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2020 DIGILAW 1135 (ALL)

Chhitar Singh v. State of U. P.

2020-09-18

RAM KRISHNA GAUTAM

body2020
JUDGMENT : 1. The applicants namely, Chhitar Singh, Tejveer Singh and Neeraj Singh, by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of the Court with prayer for quashing impugned order dated 1.5.2019, 10.10.2017, 18.11.2019 and 5.2.2020, passed by learned Judicial Magistrate, Iglas, District Aligarh, with entire proceeding of Complaint Case No. 615 of 2017, Karamveer Singh Vs. Chittar Singh and others, pending in the court of learned Judicial Magistrate, Iglas, Aligarh, under Section 406 IPC, P.S. Iglas, District Aligarh. 2. Heard learned counsel for the applicants and learned A.G.A. for the State. 3. Learned counsel for the applicants argued that this Court in a proceeding under Section 482 of Cr.P.C. No. 46991 of 2019, Chittar Singh and others Vs. State of U.P. and another, vide order 7.1.2020, has directed learned trial Court for getting a report from District Horticulture Officer, Aligarh, with regard to reference to be made under Section 25 of U.P. Regulation of Cold Storage Act, 1976 (hereinafter referred to as 'Act') and if reference, as per provision of above Act was there and report is being submitted, then after case may be proceeded in accordance with above legal provision. A report from District Horticulture Officer of Aligarh was obtained, wherein, finding of liability of Rs. 62,392/-, was reported by District Horticulture Officer of Aligarh. It has been mentioned in its report that a complaint was made by Karamveer Singh in Kisan Diwas, held on 19.10.2016, which is entered in serial No. 478, regarding deposit of potato on two dates by two receipts in cold storage of M/s RSD Ice and Cold Storage Pvt. Ltd. G-28, Gyan Sarover Colony, Ramghat Road Aligarh, U.P., and it was usurped by owner of above cold storage. Payment of same was not made. District Horticulture Officer issued notice to owner of cold storage as well as complainant, whereupon, some compromise on 28.11.2016, was entered in between, but there is no reference as to whether that compromise was obeyed or not. But the compromise entered in between makes the accounting as above, resulting liability of Rs. 62392/-, and trial Court after this report, proceeded by way of issuing coercive process against applicants. But it was neither a reference made to District Horticulture Officer not a disposal of reference as per provision of above Act. But the compromise entered in between makes the accounting as above, resulting liability of Rs. 62392/-, and trial Court after this report, proceeded by way of issuing coercive process against applicants. But it was neither a reference made to District Horticulture Officer not a disposal of reference as per provision of above Act. Section 25 of said Act makes a provision that amount fixed by District Horticulture Officer, will be recoverable as land revenue and recovery certificate is to be issued to Revenue Officer i.e. District Collector and the same shall be acted upon in the way of recovery of public money as land revenue. No coercive criminal proceeding is to be instituted under above provision. Hence, the very contention, since the beginning, by applicants, was neither adjudged by District Horticulture Officer nor by Magistrate concerned nor by revisional court and all those impugned orders are under abuse of process of law. Hence, for ensuring end of justice, this application has been filed with above prayer. 4. Learned AGA has vehemently opposed the above prayer. 5. From the very perusal of complaint, it is apparent that the same was filed by Karamveer Singh against Chhitar Singh and Tejveer Singh, with accusation of offence of criminal breach of trust. It was specifically accused that potato in two lots were deposited in above cold storage, but the same was sold for personal benefit by accused persons and the money was usurped. For this offence, there was summoning for offence punishable under Section 406 of IPC. This summoning order was challenged before revisional Court of Session Judge, Aligarh, in Criminal Revision No. 19/2018, wherein, after hearing both sides, revision was dismissed. Thereby, impugned summoning order dated 10.10.2017 was confirmed. A proceeding under Section 482 of Cr.P.C. was filed with above contention of Section 25 of Act as above and this Court perusing the admission of act of deposit of potato in above cold storage and legal provision of Section 25 of U.P. Regulation of Cold Storage Act, 1976, passed order dated 7.1.2020, with a direction to trial Court for getting the version of District Horticulture Officer, Aligarh, over above legal proposition and till above exercise an order of protection was given in favour of applicants. Trial Court did exercise and obtained report from District Horticulture Officer, Aligarh, wherein, above outstanding amount of Rs. Trial Court did exercise and obtained report from District Horticulture Officer, Aligarh, wherein, above outstanding amount of Rs. 62,392/-, in favour of complainant against accused persons have been adjudged. 