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Madhya Pradesh High Court · body

2016 DIGILAW 526 (MP)

Jagdish Korku v. State of M. P.

2016-07-01

VIVEK AGARWAL

body2016
ORDER 1. This petition has been filed under section 482 of CrPC for quashing the proceedings pending before the CJM, Ashok Nagar in case No. 2544/2015, arising out of the FIR registered at Crime No.330/2015 by which offence has been registered under the Provisions of section 3/7 of the Essential Commodities Act,1955 read with sections 409, 201 of IPC. 2. Petitioner is a Manager of Dongra Sahkari Samiti Mungawali, Ashok Nagar which has been entrusted with the work of running a fair price shop under the Public Distribution System. As per the contents of the FIR, the Junior Supply Officer during inquiry had sought copies of the stock register, distribution register of food grains and other items so also allotment order, delivery order, distribution slips etc. from the petitioner and the salesman but said documents were not supplied and on contacting the consumers it was revealed that there were serious discrepancies in the quantity of foodgrain supplies to the beneficiaries as a result it was found that prima facie an offence under section 3/7 of the Essential Commodities Act is made out. 3. Accordingly an FIR was lodged under section 3/7 of the Essential Commodities Act. It is the contention of the petitioner that after investigation by the Police Inspector, final report has been submitted to the Chief Judicial Magistrate, Ashok Nagar, wherein besides crime under section 3/7 of the Essential Commodities Act, FIR was registered under sections 409 and 201 of IPC. 4. It is the contention of the petitioner that the Station House Officer being not satisfied with the petitioner has framed him in non-bailable offences punishable under sections 409 and 201 of IPC. It is also submitted by the petitioner that ingredients of offence under section 405 of IPC to make an offence under section 409 are not available from the material on record and, therefore, he has prayed for quashing of the FIR as well as the proceedings pending before the trial Court in Case No.2544/2015. 5. It is also submitted by the petitioner that ingredients of offence under section 405 of IPC to make an offence under section 409 are not available from the material on record and, therefore, he has prayed for quashing of the FIR as well as the proceedings pending before the trial Court in Case No.2544/2015. 5. Petitioner has also submitted that in terms of section 5 of IPC which provides that nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of the special local law as there are adequate Provisions under the Essential Commodities Act, 1955, therefore, provisions of section 409 will not be applicable. 6. Petitioner has submitted that he being a Samiti Prabandhak could not have been arrayed as an accused in the offence as the allegations in the FIR are against the salesman and not the petitioner. It is also submitted that no property was ever entrusted to him and, therefore, there is no question of violation of any trust or misappropriating or converting the property dishonestly. It is also submitted that petitioner being not a public servant as per the definition under section 21 of IPC, therefor, Provisions of section 409 of IPC shall not be attracted. In support of his case, petitioner has relied on the decision of this Court in the case of Mahesh Chaurasiya v. State of M.P. and others; decided in Miscellaneous Criminal Case No.2967/2008 so also on the judgment of Allahabad High Court in the case of Pepsico India Holding Pvt. Ltd. v. State of U.P. and others. 7. Learned Panel Lawyer for the State submits that section 3 of the Essential Commodities Act deals with power to control production, supply, distribution etc. of the Essential Commodities. Section 7 of the Act,1955 provides for punishment for violation only of the provisions of section 3 but breach of trust is a different offence not covered under the Essential Commodities Act, therefore provisions of sections 405 and 409 can be enforced as the provisions of IPC are in addition to Provisions of special law and are not in derogation of the Provisions of the special law. 8. 8. Learned Panel Lawyer has also submitted that the provisions of section 409 of IPC not only applies to a public servant but also to a merchant or agent who has been entrusted some property in trust. It is also submitted that definition of criminal breach of trust in section 405 of IPC is wide enough to include the petitioner who is Manager of a Cooperative Society to face the charges under section 409 of IPC; in case it is found that property entrusted to such society has been dishonestly misappropriated or converted to his own use or dishonestly uses or disposes that property in violation of any direction of law prescribing the mode in which such trust is to be discharged. 