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2000 DIGILAW 418 (PNJ)

Prem Singh v. Sohan Lal

2000-04-18

V.S.AGGARWAL

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JUDGMENT V.S. Aggarwal, J. - The present revision petition has been preferred by Prem Singh (hereinafter described as "the petitioner") directed against the judgment of the learned Additional Sessions Judge, Patiala dated 14.1.1988. The learned Additional Sessions Judge had set aside the order passed by the Judicial Magistrate, Ist Class, Amloh dated 17.11.1987 and discharged the respondents. 2. The relevant facts are that petitioner Prem Singh had filed a criminal complaint against the respondents for the alleged offence punishable under Section 409 read with Section 34 of the Indian Penal Code. 3. It had been asserted that petitioner is an agriculturist. The respondents are partners of the firm M/s Siri Ram Sohan Lal Commission Agents. They are carrying on the business as Kacha Artiya in the Govt. Purchase Centre at Bugga Kalan. The petitioner sold 62 bags of rice weighing 43 Qtls 40 Kg. A memo was issued in favour of the petitioner. On 26.10.1984 the petitioner again sold 47 Qutls. 67 Kgs. of rice. After making certain deductions, some amounts even was paid to the petitioner. In case of the first sale, Rs. 5154/- and in the case of second sale Rs. 5110/- remained outstanding. 4. It is asserted that on 17.4.1985 the petitioner again sold 112 Qtls. and 38 Kg. of wheat. After making certain deductions, Rs. 17,381.08 was due to the petitioner. The respondents were stated to be under an obligation to pay the amount to the petitioner which they had not paid. It was contended that since the respondents have received and misappropriated the money, they are liable to be punished for the offence punishable under Section 409 read with Section 34 of the Indian Penal Code. 5. The learned Judicial Magistrate Ist Class, Amloh, on 17.11.1987 after recording the preliminary evidence concluded that there was sufficient and cogent unrebutted evidence against the respondents warranting their conviction and directed that charge should be framed against the respondents. 6. The respondents had preferred a revision petition. The learned Additional Sessions Judge, Patiala, on 14.1.1988 concluded that the matter is of civil nature. There was no entry which has been made in the account books of Prem Singh and, thus, the question of criminal breach of trust does not arise. The petitioner had never gone to the shop of the respondents to get the matter settled. The learned Additional Sessions Judge, Patiala, on 14.1.1988 concluded that the matter is of civil nature. There was no entry which has been made in the account books of Prem Singh and, thus, the question of criminal breach of trust does not arise. The petitioner had never gone to the shop of the respondents to get the matter settled. It was further held that as a routine in the business of the Commission Agent, the amount is advanced from time to time to the agriculturists as a loan and when crop is brought to the shop, the said amount is adjusted. In these circumstances, it could not be termed that there is criminal misappropriation. Accordingly, the revision petition was allowed. 7. Aggrieved by the same, present revision petition has been preferred. 8. Section 405 of the Indian Penal Code shorn of two explanations read as under :- "405. 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". 7. It is abundantly clear that while the accused had to be entrusted with property or dominion over the property, but dishonest misappropriation is a necessary ingredient. Section 24 of the Indian Penal Code defines the expression dishonestly occurring in different Sections of the Indian Penal Code including Section 405 of the Indian Penal Code. It reads as under :- " "Dishonestly" :- Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". 8. A bare reading of the definition "dishonestly" clearly shows that it need not always involve an element of fraud or deceit. Dishonestly in law at times would mean differently from dishonestly in commercial sense. Intention of causing wrongful gain to one person or wrongful loss to others is the necessary ingredient. In every case, dishonest intention need not be presumed. 9. Dishonestly in law at times would mean differently from dishonestly in commercial sense. Intention of causing wrongful gain to one person or wrongful loss to others is the necessary ingredient. In every case, dishonest intention need not be presumed. 9. As mentioned above, dishonest intention is the gist of the offence under Section 405 of the Indian Penal Code. If there is no dishonest intention, necessarily it will not be appropriate to draw the inference that Section 405 of the Indian Penal Code would be proved. 10. Reference with advantage can will be made to the decision of the Madras High Court in the case of Rex v. Krishnan, AIR 1940 Madras 329. In the cited case, it was held that it the agent retains certain amount and it is a basic matter of civil dispute, it cannot be held that there is a criminal misappropriation or criminal breach of trust. 11. Herein, the learned Additional Sessions Judge had rightly recorded that the respondents were the Commission Agents and they were under the obligation to pay for the price of the grains. But it was further held that it was a matter of accounting and civil Court was the proper forum. Even a civil suit and already been filed for the recovery of the amount. Once it was so and it was basically a question of accounting as to how much amount was due rather than of dishonest mis-appropriation, it cannot be termed that there was a criminal breach of trust. The necessary ingredients referred to above had not been proved. Thus, there is no ground to interfere in the impugned judgment of the learned Additional Sessions Judge, Patiala. For these reasons, the revision petition fails and is accordingly dismissed. Revision dismissed.