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2004 DIGILAW 891 (JHR)

AMAR TEKRIWAL v. STATE OF jharkhand

2004-08-27

M.Y.EQBAL

body2004
Judgment : ( 1 ) THIS revision application under Sections 397/401, Cr. P. C. is directed against the order dated 14-7-2003 passed by Judicial Magistrate, First Class, Dumka in P. C. R. Case No. 198 of 1999 whereby petition for discharge filed by the petitioner has been rejected. ( 2 ) THE aforesaid criminal case arose out of a complaint petition filed by Opposite party No. 2 alleging inter alia that the petitioner negotiated with the complainant for transporting 12,00 litres of Kerosene oil from ioc depot Bhagalpur to his business premises at Pathargama on payment of rs. 1, 150/- as per the agreement. The complainant got loaded kerosene oil in his tank lorry from Depot for delivery to the destination. The consignment reached the business premises of the petitioner at Pathargama on 25-8-1998 and the consignment of kerosene oil was being unloaded inside the business premises of the petitioner but during the course of unloading the accused and his staff suddenly stop unloading process on account of a surprise raid conducted by the officials of the district administration. It is alleged that the petitioner and his staff fled away for fear of arrest and on account of unloading of the consignment the tank lorry of the complainant remained inside the business premises of the petitioner from 25-8-1998 to 7-10-1998 and the accused intentionally and dishonestly did not get the consignment completely unloaded and illegally detained the tank lorry putting him in financial loss. The complainant said to have made several request to the petitioner to make good of loss by making payment but despite assurance the loss was not compensated by the petitioner. On the basis of such allegation made in the complaint, cognizance was taken under Section 406, IPC. ( 3 ) I have heard Mr. A. K. Kashyap learned counsel for the petitioner and Mr. S. P. Jha learned counsel appearing for the opposite parties. ( 4 ) FROM perusal of the order it appears that the Magistrate took the view that the accused has dishonestly used the tanker of the complainant in violation of direction of law prescribing the mode in which the trust was to be discharged as per the contract. The Magistrate, therefore, held that there is ground for presuming that the accused has committed offence of criminal breach of trust. Perhaps the Magistrate has not correctly understood the provision of Section 406, IPC. The Magistrate, therefore, held that there is ground for presuming that the accused has committed offence of criminal breach of trust. Perhaps the Magistrate has not correctly understood the provision of Section 406, IPC. ( 5 ) FROM bare perusal of the complaint, a copy of which has been annexed as Annexure-1 to the application, it is evident that the case of the complainant simply is that by virtue of an agreement the complainant agreed to transport the kerosene oil of the petitioner from IOC Depot, Bhagalpur to his business premises at Pathargama on payment of freight charge of Rs. 1,150/ -. As per the agreement the kerosene oil was loaded in the tank lorry and while the kerosene oil was being unloaded there was a surprise inspection of the premises of the petitioner by the District Administration. Because of inspection, petitioner alleged to have fled away and the tanker remain unloaded there for three days. The complainant, therefore, simply alleged that because of unloading of kerosene oil the tank lorry remain inside the business premises of the petitioner from 25-8-1998 to 7-10-1998 and, therefore, the complainant sustained a loss of Rs. 33,900/ -. The complainant in his complaint gave the detail of expenses incurred by him i. e. travelling expenses by car from Dumka to godda, cost of petrol, Court expenses including lawyers fee, detention charges, salary paid to the driver, staff expenses etc. and there is no ingredient of criminal breach of trust in the complaint petition as contemplated under Section 406, IPC. ( 6 ) IN my view, therefore, it is a case of pure money claim by the complainant and, therefore, criminal prosecution under Section 406, ipc amounts to miscarriage of justice. ( 7 ) FOR the aforesaid reason this application is allowed and the entire criminal prosecution being 198 of 1999 is quashed. Petition allowed. --- *** --- .