9. It is seen that goods under Public Distribution System are procured by the Government or it’s agency and are entrusted to societies like that in which petitioner is a Manager for distribution to public living below poverty line at a subsidized rate. 10. Thus, there is a mandate to distribute the foodgrains entrusted to a Cooperative Society running a fair price shop to distribute the goods in the manner prescribed under the scheme of Public Distribution. 11. The allegations against the petitioner and the salesman are unambiguous that they had dishonestly not distributed the goods in terms of the scheme and had dishonestly misappropriated the goods in criminal breach of trust. In fact, goods are held by a fare price shop under the Public Distribution System on trust. If there is violation of such trust, offence under section 409 of IPC is made out. 12. Petitioner has placed reliance on the judgment of Mahesh Chaurasiya (supra), wherein this aspect of the matter has not been examined that even a banker, merchant or agent is liable to be prosecuted for offence under section 409 of IPC, if some property has been entrusted to such person. Definition of public servant under section 21 of IPC is wide. Clause ninth of the Definition will take within its fold even a Manager of a Cooperative Society entrusted with goods in the form of property on behalf of the Government to distribute to a particular section of the society for which Government is providing subsidy. Therefore, facts of the case of Mahesh Chaurasiya being different are not applicable to the present case. 13. Therefore, facts of the case of Mahesh Chaurasiya being different are not applicable to the present case. 13. Petitioner has placed reliance on the case of Jodh Singh and another v. State of M.P. and another; decided by this Court on 13.3.2015 in Miscellaneous Criminal Case No.8836/2013. In that case the High Court quashed the FIR on the ground that allegations made in the FIR even on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. In the present case, situation is different in as much as FIR clearly makes out a case of misappropriation of public goods entrusted to the petitioner in his capacity as Manager of a Cooperative Society along with the salesman who have failed to distribute the properties held by them in trust in the manner in which they were liable to distribute. 14. Petitioner has also placed reliance on the judgment of the Allahabad High Court in the case of Pepsico India Holding Pvt. Ltd. v. State of U.P. and others. The facts of the said case are different from the present case. The case of Pepsico India Holding Pvt.Ltd., has held that in terms of provisions of section 5 of IPC, it is crystal clear that nothing in the Penal Code shall affect any provision of any special Act and when for any act or omission in a particular subject, a special set of rules has been framed, in that situation, the Provisions of the IPC have to be ignored or overlooked. The fact of the matter is that section 26, General Clauses Act contains provisions as to offence punishable under two or more enactment. It lies down that where an act or omission constitute an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. Facts of the present case are different from the judgment given in the case of Pepsico India Holding Pvt. Ltd. There the petitioner/company was proceeded under the Provisions of sections 272 and 273 of IPC which deals with adulteration of food or drink intended for sale and with sale of noxious food or drink. Facts of the present case are different from the judgment given in the case of Pepsico India Holding Pvt. Ltd. There the petitioner/company was proceeded under the Provisions of sections 272 and 273 of IPC which deals with adulteration of food or drink intended for sale and with sale of noxious food or drink. Analogous Provisions have been incorporated under the provisions of Food Adulteration Act being a Special Act, therefore, in the light of section 26, General Clauses Act petitioner was not liable to be punished twice for the same offence as the offence under sections 272 and 273 of IPC were analogous to the provisions contained in Provisions of Food Adulteration Act, 1954. 15. In the present case, section 3/7 of the Essential Commodities Act operate in a different plane and the provisions of section 409 of IPC are on a different plane. Therefore, the provisions of section 3/7 of Essential Commodities Act does not constitute the same offence as contained in section 409 of IPC, the ratio of the decision of Pepsico India Holding Pvt. Ltd. is not available to the petitioner. In fact in the case of Ejas Ahmed v. State of Jharkhand, reported in 2010 CrLJ 1953 (Jha), it is held that when there is no specific punishment provided under special law then the punishment prescribed under the General Law i.e. IPC comes into operation. In the instant case as no punishment is prescribed for the offence under section 409 of IPC in the Essential Commodities Act,1955, therefore, charge under section 409 of IPC is maintainable. 16. In view of the aforesaid discussion, there is no case for quashing of the FIR under Crime No.330/2015 registered by the police or the proceedings pending before the CJM, Ashok Nagar in Case No.2544/2015. This petition deserves to be dismissed and is hereby dismissed. No order as to cost.