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2010 DIGILAW 625 (JK)

Kartar Singh v. State Of J&K

2010-12-16

Hasnain Massodi

body2010
1. The petitioner No.1 is a construction contractor by profession. Petitioner No. 2 is Junior Engineer Public Works (R&B) Department and petitioner No. 3 engaged in carriage of building material. The petitioner No. 1 some time in 2007 was allotted a contract for raising B/Wall on Dharamkote--Rampure road via Sitla Mata Temple in Tehsil Billawar. The Public Works (R&B) Department issued 700 bags of cement to the petitioner No.1 from Government stores for its utilization in the allotted construction work. The department on 10.08.2007 as part of the offered quantity of the cement issued 150 bags of cement to the petitioner No. 2, working as Junior Engineer in Public Works (R&B) Department Division Basohli, for its onward delivery to the petitioner No. 1 and its utilization in the said contract work. The petitioner No. 2 accordingly issued a Dispatch Challan of 150 bags to the petitioner No. 1 on 11th August 2007. The petitioner No. 1 got released quantity of cement loaded in a truck driven by the petitioner No.3. The petitioner No. 3 on 11.08.2007 itself out of 150 bags of cement meant for utilization in the construction work in question, unloaded 140 bags of the cement at Dharamkote. Soon after the 140 bags of the cement were so unloaded and stored in a shop at Dharamkote. Police Station Billawar received information from reliable sources that the cement meant for utilization in construction of B/Wall at Dharamkote--Rampure road was misappropriated by the petitioner No. 1 in connivance with petitioner No. 2 and 3. Police Station Billawar on receipt of the information was prompted to register case FIR No. 122 of 2007 under Section 409, 407, 406, 420/109 RPC. Investigation was concluded as proved against the petitioners and a charge sheet alleging commission of offences punishable under Section 409, 407, 406, 420/109 RPC, presented in the Court of Judicial Magistrate Ist. Class (JMIC) Billawar on 2Ist. September 2007. The Trial Court on 01.06.2009 on perusal of the charge sheet and after hearing the parties, held the charge sheet and prima-facie disclose commission of offences punishable under Section 409, 407, 406, 420/109 RPC, by the petitioners and formally charged the petitioners of said offences. 2. The petitioners assailed the order dated 01.06.2009 through the medium of a revision petition before Learned Sessions Judge Kathua. The revision petition, however, did not succeed and was rejected on 05.11.2009. 2. The petitioners assailed the order dated 01.06.2009 through the medium of a revision petition before Learned Sessions Judge Kathua. The revision petition, however, did not succeed and was rejected on 05.11.2009. The Revisional Court was of the opinion that issues raised in revision petition touched factual aspects of the matter and could be only dealt with after trial was allowed to proceed. 3. The petitioners undeterred by the Trial Court order and their failure in the Revisional Court have come up with the present petition under Section 561-A Cr.P.C. invoking inherent powers of the Court for quashment of the charge sheet filed against the petitioners by Police Station Billawar as also order dated 01.06.2009, whereby the petitioners have been formally charged of the offences publishable under Section 409, 407, 406, 420/109 RPC. 4. The petitioners base their case primarily on the ground that Public Works (R&B) Department as a matter of fact sold 700 bags of cement including 140 bags alleged to have been misappropriated by the petitioners to the petitioner no.1, inasmuch as the department deducted price of the supplied cement from the amount payable to the petitioner No. 1 on account of execution of the contract work. It is urged that there was thus no "entrustment" within the meaning of Section 405 Ranbir Penal Code and the petitioners could not be held liable to have committed criminal breach of trust punishable under Section 406 Ranbir Penal Code. The charge sheet, it is pleaded, did not disclose commission of offences alleged therein, by the petitioners and the Trial Court was not right in taking cognizance in the charge sheet, issuing process against the petitioners and thereafter formally charging the petitioners of the offences alleged in the charge sheet. The Revisional Court, according to the petitioners, fell in error while holding that the grounds urged before the Revisional Court pertain to factual aspects of the matter and were to be dealt with by the Trial Court, after the prosecution and the defence were afforded an opportunity to lead evidence in support of their respective stands. 5. I have gone through the petition as also record received from the Trial Court; I have heard Learned Counsel for the parties. Section 405 Ranbir Penal Code defines criminal breach of trust as under:- 405. 5. I have gone through the petition as also record received from the Trial Court; I have heard Learned Counsel for the parties. Section 405 Ranbir Penal Code defines criminal breach of trust 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 willfully suffers any other person so to do, commits "criminal breach of trust". 