C.S. UMRALKAR Vs. RAJKUMAR AGARWAL

JUDGEMENT

(1.) THIS is an appeal filed by the original complainant, who is the manager of a firm of Clearing Agents named M/s. S.R. Pusalkar and Co. with the leave of the Court, against the acquittal of the three accused persons who are partners of the firm of M/s. Carriers Corporation of India doing business in the transportation of goods, by the learned Presidency Magistrate, 34th Court, Vikhroli, Bombay, of the offence of criminal breach of trust as carriers under Section 407 of the Indian Penal Code. The facts necessary for the purpose of this appeal are quite simple. M/s. Pusalkar and Co. were appointed as Clearing Agents for the State Bank of India at the material time, and in that capacity, on August 28, 1970 they handed over three drums of Cobalt Oxide at the office of M/s. Carriers Corporation of India for being transported to Sonapet and delivered there to the consignee, who was also stated to be the State Bank of India. A delivery chalan was given by an employee of the accused, for the said goods when the same were delivered at the office of M/s. Carriers Corporation of India which was followed the next day by a lorry receipt signed and issued by one Verma, also an employee of the said Carriers Corporation of India. The goods, however, did not reach the consignee, and when M/s. Pusalkar and Co. inquired about the same of M/s. Carriers Corporation of India, they were told that no such goods had been received by their firm and that the lorry receipt had been issued 'by mistake'. On that, a criminal complaint was filed and a charge was framed against the three accused as partners of M/s. Carriers Corporation of India under Section 407, Indian Penal Code. The learned Presidency Magistrate, 34th Court, Vikhroli, Bombay, by his judgment dated February 15, 1973, however, acquitted all the three accused persons on the ground that neither entrustment nor misappropriation had been proved against them. It is against that order of acquittal that the original complainant has with the leave of the Court, filed the present appeal.

(2.) THE appellant's case in this appeal is that, in view of the lorry receipt No. 934 dated August 29, 1970 (exh. G) which has been produced and duly proved in the trial Court, entrustment to the firm of M/s. Carriers Corporation of India and, therefore, to its three partners, by the goods being handed over to an employee of that firm, has been proved. It is further contended on behalf of the appellant that once entrustment to the three accused is proved, it is not necessary for the prosecution to prove anything more and, in the absence of any explanation by the accused persons in regard to their dealing with the goods, an inference of criminal misappropriation should be drawn. In support of that propsition, reliance was placed on the decision of the Supreme Court in the case of J.M. Desai v. State of Bombay. : [1960]3SCR319

(3.) WHEN the goods did not reach their destination and inquiries were made, and a notice addressed to M/s. Carriers Corporation of India by M/s. Pusalkar and Co., M/s. Carriers Corporation of India by their letter dated April 27, 1971 exh. C. stated in clear terms that the goods had never been received by their firm and that the lorry receipt appears to have been issued by mistake without getting the goods in their godown. They further requested Pusalkar and Co, themselves to make inquiries as to who had delivered the said goods and at which godown. In the course of the statements made in answer to questions put to them under Section 342 of the Code of Criminal Procedure, 1898, accused Nos. 1 and 3 have stated that they did not look after the business of M/s. Carriers Corporation of India, though they were partners in that firm. Accused No. 2 has, however, in the course of his statement, denied that the three drums of Cobalt Oxide in question were received by his firm and has stated that witness Verma had played a fraud in respect of the said goods, the receipt being usually prepared in their firm by the person who received the goods.