BIJOYANAND PATNAIK Vs. K A A BRINNAND

JUDGEMENT

(1.) This Rule is for setting aside an order dated the 24th April, 1968 passed by Sri K.J. Sengupta, Chief Presidency Magistrate, Calcutta, holding that a prima facie case was made out against the accused-petitioner, Sri Bijoyanand Patnayah, and framing charges against him under Section 406 I. P. C. on two counts, in case No. C/1023 of 1967 and for quashing the said proceedings.

(2.) The facts leading on to the present Rule are chequered but can be put in a short compass. The prosecution case brings to light an unfortunate case of a friendship foundering on two airships. The bone of contention between the two parties, both of whom are respectable and were erstwhile friends, is two aircrafts viz. VT-CRA & VT-CXR, which originally belonged to M/s. Indamer and Company (P) Limited, Customs House Road, Bombay. The prosecution case inter alia is that Capt. Brinnand (P. W. 4) the husband of the present complainant, Mrs. K.A.A. Brinnand (P. W. 1), purchased the abovementioned two aircrafts on the basis of an agreement of hire-purchase (Ext. 4), entered into on the 26th October. 1954 for a sum of Rs. 3,42,300/-payable in instalments. It was agreed that on payment of the abovementioned amount in full, Capt. Brinnand will become the absolute owner of the aircrafts. The final payment was made on the 6th August, 1965 with the sum of Rs. 20,000/-which was the amount then due, to M/s. Indamer and Company (P) Ltd. through one of its directors, Mr. J.P. Koszarek as per Ext 6. Capt. Brinnand however having no operating licence or permit standing in his name for operating the aircrafts purchased by him as per the terms of the deed of agreement mentioned above, another agreement was entered into between him and M/s. Indamer and Company (P) Limited on the basis of a letter (Ext. 7), whereby the latter company allowed its chartered permit to be used by Capt. Brinnand on payment of a licence fee of Rs. 20,000 per year. The prosecution case further is that in the absence of an operating licence, the ownership of the two aircrafts also could not be changed from the name of M/s. Indamer and Co. (P) Limited to Capt Brinnand's name in the certificate of registration, kept in the Civil Aviation Department, Govt. of India. The licence pi M/s. Indamer and Company (P) Limited in the meanwhile was cancelled by the authorities because of some irregularities in the working of the said company and Capt. Brinnand out of his anxious consideration that the two aircrafts purchased by him did not remain idle, came into contact with Shri Bijoyanand Pattanayak for making arrangement for the operation thereof, on the strength of the operating licence or permit for non-scheduled flight of the aircrafts standing in the name of the Kalinga Air Lines, whereof Sri Pattanayak was the proprietor. An agreement (Ext. 11) accordingly was executed on the 1st March, 1958 between Sri Pattanayak and Capt. Brinnand on certain terms whereby Sri Pattanayak allowed Capt Brinnand to use the operating licence, standing in the name of the Kalinga Air Lines, without taking any profit as the said licenses were remaining idle. As the two aircrafts stood in the name of M/s. Indamer and Company (P) Limited in the register of the Civil Aviation Department, Capt. Brinnand made arrangements to transfer the same to the Kalinga Air Lines (P) Limited, which in the meanwhile had come into existence. M/s. Indamer and Co. (P) Limited, agreed to allow the Kalinga Air Lines (P) Ltd. on the basis of an agreement (Ext. 12) dated the 1st March, 1958, to use six of their aircrafts including VT-CXR. With regard to the aircraft VT-CXR, it was agreed that the Kalinga Air Lines (P) Limited would not have to pay anything for its user. On the same date M/s. Indamer and Company (P) Limited wrote a letter to M/s. Kalinga Air Lines (P) Limited expressing their willingness to sell the Dakota aircraft, VT-CRA for Rs. 40,000. No consideration, however, was passed in the alleged sale of the said Dakota aircraft VT-CRA as would be borne out by Exts. 13 and 34 and it was merely a paper transaction. In order to produce the aircraft before the Director of Civil Aviation at New Delhi for the transference of the name of the owner in respect of the same, the documents were required for allowing the party to use the operating licence or permit which stood in the name of the Kalinga Air Lines, subsequently changed to Kalinga Air Lines (P) Limited. In course of time, on the 12th April, 1960, Capt. Brinnand was authorised to deal with all matters belonging to the Kalinga Air Lines (P) Limited as is evident from a resolution (Ext. 15) passed at a meeting of the Board of Directors of