RAJINDER PRASAD GOYAL Vs. STATE

JUDGEMENT

(1.) The petitioner is the sole proprietor of the firm M/s. G.S. Handling and Commission Agent. On 23.4.1987, M/s. J.K. Cement Works appointed the said firm as their handling agent for their two godowns viz., (i) A-8, Krishna Vihar (Railway Siding at Shakur Basti) and (ii) L-8, Sanjay Market, Samalkha & Shop Nos. 5 to 8, Samalkha. As per agreement between the parties, the accused was required to transport the cement from the railway station to the said. godowns in accordance with the instructions of the Senior Marketing Manager of M/s. J.K. Cement Works posted at Delhi. The accused was also given the contract of loading of cement from the godowns of M/s. J.K. Cement works in the trucks of the buyers or their authorised transporters. In 1987, Mr. S.C. Seth and Mr. V.K. Goel were posted at Delhi as the Senior Marketing Manager and Sales Manager respectively. Both the Officers were responsible for the entire working of the said godowns at Delhi. Mr. S.C. Seth worked in Delhi office upto 31.8.1987 and Mr. V.K. Goel's resignation was accepted on 17.7.1987. As per prosecution case, Mr. S.C. Seth and V.K. Goel entered into a criminal conspiracy with the accused to misappropriate the cement belonging to M/s. J.K. Cement Works in pursuance of which Mr. S.C. Seth and V.K. Goel delivered 60591 bags of cement to the accused for sale in the market. Thereafter, the said cement was sold to various firms and the sale proceeds there of was misappropriated by the accused. On 10.8.1988, Mr. Barry Willmen lodged a written report at the P.S. Sultanpuri. Investigation pursuant thereto culminated in submission of a charge sheet under Sections 120-B/407/420, Indian Penal Code against the accused. On 21.12.1994, the Metropolitan Magistrate directed framing of charges under Sections 120-B/407/409, Indian Penal Code against the petitioner. Aggrieved thereby, the petitioner has come up in revision before this Court.

(2.) The question for consideration is whether the materials collected by the prosecuting agency disclose any prima facie case against the petitioner. It needs to be highlighted that the impugned order reveals that in October, 1987, officers of the Food and Civil Supply Department of the Delhi Administration raided the godown of M/s. J.K. Cement Works at Krishna Vihar, New Delhi and seized certain documents on the basis of which a case FIR No. 233 dated 30.10.1987 was registered at the Police Station Sultanpuri against M/s. J.K. Cement Works and their employees under Sections 3/7 of the Essential Commodities Act. The gravamen of the charge in the said case was that M/s. J.K. Cement Works, in violation of the Cement Control Order, 1982, sold cement to fictitious firms. Learned Counsel for the petitioner vehemently contended that on 10.8.1988, the Assistant Sales Manager of M/s. J.K. Cement lodged the report against the petitioner to counter blast the case registered against M/s. J.K. Cement Works under Sections 3/7 of the Essential Commodities Act. No doubt, this is a relevant circumstance which has got a bearing on the complicity of the accused in this case. In this context, it is relevant to mention that as per the prosecution case, the accused was appointed by M/s. J.K. Cement Works as their handling agent and as such the accused was required to transport the cement from the railway station to the godown mentioned above. The accused was also given the contract of loading of cement from these godowns in the trucks of the buyers or their authorised transporters. According to the administrative instructions issued by the M/s. J.K. Cement Works (at page 303 of the record of the Trial Court) on receipt of the cement at the godowns, the same was required to be taken in account books and the receipt register maintained by the Storekeeper. The Godown Incharge and Store Keeper were directed to ensure that no cement is despatched to any party without D.I. from Senior Marketing Manager/Sales Manager/Marketing Officer or other Officer.

(3.) It is not the case of the prosecution that the accused, after loading the cement at the railway station, did not unload it at the godowns belonging to M/s. J.K. Cement Works or sold it to somebody and misappropriated the sale proceeds thereof. On the contrary, it is the definite case for the prosecution that Shri S.C. Seth, the then Senior Marketing Manager, had instructed his staff to handover any quantity of cement to the accused and issue challans in favour of the parties buying the cement. As noticed earlier, the accused was given the contract of loading of cement from the godowns in the trucks of the buyers or their authorised transporters. Thus, if the accused loaded the cement in the trucks of the buyers or their authorised agents in accordance with the instructions of the Senior Marketing Manager Shri S.C. Seth, his act will not come within the purview of either Section 407 or Section 409, IPC. The reason being that he did so in performance of the contract mentioned above. To constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a directon of law or legal contract, by the accused himself or by someone else which he willingly suffered to do. In the instant case, there was no entrustment of the cement in question to the accused within the meaning of the term as used in Sections 407 and 409, IPC. As noticed above, the cement was entrusted to the Senior Marketig Manager of the J.K. Cement Works posted at Delhi, he was the person directing and controlling the sale of cement at Delhi and by whose instructions the cement was sold to certain firms. It is significant to mention that names of the Senior Marketing Manager and Sales Manager have been shown in column No. 2 of the charge sheet as the evidence against them has been found to be deficient. In these circumstances. the accused, who was merely responsible for loading and unloading the cement, cannot be held liable for the offences punishable under Sections 407/409, IPC.