6. The legal proposition of Section 25 of Act, "Dispute regarding compensation to be referred to the Licensing Officer-(1) Every dispute regarding compensation payable by the licensee under Section 24 shall be referred to the Licensing Officer, and subject to the result of appeal, if any, under Section 36, the order of the Licensing Officer shall be final." 7. That is, Section 24 of the Act provides procedure with regard to payment of compensation referred to Licensing Officer and compensation which is payable under Section 24 of the Act. 8. Section 24 of the Act :- "Compensation for loss, destruction, etc. -Except as otherwise provided in this Act, the licensee shall be liable to pay to the hirer compensation for every loss, destruction, damage, deterioration or non-delivery of the goods stored in his cold storage caused by the negligence, misconduct or default on the part of such licensee." 9. That is, Section 24 of the Act provides provision for payment of compensation caused to hirer, by way of loss, destruction, damage, deterioration or non-delivery of the goods stored in his cold storage and such loss destruction, damage, deterioration or non-delivery of the goods, is owing to negligence, misconduct or default on the part of such licensee i.e. it is limited only to the negligence, misconduct or default on the part of licensee and if by such negligence, misconduct or default on the part of such licensee, same damage, loss, destruction or deterioration or non delivery of goods stored in above cold storage is being caused to hirer, then the compensation is to be adjudged under section 25 of the Act, and is with regard to above liability, which falls under Section 24 of the Act. 10. Whereas, for offence punishable under Section 406 of IPC, the criminal mensrea, which makes a criminal breach of trust is punishable under Section 406. 11. 10. Whereas, for offence punishable under Section 406 of IPC, the criminal mensrea, which makes a criminal breach of trust is punishable under Section 406. 11. Section 405 of I.P.C. provides definition of criminal breach of trust as:- "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 wilfully suffers any other person so to do, commits “criminal breach of trust”. " 12. Meaning thereby, for constituting of criminal breach of trust the enstrustment with property or dominion over property is a condition. Other condition is with dishonest misappropriation or conversion to its own use or dishonest uses or dispossess 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 with regard to discharging of such trust. Hence, the initial condition precedent for constituting an offence of criminal breach of trust is, dishonest misappropriation or conversion to its own uses and in the present complaint case, the accusation is of dishonest conversion and sale of potatos for its own use, thereby, usurping price money for such and this criminal breach of trust is punishable under Section 406 of IPC. Hence, this complaint, in the present case was for the offence of criminal breach of trust punishable under section 406 of IPC by way of criminal breach of trust, thereby, usurping price money of potato, hired in above cold storage by accused persons and this criminal breach of trust is not given in category of compensation under Section 24 of Act. Hence, the entire argument relating to procedure under Section 25 of Act is not applicable with the fact of present case. Hence, this proceeding merits its dismissal. 13. Moreso, this Court in exercise of inherent power under Section 482 of Cr.P.C., is not expected to make analytical analysis of evidence and fact of the case, as the same is the question before trial court. Hence, this proceeding merits its dismissal. 13. Moreso, this Court in exercise of inherent power under Section 482 of Cr.P.C., is not expected to make analytical analysis of evidence and fact of the case, as the same is the question before trial court. Apex Court in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767 : 2010 Cr. LJ 3844, Hamida v. Rashid, (2008) 1 SCC 474 , Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781 , as well as in Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296 . 14. However, it is made clear that above findings of this Court will not cause any prejudice in fair trial of this complaint case. Dismissed, accordingly. 15. However, in the interest of justice, it is provided that if the applicants appear and surrender before the court below within thirty (30) days from today and apply for bail, then the bail application of the applicants be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. 16. For a period of thirty (30) days from today or till the disposal of the application for grant of bail, whichever is earlier, no coercive action shall be taken against the applicants. 17. However, in case, the applicants do not appear before the Court below, within the aforesaid period, coercive action shall be taken against them. 18. With the aforesaid directions, this application stands disposed of, accordingly.