the said company. Ext. 17 is an agreement dated the 23rd May, 1960 between M/s Indamer and Company (P) Limited on the one hand and M/s Kalinga Air Lines (P) Limited, represented by Capt. Brinnand on the other, described as the hirer, and it shows that three aircrafts belonging to M/s Indamer and Company (P) Limited were lent to the Kalinga Air Lines (P) Limited for their use and that the hire charges of those three aircrafts being VT-DGR, VT-DGX and VT-DFJ were fixed at a sum of Rs. 12,37,500 for three years. This was also described by the prosecution to be a paper transaction. Capt. Brinnand worked in the Kalinga Air Lines (P) Limited upto 10th August, 1967 and thereafter cut off all connections with the said organisation and called upon Sri Pattanayak to return back his aircrafts VT-CRA and VT-CXR which were entrusted with him. On Sri Pattanayak's refusal to do the same, the petitioner filed a petition of complaint before the learned Chief Presidency Magistrate, Calcutta on the 17th April, 1967 against the two accused persons viz., Mr. 3, P. Koszarek and Sri Bijoyanand Pattanayak, under Section 406, I. P. C. The complainant was examined by the learned Chief Presidency Magistrate, Calcutta on the 17th April, 1967 and the case was sent for judicial enquiry by Sri A. Sengupta, Presidency Magistrate, 5th Court, Calcutta, fixing 1-6-67 for report. The learned enquiring Magistrate thereafter recorded evidence and ultimately submitted a report, holding that there was a prima facie case under Section 406 I. P. C. against the accused No. 2, Sri Bijoyanand Pattanayak. The learned Chief Presidency Magistrate, Calcutta, thereupon by his order dated the 7th June, 1967, issued process against Sri Bejoyanand Pattanayak under Section 406 I. P. C. 9 witnesses thereafter were examined on behalf of the prosecution to unfold the occurrence and several documents were proved both on behalf of the prosecution and the defence and as a result of the trial the learned Chief Presidency Magistrate by his order dated the 24th April, 1968 held that a prima facie case was made out for framing charges against the accused-petitioner and he accordingly framed against him charges under Section 406 I. P. C. on two counts but he rejected, however, the prayer made on behalf of the complainant for issuing process against the co-accused Mr. Koszarek, on the ground of a purported conspiracy between the two accused, for a criminal breach of trust in respect of the two air-crafts. The said order has been impugned and forms the subject matter of the present Rule.

(3.) Mr. Ajit Kumar Dutt, Advocate (with Mr. Milan Kumar Banerjee, Barrister-at-law, Mr. Amiya Kumar Mukherjee, Advocate and Mr. Birendra Nath Banerjee, Advocate) appearing on behalf of the accused-petitioner Sri Bijoyanand Pattanayak in support of the Rule, has made an eight-fold submission. The first contention of Mr. Dutt relates to jurisdiction and goes to the very root of the case. Mr. Dutt submitted that neither entrustment nor conversion having taken place within the territorial jurisdiction of the learned Chief Presidency Magistrate's Court, the present proceedings are bad in law and without jurisdiction and as such should be quashed. The second contention of Mr. Dutt relates to procedure and is that an erroneous view of Section 254 of the Code of Criminal Procedure having been taken, the resultant proceedings are bad and repugnant. The third contention of Mr. putt is about the inordinate delay in lodging the present complaint, ten years after the incident and six years after the civil suit. The fourth point urged by Mr. Dutt relates to the merits. Mr. Dutt has submitted in this context that the petition of complaint does not disclose any criminal offence, far less offence under Section 406 I. P. C. No entrustment within the meaning of Section 405 I. P. C. has been alleged in the petition of complaint and there is also no averment regarding the delivery of the aircrafts in Calcutta or of conversion thereof, in the said place. The fifth contention of Mr. Dutt is that the charge of criminal breach of trust is not sustainable on the evidence on record and in this context he referred to the evidence of P. Ws. 1 and 4 as also the averments made in the petition of complaint. Mr. Dutt's sixth submission relates to the pendency of the civil suit and its effect upon the present criminal proceedings. He contended that at best the dispute is one of civil nature and should properly be determined in a different forum. Mr. Dutt next contended that the petition of complaint being based upon a suppression of material facts and the processes having been issued on the said basis, the present proceedings are not