RAIS AHMED Vs. STATE

JUDGEMENT

(1.) The instant application under Sections 379, 401 and 482 of the Criminal Procedure Code is directed against the order dated 13-8-88 passed in Case No. C/793 of 1984 (TR 219 of 1984) by the ld. Metropolitan Magistrate, 12th Court, Calcutta, convicting and sentencing the accused petitioner under Section 409 of IPC to suffer Rigorous imprisonment for two years and to pay a fine of Rs. 5,000/-, in default, to suffer further Rigorous Imprisonment for one year as well as the order dated 21-2-91 passed in the Criminal Appeal No. 53 of 1988 by the ld. City Session Judge, 7th Bench, Calcutta, affirming the aforesaid order of conviction and sentence.

(2.) The Opposite Party No. 2, who was an employee of M/s. U.B.S. Publishers Distributors Ltd., a leading house of distributors of different kinds of printed books, lodged a complaint on or about 3-4-84 before the ld. Chief Metropolitan Magistrate alleging that the petitioner as well as one S. N. Idris did commit offence under Section 409 read with 34 of Indian Penal Code. The complainant's case was that the petitioner was the sole proprietor of Supreme Clearing Agency and the other accused namely S. N. Idris was the proprietor of another concern called M/s. Diamond Clearing Agency. The accused persons approached the complainant company for appointing them as the company's clearing agent in respect of different consignments arriving at in their name by rail from different parts of the country, on the representation that both of them were carrying on the same business in two different names from the same address but in fact they had been functioning jointly and they jointly prepared to undertake the clearance of any consignment that the complainant might ask them to clear even if such assignment is given in the name of any of them. Relying on such representation, the complainant company engaged the accused persons as its agents for clearing its consignments. In the usual course of business the company received Railway receipt No. 702061 dated 9-3-83 from New Delhi to Shalimar Railway Siding in respect of a consignment consisting of valuable printed books in 33 packages and the complainant entrusted the said accused persons with the task of clearing the aforesaid goods but on or about 15th April 1983, the accused persons delivered 32 packages instead of 33 packages and represented that one package was missing and shortage certificate would be issued by the railway authorities shortly. As the issuance of shortage certificate was being delayed, the complainant approached the railway authorities and came to learn that all the 33 packages were cleared by the accused persons on 15th April 1983. The accused persons have thus committed the offence of criminal breach of trust in respect of one package containing 151 books valued at Rs. 74122.13.

(3.) The 1d. Chief Metropolitan Magistrate, Calcutta took cognizance upon that complaint and was pleased to transfer the case to the Court of Id. Metropolitan Magistrate, 12th Court. After examination of seven witnesses before charge, the Id. Metropolitan Magistrate by his order was pleased to discharge the accused No. 2 namely S. N. Idris and framed charge under Section 409 of I.P.C. against the petitioner. The petitioner was thereafter tried on that charge. The defence case was that the entire consignment was received and delivered by the accused in terms of weights and not in terms of packages. The trying Magistrate by his judgment dated 13-8-88 found the petitioner guilty of the offence punishable under Section 409 I.P.C. and convicted and sentenced him to suffer Rigorous Imprisonment of 2 years and also a fine of Rs. 5,000/-, in default, to suffer Rigorous Imprisonment for a further period of one year.