6. A closer look at the above provision reveals that in order to hold a person guilty of breach of trust, such person must be entrusted with property or entrusted with any dominion over the property and thereafter the property must be dishonestly misappropriated or converted to his own use by such person. Dishonest use or disposal of the property in violation of any direction or law prescribing the mode in which trust is to be discharged or in violation of any legal contract, express or implied made, touching discharge of such trust, also amount to criminal breach of trust. It follows that dishonest misappropriation or conversion to one’s own use is not sine qua non to constitute offence of breach of trust and the offence may be committed even where there is no dishonest misappropriation or conversion to his own use, but all the same there is use or disposal of the property in violation of directions of law prescribing mode in which the said trust is to be discharged for or of any legal contract made in respect of discharge of such trust. 7. The Public Works (R&B) Department supplies or makes available stores like cement, steel etc to a contractor allotted a construction work so as to attain twin objects of maintenance of standards and execution of the contract within the time frame agreed between the parties. 7. The Public Works (R&B) Department supplies or makes available stores like cement, steel etc to a contractor allotted a construction work so as to attain twin objects of maintenance of standards and execution of the contract within the time frame agreed between the parties. The department procures material of a standard and quality that according to the inputs received by the department from its Architect and Structural Engineer is to be utilized for raising construction in question, so that there is no compromise on the quality of the material used for execution of the contract work. In order to adhere to the time schedule of execution of work in question, it is necessary to maintain smooth flow of the building material irrespective of any change in market prices or availability of such material. In case a contractor is not provided essential building material, the contractor may not be in a position to execute the work allotted complaining that there is shortage in supply of the building material or there is significant hike in its price over and above the cost he had worked out while making an offer to execute the work and is thus not in a position to execute the work at all or within the time schedule fixed in the agreement. It follows that there is an implied contract between the contractor and the department that building material supplied shall be used only for the work allotted to the contractor. It is pertinent to point out that after the contractor completes work, the contractor has to account for the stores supplied like cement, steel etc, issued by the department to contractor and to redeposit the excess material if any left with him. It is only after the exact quantity of the material utilized out of the material supplied is worked out that the cost of such material is deducted from the final bill payable to the contractor. So viewed there is no substance in the argument that as the contractor has to make payment for the stores/material supplied, the supply of the building material by the department constitutes a sale and not "entrustment" within the meaning of Section 405 RPC and that the contractor is free to use the supplied material in the mode and manner he likes and even sell it in the open market. Same is true about supplies of food grains and other food items by the department of Consumer Affairs and Public Distribution to a Ration Depot holder for its sale on concessional prices to a particular section of society like people living below the poverty line (BPL) or falling within a particular income group. If the Ration Depot holder sells the ration, food grains (food items) etc, to a person not falling within the target group but in the open market, such sale shall amount to disposal or use of property in violation of prescribed mode in which the food grains/food items over which domain is entrusted to the Ration Depot holder, is to be supplied/sold as also terms of the contract made in respect of use of the property. 8. From the above discussion what emerges is that use of the property in violation of direction of law prescribing mode in which the property is to be used disposed of and dealt with or in violation of a legal contract governing use or disposal of the property, amounts to criminal breach of trust within the meaning of Section 405 RPC. 9. So viewed the ground urged in the petition that the order of Learned Trial Magistrate amounts to abuse to process of the Court inasmuch as the petitioner No. 1 having purchased the cement from Public Works (R&B) Department Division Basohli, was free to use it in the manner he liked is bereft of any merit and destined to fail. The petition thus deserves to be dismissed. It is however made clear that the above discussions does not relate to and must not be taken as a comment on the factual aspects of the case. It is for the Trial Magistrate to conclude at the end of the trial on the basis of the evidence brought on the file as to whether the alleged quantity of cement was delivered to the petitioner No.1, and thereafter disposed of by the petitioners in the mode and manner alleged in the charge sheet. 10. For the reasons discussed the petition is dismissed. The Trial Court record is send down. The Trial Court is expected to take note of delay in trial because of pendency of the petition and take all possible steps to ensure that the trial proceeds expeditiously and with proper dispatch.