C. K. Sreedharan v. State Of Kerala — 1999 DIGILAW 21 (KER)

Judgment :- The petitioner in the above Crl. R.P. and Crl. M.C. is the same person. He is the accused in C.C. No. 188 of 1994 pending before the Judicial First Class Magistrate's Court, Mavelikkara. 2. Crl. R.P. No. 770 of 1998 is filed by the petitioner challenging the order dated 7-10-1998 passed by the Judicial First Class Magistrate, Mavelikara in C.M.P. No. 8982/98 filed by him under S. 239, Cr.P.C. to discharge him, dismissing the petition. Crl. M.C. No. 5694 of 1998 is filed by the petitioner to quash the order dated 23-10-1998 in C.M.P. No. 10517/98 passed by the Judicial First Class Magistrate, Mavelikara dismissing the application filed by him under S. 468(2)(c) read with S. 469(1)(b), Cr.P.C. to acquit him in the case since the charge-sheet is filed against him after the expiry of the period of limitation. Since the petitioner has filed the above Crl. R.P. and Cr. M.C. in respect of the very same case pending before the lower Court, they are heard and disposed of by this common order. 3. On the basis of the complaint laid by the Assistant Engineer of KIP (RB) section on 20-7-1989 the Nooranad Police registered a case against the petitioner in Crime No. 178/89 alleging offence punishable under S. 406, IPC. The allegation is that the petitioner herein had executed an agreement with the Superintending Engineer, KAP R. B. Circle, Kottarakara on 4-11-1985 with regard to the Kurathikadu KIP RBC formation from chainage 0 to 6800 meters including CD works and while executing the work during the period from 20-5-1989 to 11-7-1989 the petitioner misappropriated certain departmental materials supplied to him for the execution of the work to the value of Rs. 3.50 lakhs and thereby he has committed the offence punishable under S. 406, I.P.C. After investigation the Nooranand Police laid charge-sheet against the petitioner which was taken on file as C.C. No. 188/94 by the Judicial First Class Magistrate, Mavelikara. 4. The petitioner had filed Crl. 3.50 lakhs and thereby he has committed the offence punishable under S. 406, I.P.C. After investigation the Nooranand Police laid charge-sheet against the petitioner which was taken on file as C.C. No. 188/94 by the Judicial First Class Magistrate, Mavelikara. 4. The petitioner had filed Crl. M.C. No. 1035 of 1995 before this Court to quash the entire proceedings in C.C. No. 188/94 and this Court disposed of that petition giving liberty to the petitioner to urge his contentions before the lower Court including the plea of discharge under S. 239, Cr.P.C. Accordingly the petitioner filed C.M.P. No. 8982/98 before the lower Court seeking discharge under S. 239, Cr.P.C. and that petition was dismissed by the learned Magistrate by finding that the documents filed by the prosecution show that there is prima facie case against the petitioner and the contentions raised by him are to be decided on merits after taking evidence by the order impugned in Crl. R.P. No. 770 of 1998. Thereafter while the above Crl. R.P. filed by the petitioner was pending before this Court the petitioner has filed C.M.P. No. 10517/98 before the lower Court to acquit him on the ground that the charge-sheet is filed after the expiry of the period of limitation and therefore the entire proceedings are hit by S. 468(2)(c) of Cr.P.C. and as such the Court is barred from taking cognizance of this case. That petition was dismissed by the lower Court by the order impugned in Crl. M.C. No. 5694/98. 5. The petitioner has contended that absolutely no ingredients of the offence punishable under S. 406, I.P.C. is brought out in this case and if at all there is a civil dispute between the petitioner and the respondents. Therefore the entire prosecution launched against him is liable to be quashed. 6. M.C. No. 5694/98. 5. The petitioner has contended that absolutely no ingredients of the offence punishable under S. 406, I.P.C. is brought out in this case and if at all there is a civil dispute between the petitioner and the respondents. Therefore the entire prosecution launched against him is liable to be quashed. 6. The contention of the petitioner that he had entered into another agreement with the respondents with regard to the execution of another work in the same project a similar complaint was filed against the petitioner regarding that agreement also alleging similar offence which was registered by the Mavelikara Police in Crime No. 177/89 and the same was referred by the police as mistake of fact after investigation and vigilance enquiry conducted regarding that case also arrived at the very same conclusion and therefore the very same conclusion should have been arrived at in this case by the police is of no substance. Merely because of the fact that a complaint filed by the first respondent against the petitioner in one case was referred by the police as mistake of fact after investigation is no ground to refer another case registered against the petitioner in respect of some other sets of facts though similar to the earlier, if the complaint is found to be true and the investigation revealed the offence alleged against the petitioner. 