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Madras High Court · body

2006 DIGILAW 637 (MAD)

Chellappan v. State by Sub-Inspector of Police

2006-03-07

S.SARDAR ZACKRIA HUSSAIN

body2006
Judgment :- Revision filed under Section 397 read with 401 of the Criminal Procedure Code against the judgment dated 24.4.2000 passed in C.C.No.4708 of 1995 on the file of the Additional Chief Metropolitan Magistrate, Egmore, Chennai, acquitting the accused A1 to A6 on all charges levelled against them and A7 to A9 under Section 381 I.P.C. This revision is filed by the defacto complainant against the acquittal of the accused A1 to A6 in respect of all the charges, viz., offences under Sections 120(B), 408, 381 and 420 I.P.C. and A7 to A9 for the offence under Section 381 I.P.C. on the file of the Additional Chief Metropolitan Magistrate, Egmore, Chennai, in C.C.No.4708 of 1995 as per judgment dated 24.4.2000. 2. As per the case of prosecution, P.W.1 R.Chellappan is the sole proprietor of the company ‘Numeric Engineers’ (hereinafter referred to as ‘P.W.1 Company’), whose main business was to manufacture and supply U.P.S. System (Un-Interrupted Power Supply System), which is an electronic equipment mainly used as power supply for computers and other communication equipments and it was having 32 offices and service centres in various places of India during the year 1993. The accused A-1 to A-9, after completing their Diploma Course, joined in the P.W.1 company as Trainee Engineers during the year 1987 to 1990 and after completion of the training period of one year, they were allotted to various Departments of the Company such as, production, Testing, Servicing, Marketing, R & D, etc. and later on, they were entrusted with individual responsibilities of their Department / Branches and the company properties like Secret Designs, PCB Layout, Costlier spares, R & D related materials, Sales documents, etc., placing them in Chennai, Madurai and Delhi Offices. It is further stated that from February 1993, all the accused had conspired together and committed theft of Electronic Circuits, formulas, costlier components, etc., from the P.W.1 Company for their illegal gain and as such, they committed breach of trust and made P.W.1 company to incur huge loss to the tune of Rs.1.81 lakhs by way of materials and other losses in the market, which cannot be quantified. 3. In order to prove the case of prosecution, P.Ws.1 to 17 were examined and Exs.P.1 to P.88 were marked besides M.Os.1 to 26. No witness was examined on the side of the accused but Exs.D.1 and D.2 were marked. 4. 3. In order to prove the case of prosecution, P.Ws.1 to 17 were examined and Exs.P.1 to P.88 were marked besides M.Os.1 to 26. No witness was examined on the side of the accused but Exs.D.1 and D.2 were marked. 4. The trial Court, considering such evidence and the Exhibits and Material Objects marked, recorded finding that A-1 to A-6 are not guilty under Sections 120(B), 408, 381 and 420 I.P.C. and that A-7 to A-9 are not guilty under Section 381 I.P.C. and accordingly, acquitted A-1 to A-6 in respect of all the charges levelled against them and acquitted A-7 to A-9 in respect of charge under Section 381 I.P.C. The trial Court further found A-7 to A-9 guilty for the offence under Sections 120(B), 408, 420 and 424 I.P.C. and awarded sentence besides imposing fine. The acquittal of A-1 to A-6 in respect of charges under Sections 120(B), 408, 381 and 420 IPC and A-7 to A-9 in respect of charge under Section 381 I.P.C. is challenged in this revision by the defacto complainant P.W.1. 5. Heard the learned counsel for the revision petitioner / defacto complainant; learned Government Advocate (Criminal side) for the first respondent; and the learned counsel appearing for Respondents 7 to 9. 6. Learned counsel for the revision petitioner / defacto complainant, taking this Court through the entire evidence, vehemently contended that A-1 took the materials of P.W.1 Company in the pretext of sending the same to the clients and as such, committed misappropriation and the same has not been properly considered by the trial Court. He also submitted that inasmuch as stealing of formula is concerned, being their own invention, it can be used by P.W.1 Company alone, but it is now used by the newly started company by the accused under the name and style of ‘Frontline Systems and Services’ (hereinafter referred to as ‘the Accused Company’) and, therefore, offences under Sections 120(B), 408 and 420 IPC have been made out against A-1 to A-3. It is the further submission of the learned counsel that A-6, who is the wife of A-4, has also taken prominent role in the forming of the Accused Company using the formula invented by P.W.1 Company. In this regard, he submitted that evidence have been let in against A-5 and A-6 attracting the charges levelled against them. It is the further submission of the learned counsel that A-6, who is the wife of A-4, has also taken prominent role in the forming of the Accused Company using the formula invented by P.W.1 Company. In this regard, he submitted that evidence have been let in against A-5 and A-6 attracting the charges levelled against them. It is further argued by the learned counsel for the revision petitioner that satisfactory evidence have been let in proving the offence under Section 381 I.P.C. against A-7 to A-9. 