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2009 DIGILAW 395 (GAU)

Atal Stores v. Jain Enterprise

2009-06-06

BROJENDRA PRASAD KATAKEY

body2009
JUDGMENT B.P. Katakey, J. 1. These revision petitions under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, are directed against the orders passed by the learned Additional Chief Judicial Magistrate, Dibrugarh in complaint Case No. 136C/1999 framing charge under Sections 409/34 IPC against the Petitioners who are the accused in the said complaint case. In both the revision petitions the matter in issue being the same, as agreed to by the learned Counsel for the parties, are taken up for hearing and disposal together. 2. The Respondent in the revision petitions filed a complaint case in the Court of the learned Chief Judicial Magistrate against the present Petitioners and Anr. namely, Smt. Santi Debi Atal, (who during the pendency of the revision petitions died) and who are the partners of M/s Atal Stores (accused No. 1), a partnership firm, alleging commission of offence under Section 409/34 IPC, stating inter alia that the accused No. 4 (Shri Gobardhan Prasad Atal) who is one of the partners of the partnership firm (the accused No. 1) and of which the accused Nos. 2 and 3 are also the partners, on 20.11.1993 agreed and assured the complainant for dispatch of one rack O.P.C. Santa cement consisting of 2000 MT for a sum of Rs. 40,00,000/-, which was paid by the complainant in the name of the accused No. 1 by bank drafts all dated 22.11.1993 drawn on Punjab National Bank, Dibrugarh and Allahabad Bank, Dibrugarh payable at Guwahati, but the accused who were required to complete the delivery of cement within 45 days of receipt of the money failed to dispatch the cement and hence on 11.05.1994 the accused No. 1 through the accused No. 4 sent a letter to the complainant showing a deposit of Rs. 38,29,786.80 on account of the supply of cement and regretted for delay in dispatch of the cement. Thereafter the accused No. 4 on 30.07.1994 informed the complainant about a dispute between the accused, manufacturer and the bank and assured that within a month the problem would be sorted out and requested the complainant to bear till then and also informed the complainant on 31.10.1994 that they would pay interest @ 10% per annum on the amount kept in deposit till the supply of cement are effected, otherwise the amount would be returned to the complainant. According to the complainant as the accused failed to supply the cement, they issued 4 (four) cheques covering an amount of Rs. 37,09,371.22, which amount was found to be payable after adjustment of accounts, drawn on Vijaya Bank, Fancy Bazar, Guwahati, without putting any dates thereon and forwarded the same along with the letter dated 29.01.1997 and requested the complainant to put the dates afterwards as per their advice as they would arrange the fund very soon. According to the complainant though they vide letter dated 01.08.1997 and 18.05.1998 requested the accused persons to inform the date when the said cheques are to be presented in the bank for payment, the accused persons with malafide intention did not give any reply and thereafter vide communication dated 21.04.1999 cancelled the aforesaid cheques and asked the complainant to return the same which the complainant has protested vide letter dated 24.04.1999. 3. The learned Chief Judicial Magistrate vide order dated 10.06.1999, after recording the statement of the complainant and upon perusal of the documents filed, took the cognizance of the case under Sections 409/34 IPC against all the accused persons and issued bailable warrant of arrest. The accused persons thereafter filed two petitions under Section 482 of the Code of Criminal Procedure, registered and numbered as Criminal Revision Petition No. 348 of 1999 and Criminal Revision Petition No. 391 of 1999, for quashing the proceeding in the aforesaid complaint case. A single Bench of this Court vide Judgment and Order dated 04.03.2003 dismissed both the revision petitions by refusing to quash the proceeding. The accused persons thereafter appeared before the learned Chief Judicial Magistrate, except the accused No. 3 (since deceased) who was allowed to be represented by the learned Counsel and was granted bail. The complaint case was thereafter allotted to the learned Additional Chief Judicial Magistrate, Dibrugarh for disposal by the learned Chief Judicial Magistrate vide order dated 05.08.2006. The evidence of one witness on behalf of the complainant (PW-1) was recorded before charge. The complaint case was thereafter allotted to the learned Additional Chief Judicial Magistrate, Dibrugarh for disposal by the learned Chief Judicial Magistrate vide order dated 05.08.2006. The evidence of one witness on behalf of the complainant (PW-1) was recorded before charge. The learned Additional Chief Judicial Magistrate, Dibrugarh upon hearing the learned Counsel for the parties and on perusal of the materials available on record vide order dated 15.05.2007 recorded the prima facie satisfaction for framing charge under Sections409/34 IPC against all the accused persons and directed them to appear on 31.05.2007, on which date the charges under Sections 409/34 IPC were framed which when read over and explained to the accused persons, they pleaded not guilty and claim to be tried. 4. Heard Mr. G.N. Sahewalla, learned Sr. Counsel for the Petitioners and Mr. A.K. Bhattacharyya, learned Sr. Counsel for the opposite party in both the revision petitions. 