7. The petitioner has vehemently contended that no offence under S. 406, IPC is made out against him. According to the petitioner as per Cl. 17 of the terms of the agreement if any material is found to be surplus with the petitioner at the time of measurement the value of the same will be credited in the final bill to be drawn by the department and if there is any deficit of the material value of the same will be debited against the final bill of the petitioner at double the rate of such materials as issued or at the market price with sales tax and additional sales tax. Therefore according to the petitioner the supply of materials to the petitioners by the department in this case partake the incidents of sale and not entrustment as envisaged under S. 406, I.P.C. Hence in view of the fact that the entrustment of materials in this case to the petitioner by the Department does not attract the ingredients of 406, I.P.C., the accusation against him alleging offence punishable under S. 406, IPC is absolutely unsustainable and therefore he should be discharged. 8. Counsel for the petitioner relied upon several decisions including the decisions reported in C. M. Narayan v. State of Travancore-Cohin, AIR 1953 SC 478 : (1954 Cri LJ 102), Ajoy Kumar v. G. M. Wadwani, AIR 1965 Tripura 36 : (1965 (2) Cri LJ 418), Mafizul Islam Mia v. K. P. Sinha, AIR 1968 Tripura 36 : (1968 Cri LJ 1120), State of Gujarat v. Jaswantlal Nathalal, AIR 1968 SC 700 : (1968 Cri LJ 803) and Bal Kishan Das v. P. C. Nayar, AIR 1991 SC 1531 : (1991 Cri LJ 1837). The principles laid down in these decisions to the effect that in order to constitute the offence of criminal breach of trust it is essential that the prosecution must establish that the accused was entrusted with some property or with any dominion over the property is well established and cannot be disputed. But those decisions are not helpful to the petitioner in this case. In those decisions there were materials on record to show that the articles given by the department to the contractor did not constitute entrustment in order to constitute an offence of breach of trust the Indian Penal Code and the articles supplied had the character of sale rather than entrustment in those cases, it was held that the ingredients of the offence of breach of trust are not involved in those cases. But in this case the recitals made in the agreement entered into between the petitioner and the respondents, a copy of which is produced by the petitioner in this case along with Crl. M.P. No. 5006 of 1998, established that the entrustment of materials to the petitioner by the Department in this case as stipulated in para 17 of the agreement found at page GC-5 do not suggest any of the characteristics of sale of the property. M.P. No. 5006 of 1998, established that the entrustment of materials to the petitioner by the Department in this case as stipulated in para 17 of the agreement found at page GC-5 do not suggest any of the characteristics of sale of the property. It is stated therein that : "Wherever materials issued to the contractor are in excess of the requirements, the contractor shall return such surplus materials to the place of issue at his cost. The materials returned by the Contractor shall be credited to him at the rates at which they were originally issued less the value of any deterioration on damage which may have been caused to the said materials while in the custody of the Contractor. On completion of the work, if the Contractor fails to return the surplus materials, the Executive Engineer in addition to any other liability which the Contractor will incur as a result of his failure to return these materials by written notice to the Contractor may charge him for such surplus materials not returned, at double the issue rate." From the above provision it is clear that there is only entrustment of the materials to the petitioner which he is liable to account to the department at the time of completion of the work or termination of the contract. There is no stipulation of payment of sales tax etc. by the petitioner to the Government for the materials supplied as seen in the reported cases relied upon by the petitioner so as to attract the characteristics of sale. Merely because of the fact that the agreement provides right to the respondents to realise double the value of the materials found short with the petitioner the entrustment will not become a sale and it will only means the penalty provided for the failure of the return of the entrusted materials. Therefore in view of the fact that the terms of the contract involved in this case clearly