7. Learned counsel for the accused submitted that the prosecution failed to prove the entrustment of properties of P.W.1 Company, such as, Secret Designs, PCB Layout, costlier spares, R & D related materials, Sales documents, etc., and as such, there is nothing to indicate or accept the case of prosecution that the accused committed cheating as alleged, in view of the fact that there have been no entrustment of the properties for attracting offences under Section 408 or 420 I.P.C. It is further submitted by the learned counsel that the offences under Sections 408 and 381 I.P.C. will not go together. 8. Admittedly, P.W.1 was the sole proprietor of the Company ‘Numeric Engineers’ manufacturing and supplying U.P.S. System, which is an electronic equipment mainly used as power supply for computers and other communication equipment. It is evident from Ex.P.2 Salary Certificate that A-1 was employed in Testing and Servicing Department in the said Company. The evidence of P.W.1 would show that on 01.11.1993, A-1 took the materials, such as, printed circuit boards of various designs, electronic spares, etc. from P.W.1 Company to make repairs at MST Radar Systems, Tirupathi; on 17.11.1993 to Madurai Kamaraj University and on 20.11.1993 to ANZ Grindlays Bank, Chennai, and he did not return the same to P.W.1 Company. But it is seen from Ex.D.2, letter sent by MST Radar Systems, that one Rajkumar attended the repair work in that company on 02.11.1993 and as such, it is clear that no spare part was entrusted to A-1 when he was directed to attend the repair work in MST Radar Systems. Similarly, P.W.1 also admitted in his cross-examination that it is only Rajkumar, who attended the repair work in MST Radar Systems, Tirupathi. Similarly, P.W.1 also admitted in his cross-examination that it is only Rajkumar, who attended the repair work in MST Radar Systems, Tirupathi. Though P.W.1 has deposed that he has filed Delivery Challans to show that spare parts were entrusted to A-1 on 01.11.1993, as rightly held by the trial Court, it is not known as to why the above said spare parts were given to A-1 for the purpose of attending the repair work in MST Radar Systems, while the same was actually attended by Rajkumar. P.W.1 has also agreed that there is no mention in Ex.P.16 Register with regard to the Delivery Challans showing the entrustment of spare parts to A-1. It also turns out from the evidence of P.W.10, an employee of ANZ Grindlays Bank, that A-1 did not attend the service work in the said Bank for replacing or repairing UPS installed by P.W.1 Company. It is also evident from Ex.P.86, letter given by P.W.15, that A-1 did not go to Madurai Kamaraj University for the purpose of attending the service work or repair work in the UPS machines installed by P.W.1 Company and A-1 had also not signed in the relevant Register maintained by the University indicating that he did not go to the said University. Therefore, it is clear, as rightly found by the trial Court, that the prosecution failed to establish that spare parts of P.W.1 Company were entrusted to A-1 and he did not return the same but used the same for the Accused Company. Merely because some entries are found in Exs.P.16, P.45 and P.46, it cannot be inferred that A-1 was entrusted with the spare parts of P.W.1 Company and that he cheated P.W.1 Company by not returning the same to them. It is further seen that no memo was issued to A-1, as admitted by P.W.9, and if really A-1 had committed theft of the spare parts belonging to P.W.1 Company, certainly, memo could have been issued to him to the effect that he failed to return the spare parts of the Company, which were entrusted to him. It is further seen that no memo was issued to A-1, as admitted by P.W.9, and if really A-1 had committed theft of the spare parts belonging to P.W.1 Company, certainly, memo could have been issued to him to the effect that he failed to return the spare parts of the Company, which were entrusted to him. It is also admitted by P.W.1 that the spare parts bearing No.8038, which is being used for manufacturing UPS, are available in the open market and that the same has not been registered by P.W.1 Company under the Patents Act and as such, it cannot be said that the spare parts with the above No.8038 belonged to the P.W.1 Company. Therefore, the trial Court, correctly appreciating the evidence, rightly found that A-1 is not guilty in respect of the charges levelled against him. Inasmuch as the prosecution failed to establish that A-1 committed theft of spare parts belonging to P.W.1 Company and in the absence of any material to show that he sold the same as if they were manufactured by P.W.1 Company, it cannot be said that A-1 caused huge loss to P.W.1 Company. 