5. Mr. Sahewalla, the learned Sr. Counsel, referring to the averments made in the complaint petition as well as deposition of the complainant's witness examined before the charge has submitted that it is evident from the allegations made that there was business transaction between the complainant and the accused No. 1 and the allegations against the accused persons do not at all disclose the ingredients to constitute an offence punishable under Section 409 IPC, the accused persons being neither the public servant nor the banker or the merchant or the agent within the meaning of the said provision of law. Referring to the deposition of the complainant's witness it has further been submitted that it is evident that there was business transaction between the complainant and the accused No. 1 firm since the year 1990, which is a continuous process of transaction of business till the dispute arise and if at all, it is a breach of contract between the parties which does not constitute any criminal offence so as to frame the charges under Sections 409/34 IPC, in the absence of any ingredients of criminal breach of trust. Mr. Sahewalla further submits that it is also evident from the allegation in the complaint petition as well as in the deposition of the complainant's witness that according to the complainant the accused Petitioners have admitted that an amount of Rs. 38,29,786.80 is due and payable and after adjustment of the accounts, cheques for Rs. Mr. Sahewalla further submits that it is also evident from the allegation in the complaint petition as well as in the deposition of the complainant's witness that according to the complainant the accused Petitioners have admitted that an amount of Rs. 38,29,786.80 is due and payable and after adjustment of the accounts, cheques for Rs. 37,09,371.22 were issued, which were subsequently withdrawn and that being the allegations it is evident that the transactions were arising out of the continuous process between the parties and there is no element of any criminal liability and at the most is a civil dispute between the parties, the framing of charge under Sections 409/34 IPC against all the accused persons in the absence of any ingredients to constitute an offence is highly illegal. Mr. Sahewalla in support of his contention has placed reliance on the decision of the Apex Court in Kailash Kumar Sanwatia v. State of Bihar and Ors. (2003) 7 SCC 399 . 6. According to Mr. Sahewalla charge under Section 409 IPC can be framed provided there is entrustment of any property or the accused person is in dominion over any property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent and commission of criminal breach of trust in respect of that property. In the instant case according to Mr. Sahewalla, the accused persons are neither the public servant nor the banker nor merchant or factor or broker or attorney or agent and there being no entrustment of the property within the meaning of Section 405 IPC and the allegation being that inspite of receipt of money the goods were not supplied, the learned Magistrate ought not to have framed the charge under Sections409/34 IPC. Mr. Sahewalla in support of his contention has also placed reliance on the decisions of the Apex Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Birendra Chandra Chakravarty AIR 1974 SC 290 , Janeshwar Das Aggarwal v. State of U.P. AIR 1981 SC 1646 . 7. It has further been submitted by Mr. Sahewalla that the learned Magistrate cannot frame the charge mechanically without satisfying itself about having sufficient grounds for proceeding and for framing the charge under the relevant provisions of the law, as has been done in the instant case. 7. It has further been submitted by Mr. Sahewalla that the learned Magistrate cannot frame the charge mechanically without satisfying itself about having sufficient grounds for proceeding and for framing the charge under the relevant provisions of the law, as has been done in the instant case. It has been contended that the High Court in exercise of the revisional power may quash the charges framed to secure the ends of justice and if the materials available before the learned Magistrate do not disclose prima facie commission of any offence for which the charges are framed. 8. Mr. Bhattacharyya, the learned Sr. Counsel, on the contrary referring to Section 405 IPC as well as the averments made in the complaint petition and also the deposition of the complainant's witnesses examined before framing of charge, has submitted that the complainant having been able to make out a case of criminal breach of trust by the Petitioners, the learned Court below has rightly framed the charges against them. It has further been submitted by Mr. Bhattacharyya that since the ingredients of Section 405 IPC are present, even assuming the Petitioners cannot be termed as banker, merchant, factor, broker, attorney or agent within the meaning of Section 409 IPC, the learned Magistrate has the power to alter the charge under Section 216 Code of Criminal Procedure and frame charge punishable under Section 406 IPC, if in a subsequent stage, it appears to the Magistrate that though the ingredients of 409 IPC is absent, ingredients to constitute an offence under Section 405 IPC and punishable under Section 406 IPC are present. According to Mr. Bhattacharyya while framing the charge under Section 246 Code of Criminal Procedure what the learned Magistrate required is to prima-facie satisfy that the accused persons have committed offences. According to the learned Sr. Counsel, such prima facie satisfaction is to be recorded on the basis of the materials made available including the witnesses, if any, examined by the complainant