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2001 DIGILAW 202 (MAD)

V. N. Sonal v. Nagamanickam And Another

2001-02-19

A.D.V.REDDY

body2001
Judgment :- The revision petitioner/complainant has filed the revision petition aggrieved against the Judgment of acquittal passed by the learned Judicial Magistrate No. II, Erode, in C.C. No. 481/1993 dated 5-9-1995. The case in brief is as follows. Between 15-5-1989 and 16-8-1991 the accused/first respondent was supplied yarn by Kerala Spinners Limited at Erode and the accused should supply finished products. The accused had not returned finished products to the value of Rs. 9,58,817/- and has committed criminal breach of trust and hence, the second respondent filed a charge sheet against the first respondent/accused. PWs 1 to 8 were examined on the side of the prosecution. PW 1 was then working as Senior Manager in the Kerala Spinners Company Ltd. The Head Office of the Company was in Alleppy and branch office was at Erode. They have entered into an agreement with the accused under Exs. A1 and A2 and they have supplied yarn since 1989. Totally they have supplied about 8200 and odd kgs. of yarn and for which the accused has to supply the finished goods. There was balance of 15,218 Kgs. of yarn and after the demand and the complaint, 2015 kgs. of yarn was seized from the accused by the police on 18-4-1992. However, there was a balance of 13,202 kgs. of yarn and the value of the same is more than Rs. 9, lakhs. PWs. 2 and 3 were working as Supervisor and Accounts Officer in the branch at Erode. They were also examined to speak about the entrustment of yarn with the accused and also the deficit caused by the accused. PW 4 Sainathan was an auditor by profession and he had audited the stock and other accounts in the company and submitted a report under Ex. P. 10. The Subsequent reports are Exs. P. 11 and 12. P.W. 7 Inspectors of Police stated that thereafter receiving the complaint from PW 1 through Superintendent of Police, Erode, registered a case in Crime No. 552 of 1992 under Section 409, IPC. He also examined the witnesses and recorded their statements. After his transfer, PW 6 Rajadurai, Inspector of Police took up further investigation in the cage and after completing the investigation, filed the charge sheet against the accused. The accused was examined under Section 313 of the Code of Criminal Procedure and he denied the evidence. He also examined the witnesses and recorded their statements. After his transfer, PW 6 Rajadurai, Inspector of Police took up further investigation in the cage and after completing the investigation, filed the charge sheet against the accused. The accused was examined under Section 313 of the Code of Criminal Procedure and he denied the evidence. According to him, there was arrears of wages from the company and when he demanded the same through letter, the false complaint was laid against him. After hearing the parties, the learned Magistrate came to the conclusion that the accused has not committed an offence under Section 409, IPC and acquitted him and aggrieved against this, the present revision is filed. Heard the learned counsel of both sides. The point that arises for consideration is whether the order of acquittal passed by the Court below is proper and correct ? Point : The prosecution has come forward with a specific case that yarn was entrusted to the accused by Kerala Spinners Ltd. company at Erode and while returning the finished goods, the accused had not returned the finished goods for about 13202 kgs. of yarn worth Rs. 9 lakhs and odd. It is also stated that PWs 1 to 3 were also examined on the side of the prosecution to prove the entrustment of yarn to the accused and also about the supply of the finished products and the deficiency and other particulars. The burden is only upon the prosecution to show that a particular quantity of yarn was supplied and for which the accused is bound to supply a particular quantity of finished goods. There is no dispute that Exs. A1 and A2 agreements were entered into between the company and the accused relating to the nature of work. At best, this would only indicate that there was business transaction between the parties. A careful reading of the evidence of the prosecution witnesses only indicates that the prosecution failed to establish the entrustment of so much quantity of yarn and the accounting was also not done properly. In fact, PW 1 admitted in the course of evidence that various types of yarns would be supplied to the accused and in fact one kind of yarn was supplied to the accused through Kutti Sizing Mills at Thiruchengode. In fact, PW 1 admitted in the course of evidence that various types of yarns would be supplied to the accused and in fact one kind of yarn was supplied to the accused through Kutti Sizing Mills at Thiruchengode. It, therefore, follows that there was no direct entrustment of yarn in respect of one variety with the accused. None of them from Kutti Sizing Mills has been examined by the prosecution to show as to how much they have received yarn from the company and how much they have given to the accused. In the absence of any such positive evidence, I am of the view that the prosecution has, failed to establish whether the entire yarn had been entrusted with the accused. It is also admitted in the course of evidence of PW 1 that whenever yarn was entrusted, issue slip will be issued and for which, packing slip would be sent by the accused in token of acknowledgment. If all the issue slips are produced before the Court, then it is possible to come to the conclusion about the quantity of yarn supplied, but, curiously enough only few issue slips and packing slips have been marked in the case and in particular, only 57 issue slips have been filed as Ex. P3 series. Out of this, in one issue slips also, the name of another company is included. Considering the fact that all the issue slips have not been filed into the Court, it is yet another circumstance raising doubt about the prosecution case relating to the entrustment of entire quantity with the accused. It is also stated that there would be running account to show how much finished products were returned by the accused, but the same has not been filed into the Court. Unless the prosecution, is able to produce positive materials to prove the exact entrustment of the yarn with the accused, it is not possible to come to a definite conclusion whether the accused has committed any breach of trust. PW 1 also in the course of evidence admitted that there is a formula to find out if a particular quantity of yarn is supplied, a particular extent of finished products would be given, but this formula has also not been filed into the Court. PW 1 also in the course of evidence admitted that there is a formula to find out if a particular quantity of yarn is supplied, a particular extent of finished products would be given, but this formula has also not been filed into the Court. PW 1 also admitted that some of the finished products sent by the accused were also rejected on the ground of defect, but now how much on that account was rejected has also not been disclosed in the evidence and it has also not been found out in the investigation also. These lapses on the part of the investigation as well as in the course of evidence would go a long way to show that the accused would be entitled to benefit of doubt. At the same time, it is admitted that the accused sent a communication demanding arrears of wages and it is quite possible that a counterblast the company might have come forward with a complaint. Taking into consideration of the entire materials and also the inconsistency in the evidence of prosecution witnesses coupled with the non-production of various documents to prove the entrustment of entire quantity of yarn, the trial Court was constrained to come to a finding that the prosecution has not proved the charge. There is no grave miscarriage of justice and as there is no illegality or infirmity in the order, no interference is called for. Apart from that, the transaction between the parties mainly depends upon taking into accounts and, as such, the only remedy available to the company is to seek relief in the Civil suit. Hence, the point is answered accordingly. For the reasons stated above, the revision petition fails and is dismissed. Petition dismissed.