maintainable in law. The eighth and the last submission of Mr. Dutt is that neither the complainant nor her husband is the competent person to institute the present criminal proceedings inasmuch as, amongst others, the husband, Capt. Brinnand is not even the registered owner of the two aircrafts. In this context Mr. Dutt referred to Sections 5 and 33 of the Indian Aircrafts Rules, 1937. Mr. J. P. Mitter, Counsel (with Mr. Promode Ranjan Roy, Advocate^ appearing on behalf of the complainant-opposite party, Mrs. K. A. A. Brinnand, contended in the first instance that the first point in the nature of a preliminary objection raised by Mr. Dutt as to the jurisdiction is more technical than real and is not warranted upon ultimate analysis. In view of the averments made in the petition of complaint as also the statements made in the evidence, the proceedings are quite competent and within jurisdiction. Mr. Mitter submitted in this connection that neither the entrustment nor the conversion as alleged, having taken place outside the territorial jurisdiction of the learned Chief Presidency Magistrate's Court, there is no bar in law to the maintainability of the present proceedings in the said court. Mr. Mitter next contended that there is no defect in procedure as alleged or at all and that there has been no non-conformance to the provisions of Section 254 of the Code of Criminal Procedure. The learned Magistrate has not overlooked the statements made by the prosecution witnesses in cross-examination in framing the charges and the same would be evident from the findings arrived at in the judgment itself. Mr. Mltter's third submission relates to the objection raised on behalf of the accused-petitioner to the maintainability of the present proceedings on the ground of inordinate delay. He submitted that the said delay is not for a period of ten years as alleged and that it is due to an attempt to settle the matter in dispute because of the friendship that existed originally between the two parties. In this context, he further urged that there being no limitation to the institution of a criminal proceedings, the delay alleged is not in any way fatal to the same. Mr. Miner's fourth contention is that the submissions made by Mr. Dutt relating to the merits of the case are premature and that the statements made in the petition of complaint do disclose a criminal offence while the evidence adduced by the material prosecution witnesses does make out the offence of criminal breach of trust as charged. Mr. Mitter submitted in this context that both entrustment and dishonest conversion have been proved by cogent evidence as having taken place within the jurisdiction of the court of the learned Chief Presidency Magistrate Calcutta. In this context for establishing entrustment, Mr. Mitter referred to Exts. 9, 11, 12, 13, 17, 18, 21, 22, 27 and 38 as also to the evidence of P. Ws. 4 and 9. As to the sixth submission of Mr. Dutt regarding the effect of the civil suit on the present criminal proceedings, Mr. Mitter submitted that both the accused are not parties thereto and the relief prayed for is also different. In any event, it was contended, that there is no bar in law to such an institution. Mr. Mitter next contended that there has been no suppression of material facts by the complainant either in the petition of complaint or in the evidence, as alleged or at all and that the complainant had been merely trying her utmost to establish the lawful claim of her husband, and that the resultant proceedings are but an aggrieved person's odyssey in quest of his rights. Mr. Mitter lastly contended that the objection raised by Mr. Dutt to the locus standi of the present complainant or her husband to institute the criminal proceedings is clearly unfounded inasmuch as the evidence on record would establish that Capt. Brinnand is the owner of the two aircrafts. To prove the same, Mr. Mitter referred to the evidence of P. Ws. 1, 4 and 6 and also exhibits 4, 5, 5/1, 6, 7, 18, 31 and 32. Mr. Mitter in this context referred also to the provisions of Sections 19 and 33 of the Sale of Goods Act and certain circumstances wherefrom the knowledge of the accused regarding the ownership of Capt. Brinnand might reasonably be inferred. Besides meeting the points raised by Mr. Dutt as above, Mr. Mitter also made a broad submission that the quashing of a criminal proceeding is an extraordinary procedure and should not be resorted to in the facts and circumstances obtaining in the present case. In this context Mr. Mitter further urged that the claims of aggrieved persons may not be scotched on technical grounds at an early stage, instead of being determined by a full-fledged trial.