under Section 244 Code of Criminal Procedure before framing of charge, assuming the allegation in the complaint petition and the deposition of witnesses examined to be true. In the instant case, according to Mr. Counsel, such prima facie satisfaction is to be recorded on the basis of the materials made available including the witnesses, if any, examined by the complainant under Section 244 Code of Criminal Procedure before framing of charge, assuming the allegation in the complaint petition and the deposition of witnesses examined to be true. In the instant case, according to Mr. Bhattacharyya, even assuming there is no material to frame the charge under Section 409 IPC, the materials available before the learned Magistrate disclose the existence of the materials for framing charge under Section 406 IPC, the ingredients to constitute the offence of criminal breach of trust under Section 405 IPC having been present. Mr. Bhattacharyya submits that the learned Magistrate has only framed the charges on being prima facie satisfied about the existence of the materials available on record for proceeding against the accused/Petitioners under Section 409IPC and the complainant would be entitled to lead further evidence during the course of trial to prove the charges levelled against the Petitioners and if he fails to do so, the accused/Petitioners are entitled to be acquitted and, therefore, no prejudice would be caused to them if the trial allows to continue. 9. Mr. Bhattacharyya further submits that it is not always correct to say that in an action, which is apparently of a civil nature, there cannot be criminal liability. Even in a matter of commercial transaction if the complainant could prima-facie satisfy the Court relating to the commission of any criminal offence, the charge under appropriate provisions of law under the IPC can be framed, therefore, according to the learned Sr. Counsel, the contention of the Petitioners that the dispute being out of a commercial transaction, the criminal proceeding is not maintainable, cannot be accepted. Mr. Bhattacharyya submits that the Petitioners earlier approached this Court to invoke the jurisdiction under Section 482 Code of Criminal Procedure for quashing the proceeding in the complaint case, which were registered and numbered as Criminal Revision Petition Nos. 348/1999 and 391/1999 and this Court vide judgment and order dated 04.03.2003 has refused to quash the proceeding in the said complaint cases and the Petitioners with a view to delay of disposal of the criminal proceeding have again approached this Court by way of present the criminal revision petition challenging the order framing charges. 10. The learned Sr. 348/1999 and 391/1999 and this Court vide judgment and order dated 04.03.2003 has refused to quash the proceeding in the said complaint cases and the Petitioners with a view to delay of disposal of the criminal proceeding have again approached this Court by way of present the criminal revision petition challenging the order framing charges. 10. The learned Sr. Counsel further submits that the High Court, only in exceptional circumstances and to prevent the abuse of the process of the Court or otherwise to secure the ends of justice, can quash the charges or the criminal proceeding. In the instant case, according to the learned Sr. Counsel, there being materials to constitute an offence punishable under Section 409 IPC, the learned Court below cannot be said to have committed any wrong in framing of charge against the accused persons, requiring interference of this Court. 11. I have considered the submissions of the learned Sr. Counsel for the parties and perused the materials available on record. 12. The Respondent filed the complaint case registered and numbered as Complaint Case No. 136 (C)/1999 against the present Petitioners as accused contending inter-alia that though an amount of Rs. 40,00,000/- was paid in the name of the accused No. 1 by demand drafts on the assurance of the accused persons that 2000 MT OPC Santa cement would be supplied to them, subsequently they failed to supply the same and informed the Respondent/complainant that an amount of Rs. 38,29,786.80 is due and payable and thereafter, four cheques for an amount of Rs. 37,09,371.22, after making certain adjustment of account, were sent without putting the date thereon stating that the date to be put in such cheques would be intimated later as they have to arrange for fund. The further allegation in the complaint petition is that the cheques were thereafter cancelled by the Respondents instead of informing the date for presentation to the Banker. The witness examined by the complainant before charge under Section 244 Code of Criminal Procedure in support of the allegations in the complaint petition has also stated in the same line. The further allegation in the complaint petition is that the cheques were thereafter cancelled by the Respondents instead of informing the date for presentation to the Banker. The witness examined by the complainant before charge under Section 244 Code of Criminal Procedure in support of the allegations in the complaint petition has also stated in the same line. The learned Magistrate, upon hearing the complainant as well as the accused persons, vide order dated 15.05.2007 recorded its prima facie satisfaction of having grounds for proceeding against the accused persons for the offence under Sections 409/34 IPC and hence directed all the accused persons to be present on the next date fixed. Accordingly, charges under Sections 409/34 IPC were framed on 31.05.2007, which