established that the department materials are entrusted to the petitioner so as to attract the offence of breach of trust punishable under S. 406, I.P.C., the contention raised by the petitioner that the facts and circumstances of the case and the materials on record do not disclose even prima facie the offence punishable under S. 406, IPC alleged against him is not sustainable. The fact that another case is instituted by the respondents against one Krishnan Nair alleging offence punishable under S. 378, IPC with regard to certain materials alleged to have been committed in breach of trust by the petitioner herein is no ground for the petitioner to seek discharge in this case on the ground that no case is made out against him. 9. The fact that the provisions of the agreement contain a clause for arbitration and respondents had resorted to arbitration and the arbitration proceedings are pending against him is also no ground to discharge the petitioner in this case. Further the fact that a civil remedy is available to the respondents to realise the amount due from the petitioner to the respondents in respect of which breach of trust is alleged to have been committed by the petitioner in this case will not in any way affect the right of the respondents to prosecute the petitioner for the criminal liability of breach of trust. 10. Under such circumstances it is clear that the learned Magistrate is perfectly justified in dismissing C.M.P. No. 8982/89 filed by the petitioner to discharge him under S. 239, IPC since the contentions raised by the petitioner are matters of evidence during the trial of this case. Hence the order passed by the learned Magistrate has to be upheld. 11. Petitioner has contended that the lower Court is barred from taking cognizance of the offence in this case under S. 468(2)(c) of Cr.P.C. since the charge is laid by the Investigating Officer against the petitioner after the expiry of the period of limitation. The petitioner has also contended that the respondents have filed the complaint before the police on 20-5-1989 and after completing investigation charge is laid only on 24-8-1993 and the lower Court took cognizance of the Offence only on 3-3-1994. Therefore according to the petitioner the charge is laid in this case long after the expiry of the period of limitation as provided under S. 468(2)(c) of Cr.P.C. and hence the lower Court is precluded from taking cognizance of the offence especially when no petition is filed and any prayer is made to condone the delay in filing charge-sheet by the Investigating Officer in this case. This contention of the petitioner is also not sustainable. This contention of the petitioner is also not sustainable. It is within the discretion of the Court to condone the delay or not in filing the charge-sheet by the Investigating Officer. If the Court is satisfied on considering the facts and circumstances of the case that the delay has been properly explained, the Court can take cognizance of the offence after expiry of the period of limitation prescribed under S. 468(2)(c) of Cr.P.C. It is also well settled even if the delay in filing charge-sheet has not been explained, the Court will be justified in taking cognizance of the offence after the period of limitation, if the Court finds that it is necessary in the interests of justice of condone the delay. Therefore, the Court is competent to condone the delay in filing the charge-sheet if the Court is satisfied on the facts and circumstances of that particular case the delay should be condoned to meet the ends of justice. In this case the lower Court has taken cognizance of the offence alleged against the petitioner though the charge-sheet was filed by the Investigating Officer long after the expiry of the period of limitation prescribed under S. 468(2)(c) of Cr.P.C. 12. The lower Court found that the delay involved in filing charge-sheet in this case is liable to be condoned and dismissed the application filed by the petitioner to acquit him on the ground that the Court is barred from taking cognizance of the offence since charge-sheet is filed long after the expiry of the period of limitation prescribed under S. 468(2)(c) of Cr.P.C. Considering the facts and circumstances of the case I also find that the finding of the learned Magistrate that the delay involved in this case in laying charge-sheet by the Investigating Officer is liable to be condoned is well founded. There fore, I find absolutely no ground to interfere with the order passed by the learned Magistrate dismissing C.M.P. No. 10517/98 filed by the petitioner to acquit him in this case. In view of my finding that the orders passed by the learned Magistrate impugned by the petitioner in these cases are well founded and there is absolutely no ground to interfere with those orders, these Crl. R.P. and Crl. M.C. are dismissed confirming the impugned orders. Petition dismissed.