9. As far as A-2 and A-3, who worked in Sales section and Production section respectively in P.W.1 Company in Chennai, are concerned, it is submitted by the learned counsel for the revision petitioner that they were entrusted with Exs.P.5 to P.13 (Drawings, Designs, Layouts of PCB, official papers and other company sales related materials) and they committed criminal breach of trust in respect of the above said materials by joining all the accused together. Though such a charge has been levelled against A-2 and A-3, there is nothing to infer that they committed theft of Drawings, Designs, Layouts of PCB, official papers and other company sales related materials. Further, as rightly observed by the trial Court, it is not stated by P.W.1 that A-2 and A-3 took the said documents and sold the same to the Accused Company or any other company thereby causing loss to P.W.1 company. It is also clear that admittedly, no memo was issued to A-2 and A-3 as to why they did not return the said documents, which were entrusted to them. 10. It is also clear that admittedly, no memo was issued to A-2 and A-3 as to why they did not return the said documents, which were entrusted to them. 10. As regards A-4 to A-6, as per the case of Prosecution, A-4 was in the Sales Section in Chennai and then at Delhi, A-5 was working in several sections in Chennai and then at Delhi and A-6, wife of A-4, worked in R & D Section. P.W.8, who was appointed as Service Engineer of P.W.1 Company at Delhi, has stated in his evidence that A-4 and A-5 did not hand over any materials to him when he took over charge of Delhi Branch and accordingly, he has sent a Fax message, xerox copy of which is marked as Ex.P.65. Even assuming that A-4 and A-5 did not hand over the materials to P.W.8, no reason is forthcoming as to why P.W.8, on assumption of charge of Delhi Branch, had not verified the accounts with reference to Registers and found the deficit or short delivery of the parts of P.W.1 Company. Admittedly, no memo was also issued to them as to why they did not hand over the materials to P.W.1 Company, which were entrusted to them. It is also admitted by P.W.1 that the signature of A-4, Venkataraman, was not obtained in Ex.P.62 for handing over the said articles. Therefore, merely because they attended the work of P.W.1 Company, it cannot be inferred that they committed theft of the materials belonging to P.W.1 Company. Based on the very fact that the accused started new Company, in the absence of any concrete material, it cannot be concluded that A-4 and A-5 committed theft of spare parts belonging to P.W.1 Company, which were entrusted to them for attending the repair work to their clients. Therefore, the trial Court, considering all these aspects properly, rightly found that A-4 and A-5 are not guilty in respect of the charges levelled against them. 11. It is alleged that A-6, who is the wife of A-4, took active part in starting the Accused Company. Therefore, the trial Court, considering all these aspects properly, rightly found that A-4 and A-5 are not guilty in respect of the charges levelled against them. 11. It is alleged that A-6, who is the wife of A-4, took active part in starting the Accused Company. But no satisfactory evidence has been let in against A-6, who was working in R & D Section of P.W.1 Company, that she committed theft of spare parts belonging to P.W.1 Company and that she used the same for the purpose of wrongful gain and caused wrongful loss to P.W.1 Company by selling the same. Therefore, the finding of the trial Court that A-6 is not guilty in respect of the charges levelled against her does not call for any interference. 12. As regards A-7 to A-9, the trial Court giving reasons found that the offence under Section 381 I.P.C. is not attracted in acquitting the said accused in respect of that charge. It is submitted by the learned counsel appearing for the accused that the appeal filed by A-7 to A-9 in C.A.No.99 of 2000 on the file of the Additional District and Sessions Court (Fast Track Court No.I), Chennai filed against the conviction and sentence awarded under Sections 120B, 408, 420 and 424 I.P.C. was allowed as per judgment dated 25.1.2005 in setting aside the judgment of the trial Court in respect of the above charges, which were found not proved, by the Additional District and Sessions Court. Hence, there is no reason to interfere with the finding of the trial Court in acquitting A7 to A9 in respect of the offence under Section 381 I.P.C. 13. Therefore, inasmuch as the finding of the trial Court does not suffer from any perversity and no erroneous approach has been made by the trial Court, which has not resulted in flagrant miscarriage of justice, as held by this Court in A.Somu Thevar V. Sivakumar [1997 (XLI) M.L.J.R. 339], the same does not warrant any interference by this Court. 14. In the result, in view of the discussions made above, the revision is dismissed and the judgment of the trial Court dated 24.4.2000 passed in C.C.No.4708 of 1995 by the Additional Chief Metropolitan Magistrate, Egmore, Chennai, is confirmed, so far it relates to subject matter of this revision.