were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. The complaint case accordingly has been fixed on 12.07.2007 for recording the evidence of the complainant side. The orders dated 31.07.2007 and 15.05.2007 passed by the learned Magistrate are reproduced below: 15.052007 Complainant is present. Accused persons are present. This order arises on framing of charge. I have already heard learned Advocate for the parties on the point of charge learned Advocate for accused placed reliance on (1981) 2 SCC 335 ; (1977) 3 SCC 147 ; (1981) 3 SCC 10 against the framing of charge on the other hand learned Advocate for complainant placed reliance on 2002 Cri. L.J. 732, 2004 Cri. L.J. 2494 in support of framing of charge. I have gone through the evidence recorded before charge and the Exhibited documents in support of the case. I have also gone through the reliances placed by the learned Advocates for the parties. It is seen that accused No. 1 is a partnership firm deals with cement and food grains and also general merchant and consignment agent of Birla Jute and Industries Ltd., Cement Division Santa M.P. and accused Nos. 2, 3 and 4 are its partners. On 20.11.93 accused No. 4 agreed and assured the complainant for dispatch of 1 (one) Rake of cement consisting of 2000 MT of O.P. C. Santa Cement on payment of Rs. 40 Lacs in the name of accused No. 1 payable at Guwahati by demand draft within 2/3 days. Secondly complainant issued 4 Bank draft favouring the accused firm No. 1. Accused acknowledged receipt of the said sum. 40 Lacs in the name of accused No. 1 payable at Guwahati by demand draft within 2/3 days. Secondly complainant issued 4 Bank draft favouring the accused firm No. 1. Accused acknowledged receipt of the said sum. Then accused No. 4 sent a letter showing deposit of Rs. 38,28,786.60 p. and regretted for delay in dispatch of cement sale letter dated 11.5.94. Accused were required to complete the delivery of cement within 45 days from the date of receipt of money but they failed to dispatch cement as agreed upon. Accused assured to pay interest @ 18% p. a. on deposited sum of Rs. 38,28,786.80 p. till the supply of cement are effected. Then accused confirmed their balance with the complainant amounting to Rs. 37,09,371.22 p. and through accused No. 4 gave four numbers of cheques totaling Rs. 37,09,371.22 p. requesting the complainant to put dates afterwards as per their advice. Ultimately accused persons vide their letter dated 21.4.99 instead of informing dates cancelled the said cheques and asked the complainant to return the cheques. After going through the evidences recorded before charge and the exhibited documents I find sufficient ground to proceed with the case against the accused person for the offence under Sections 409/34 of IPC. So all the accused persons are directed to present on date fixed for charge. Fixing 31.5,2007 for charge. 31.05.2007 Accused Shanti Devi Atal is represented by his conducting advocate. Seen the petition. Allowed. Accused Om Prakash Atal and Gobardhan Atal are present. Charge under Sections 409/34 IPC Framed and read-over explained to accused to which accused pleaded not guilty and claimed to be tried. Fix 12.7.2007. 13. The case against the accused/Petitioners being instituted, otherwise than on a police report, the provisions of Sections 244 to 246 Code of Criminal Procedure relating to framing of charges shall apply in the present case. Section 244 Code of Criminal Procedure requires the Magistrate to proceed and hear the prosecution and to take such evidence as may be adduced before framing of charge. The learned Magistrate, under Section 245(1) is empowered to discharge the accused person, if upon taking all the evidence recorded under Section 244 Code of Criminal Procedure, no case against the accused has been made out, which, if unrebutted, would warrant his conviction. The learned Magistrate, however, while discharging an accused is required to record reasons for the same. The learned Magistrate, under Section 245(1) is empowered to discharge the accused person, if upon taking all the evidence recorded under Section 244 Code of Criminal Procedure, no case against the accused has been made out, which, if unrebutted, would warrant his conviction. The learned Magistrate, however, while discharging an accused is required to record reasons for the same. Sub-section 2 of Section 245 Code of Criminal Procedure also empowers a Magistrate to discharge the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. If the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter-XIX of the Code of Criminal Procedure, which the learned Magistrate is competent to try and which, in his opinion, could adequately be punished by him, he is required to frame the charge in writing against the accused person under Section 246 Code of Criminal Procedure and such charge or charges shall then to be read over and explained to him and if the accused pleads not guilty and claims to be tried, the learned Magistrate is required to proceed with the trial. 