KANHAYALAL BAID Vs. RAJKUMAR AGARWAL

JUDGEMENT

(1.) The 3rd accused in C. C. No. 63 of 1980 on the file of the Judicial I Class Magistrate, Cochin, has filed this petition under S.482 of the Code of Criminal Procedure (for short the Code) to quash the proceedings.

(2.) The respondent herein filed a private complaint which was taken on file as C. C. No. 63 of 1980 by the Judicial First Class Magistrate, Cochin. Four persons were shown as accused in the complaint. The 1st accused is the proprietor of Western Carriers, which is described as a common carrier in this petition. The Head Office is at Calcutta. The 2nd accused is the Manager of the Calcutta Office of the Carrier. The 3rd accused is the Manager of the Cochin Office of the Carrier and the 4th accused is the New Delhi Manager of the Carrier. The allegations in the complaint can be summarised as follows. The complainant entrusted certain goods shown in the schedule (13 consignments, two of which were entrusted on 13-9-1977 and the rest on 10-1-1978) at Cochin to the 3rd accused for carriage and safe delivery against presentation of consignee copies of Lorry Receipts at New Delhi by the consignees. The Carriers are bound in law to deliver the cargo on surrender of the consignee copies of lorry receipts. The consignee copies were sent through Central Bank of India and negotiated through M/s. Gandhi Sons, Cochin. But the lorry receipts were not honoured by the consignees with reference to the 13 items in the schedule. There were three different consignees. The complainant through his representatives demanded delivery of the cargo by presenting all the lorry receipts to the 4th accused. But delivery was not made. The complainant again asked for delivery from the 4th accused through the Notary Public of Delhi without any success. The accused jointly and dishonestly misappropriated or converted to their own use the goods in the 13 consignments of the total value of Rs. 1,07,400/- and thereby committed criminal breach of trust. They have fraudulently disposed of the goods in violation of law and thereby made unlawful profit for themselves and caused illegal loss to the complainant. In order to cover their own fraud and criminal breach of trust, they have raised false, illegal and untenable contentions in writing while verbally promising to settle the matter by making good the losses to the complainant. The consignments were insured with the Oriental Fire and General Insurance Co. Ltd. The accused as well as the insurer were promising to settle the matter by reimbursing the losses incurred by the complainant. But they have failed to do so. Hence the complaint was filed alleging offences punishable under S.407, and 193 IPC read with S.34 IPC.

(3.) A careful reading of the complaint is sufficient to show that the complaint alleges all the ingredients of an offence under S.407 read with S.34 IPC. Specifically, I may refer to Para.5 of the complaint which deals with the mens rea of the offence. Therefore, it cannot be said that the averments in the complaint do not disclose an offence under S.407 IPC. I may also say that the same is not the position with reference to the offence under S.193 IPC.