal proceeding as well as the order taking cognizance at its initial stage. In support of his contention he has relied on the decisions of the Supreme Court rendered in 1996 (7) SCC 440 . 6. On the a foresaid backgrounds Mr. Choudhary has contended that the High Court exercising its power under Sec. 482 Cr. P.C. cannot quash the criminal proceeding as well as the order taking cognizance at its initial stage. In support of his contention he has relied on the decisions of the Supreme Court rendered in 1996 (7) SCC 440 . 6. It is now well settled that the ingredients of different offences under the Penal Code need not be proved only by direct allegations, they can be shown from the circumstances of a particular case that the intention of the accused was dishonest since the very inception or he developed such intention at some stage for his wrongful gain causing wrongful loss to the complainant. All the circumstances and the materials to prove such charge have to be collected during investigation and inquiry and ultimately they have to be produced before the Court at the stage of trial for a verdict as to whether the ingredients of offence in question have been established on behalf of the prosecution. While settling the said principle of law, the Apex Court in the case of Radhyshyam Khemka V/s. State of Bihar reported in -- has held that under Sec. 482 Cr. P.C. the High Court will not usurp the jurisdiction of the trial court by holding a parallel trial. 7. In the background of the aforesaid principles of law if the allegations made against the petitioner in the complaint petition are looked into it will clearly indicate that when the godown was inspected, shortage of foodgrains of certain amount was found which was further established by verification of relevant records of the godown. The petitioner was asked to explain such loss but he could not account for. This shortage of foodgrains caused loss to the Corporation and the petitioner having failed to satisfy the authority about the said loss, the complainant was of the opinion that the petitioner misappropriated the amount of Rs. 1,21,906.18 paise for his wrongful gain. Even accepting the argument of Mr. Dayal that the loss of foodgrains worth Rs. 2,59,923.44 paise was due wilful negligence and carelessness of the petitioner, it cannot be presumed at this stage that there was no criminal intention of the petitioner for causing loss to the Corporation. 1,21,906.18 paise for his wrongful gain. Even accepting the argument of Mr. Dayal that the loss of foodgrains worth Rs. 2,59,923.44 paise was due wilful negligence and carelessness of the petitioner, it cannot be presumed at this stage that there was no criminal intention of the petitioner for causing loss to the Corporation. Moreover, the complaint petition further discloses that by letter dated 11.7.1995 the petitioner filed an application before the complainant praying therein to relieve him from his post of Assistant Godown Manger of Topchanchi godown and by letter dated 14.7,1995 he was asked to handover charge of the said godown to one Sri Budhi Ram, A.G.M. but instead of handing over charge the petitioner closed the godown and absconded from 24.8.1995 to 31.1.1996. Reminders were sent to him by the complainant to hand over charge but when this request also failed, the Subdivisional Magistrate, Dhanbad was requested by the complainant on 4.9.1995 for deputation of an officer to break open the lock of the godown. On being requested the S.D.O. deputed the Circle Officer, Topchanchi as the Magistrate to break open the lock of the godown and accordingly the lock was broker open on 15.10.1995 and charge was handed over to Budhi Ram ultimately, Para 15 of the complaint petition clearly shows that the Circle Officer prepared an inventory of the foodgrains and detected shortage of huge quantity of food grains and for which the petitioner could not account. 8. All these circumstances, prima facie , establish the intention of the petitioner and it will be futile for the High Court in exercise of its jurisdiction under Sec. 482, Cr. P.C. to examine the mens area or the criminal intention of the petitioner at this stage. 9. In this connection I may refer to an unreported judgment of this Court in the case of Om Prakash Sah and other different petitioners V/s. State of Bihar, in Cr. Misc. case No. 605/9 (R) which was heard alongwith other Cr. Misc. cases and disposed of by a learned Single Judge of this Court on 8.5.995 dismissing all the quashing applications filed by those petitioners who were also Asstt. godown Managers of difference godowns of the Bihar State Food and Civil Supplies Ltd. I am in respectful agreement with the aforesaid decision of the learned Single Judge. 10. Misc. cases and disposed of by a learned Single Judge of this Court on 8.5.995 dismissing all the quashing applications filed by those petitioners who were also Asstt. godown Managers of difference godowns of the Bihar State Food and Civil Supplies Ltd. I am in respectful agreement with the aforesaid decision of the learned Single Judge. 10. The decision of Karnataka High Court reported in 1977 Cr LJ 654 relied upon by Mr. Dayal, in my considered opinion, is not applicable to the facts and circumstances of the present case inasmuch as the said decision was rendered after conviction of the appellant therein. Similarly, the case of Om Prakash Singhania, and Ors. (supra) is different from the facts and circumstances of the instant case. The learned Single Judge, considering the allegations made in the complaint petition in that case, came to a finding that it was only as case of non-payment of money at higher rate demanded by the complainant. His lordship was of the opinion that it was a case of mere breach of contract for which the complainant had further remedy by way of civil suit and, moreover, money suit had been brought by the complainant. The learned Judge was of the opinion that the complainant should not have taken recourse to criminal proceedings as criminal proceeding is merely a camouflage of a civil dispute. 11. On the contrary, in the case of Mustaque Ahmad, (supra) the Supreme Court depricated quashing by the High Court holding that "in spite of the fact that the complainant and the documents annexed thereto clearly made out a prima facie case for cheating, breach of trust and forgery, the High Court proceeded to consider the version of the respondents given out in their petition filed under Sec. 482, Cr. P.C. vis-a-vis that of the appellant and entered into the debatable area of deciding which of the versions was true a course wholly impermissible in view of the above-quoted observations in the case of Bhajan Lal." 12. Having given my/anious consideration to the facts and circumstances of this case, I am of the firm view that the High Court cannot exercise its inherent jurisdiction under Sec. 482, Cr. P.C. in the instant case for quashing the order taking cognizance. 13. In the result, I find no merit in this application which is, accordingly, dismissed.