14. The stage at which the learned Magistrate is required to consider the question of framing charge under Section 245(1) Code of Criminal Procedure is preliminary one and the test of "prima facie" case has to be applied. The learned Magistrate is required to consider as to whether the evidence, which the complainant has adduced to prove the guilt of the accused, even if fully accepted, before it is challenged in cross-examination or rebutted by the defence evidence, if any, prima facie discloses the commission of the offence by the accused and whether there is sufficient ground for proceeding with the trial. If the answer is in affirmative, he has to proceed to frame charge under Section 246Code of Criminal Procedure, otherwise for the reasons to be recorded, the accused has to be discharged. If the answer is in affirmative, he has to proceed to frame charge under Section 246Code of Criminal Procedure, otherwise for the reasons to be recorded, the accused has to be discharged. The standard of test and judgment, which is to be finally applied before recording a finding regarding guilty or otherwise of the accused is not to be applied at the stage of deciding as to whether the accused is to be discharged under Section 245 Code of Criminal Procedure or the charge is to be framed under Section 246(1) of the Code of Criminal Procedure. At this stage, the learned Magistrate is required to take into consideration the materials produced by the complainant and not the materials produced by the accused. Whether "prima facie" case for framing of the charge is made out or not is to be decided on the basis of the facts of each case. No principle of universal application can be laid down. 15. The learned Magistrate, therefore, is required to apply his mind to all the materials made available before it by the complainant including the evidence recorded under Section 244 Code of Criminal Procedure and to consider first as to whether any case against the accused person has been made out, which, the evidence recorded under Section 244 Code of Criminal Procedure if unrebutted, would warrant his conviction. The learned Magistrate has to apply the test of "prima facie" case before framing charge. Only in the event, the learned Magistrate is satisfied that the case against the accused person has been made out, he would proceed to frame charge under Section 246(1) of the Code of Criminal Procedure. However, the order framing charge, though, is not required to be a speaking order, if reasons are recorded in framing charge it has to disclose prima facie existence of ingredients to constitute the offence for which charges are framed. 16. There is no dispute to the proposition of law that for convicting an accused under Section 409IPC the prosecution has to prove--(i) criminal breach of trust within the meaning of Section 405 IPC and (ii) the accused is a public servant or banker or merchant, factor, broker, attorney or agent who has in any manner been entrusted with that property, or with any dominion over the property in that capacity, as observed by the Apex Court in Kailash Kumar Sanwatia (supra). In Superintendent and Remembrancer of Legal Affairs, West Bengal (supra) the Apex Court has upheld the Judgment of the High Court setting aside the conviction recorded against the accused person under Section 409 IPC on the ground that the dispute in that case was essentially of a civil nature and no criminal liability could satisfactorily be established. The decision of the Apex Court in that case was based on the facts of that case. In Janeshwar Das Aggarwal the Supreme Court has set aside the conviction of the Appellant therein under Section 409 IPC as there was no evidence either direct or circumstantial to show that the accused had misappropriated any of the articles and merely on the ground that he failed to give any explanation for the shortage, he cannot be convicted. That case was also decided on the basis of the fact involved in that case. It is, however, no doubt that to maintain conviction under Section 409 IPC the factum of entrustment and the factum of misappropriation of the entrusted property as well as the ingredients of Section 409 IPC are to be satisfied. It is, however, not that no criminal liability may arise out of a commercial transaction. Whether there is criminal liability or not depends on the facts of each case and is to be decided on the basis of the evidence to be adduced. 17. In the instant case, it appears from the order dated 15.05.2007 that the learned Magistrate recorded the reasons rejecting the plea of the accused for discharge and decided to frame charges under Sections 409/34 IPC against all the accused persons and accordingly charges under the said provisions are framed on 31.05.2007, however, without considering as to whether the ingredients for punishing the accused under Section 409 IPC are present, namely whether there is prima facie material for constituting the offence of criminal breach of trust and whether the accused persons are Government servant, banker, merchant, factor, broker, attorney or agent. 18. In view of the aforesaid discussion, the impugned orders dated 15.05.2007 and 31.05.2007 are set aside. The matter is remitted to the learned Magistrate to consider the materials made available by the complainant including the evidence adduced under Section 244 Code of Criminal Procedure and to pass necessary order by applying the test of "prima facie" case as indicated above. In view of the aforesaid discussion, the impugned orders dated 15.05.2007 and 31.05.2007 are set aside. The matter is remitted to the learned Magistrate to consider the materials made available by the complainant including the evidence adduced under Section 244 Code of Criminal Procedure and to pass necessary order by applying the test of "prima facie" case as indicated above. Such order shall be passed by the learned Magistrate within a period of one month from the date of receipt of the records. The parties shall appear before the learned Court below on 17th June, 2009. 19. The revision petitions are accordingly allowed to the extent indicated above. No cost. 20. Registry is directed to send back the records forthwith. Petition allowed