BANWARILAL AGARWAL Vs. A SURYANARAYAN AND STATE

JUDGEMENT

(1.) These two revisions are directed against the judgment of the learned First Addl. Sessions Judge, Berhampur upholding the conviction and sentence passed under S.409 read with S. 34, I.P.C. against both the accused-petitioners and also under S. 408, I.P.C. against the accused-petitioner V. Tyagarajan. Since both the revisions have been filed against the same judgment and as some of the points involved for determination are identical, they were heard together and are being disposed of by this common judgment.

(2.) The undisputed facts which fall within a small compass are stated as under :- The accused-petitioner Banwarilal Agarwal and his son Binod Kumar Agarwal (another accused since acquitted) carry on business in nylon fishing net twine at Big Bazar, Berhampur town in the name and style of "Susil Kumar Bijay Kumar" and of them Binod placed order for supply of 1200 kg. of nylon fishing net twines with Shri Ram Fibers Limited, Calcutta on 31/01/1984, as per Ext. 1 with a request to send the consignments through the New Howrah Transport Co., Calcutta branch and the relevant documents through the Allahabad Bank/Bijaya Bank, Berhampur. On receipt of such order, Shri Ram Fibere Limited delivered two consignments each containing 14 bundles of nylon fishing net twines to the said Transport Co. under consignment note and L. R. Nos. 01304 and 01305, both dated 2-2-1984 with instruction to deliver them to Susil Kumar Bijaya Kumar of Berhampur at R. Suvani and to despatch the consignee copies together with the invoice, delivery chalan and L.Rs. to the Allahabad Bank, Berhampur. After receipt of the aforesaid documents, the Allahabad Bank, Berhampur sent information to Susil Kumar Bijay Kumar to retire the documents on making full payment but the same was not done. After both the consignments reached R. Suvani Branch of the said Transport Co., accused Binod and his father Banwarilal Agarwal approached the other accused V. Tyagarajan who was then the manager of the aforesaid branch to deliver the consignment under L. R. No. 01304 dated 2-2-1984 valued at Rs. 57,536/ - without retiring the relevant documents from the Allahabad Bank, Berhampur. When accused V. Tyagarajan declined to release the goods without receiving the consignee copy, they returned. Again on 22-2-1984, accused Banwarilal approached accused V. Tyagarajan and requested him to deliver at least the consignment under L. R. No. 01304 dated 2-2-1984 promising that he would retire the relevant documents from the Allahabad Bank Berhampur on making full payment and would deposit the consignee copy on 25-2-1984. Notwithstanding specific instructions to him by the Calcutta office of the Transport Co. not to release the consignments without obtaining the consignee copies from Susil Kumar Bijay Kumar, accused V. Tyagarajan directed his clerk-in-charge of the godown to release the consignment under L. R. No. 01304 dated 2-2-l984 but when the clerk-in-charge of the godown declined to deliver the said consignment in view of the specific instruction of the Calcutta Office, accused V. Tyagarajan issued a letter, Ext. 16/1 to the said clerk directing him to release the said consignment. In view of such written direction, the clerk-in-charge of the godown having released the consignment under L. R. No. 01304 dated 2-2-1984, accused Banwarilal received the same with a promise to deposit the consignee copy on or before 25-2-1984 (vide Ext. 17). The relevant documents having not been retired the Allahabad Bank authority brought that fact to the notice of Shri Ram Fibers Limited, Calcutta and ultimately the, latter instructed the Transport Co. to direct his Branch Manager R. Suvani branch to re-book both the consignments to Calcutta branch. Being advised by the Calcutta Office, the remaining consignment under L. R. No. 01305 dated 2-2-1984 was re-booked to Calcutta office. At that point of time, the Transport Co. at Calcutta came to know that the other consignment under L. R. No. 01306 dated 2-2-1984 valued at Rs.57,836/- had been delivered to Susil Kumar Bijay Kumar of Behrampur without the consignee copy or without receiving any cash payment. The Calcutta Office of the Transport Co. ultimately made good the loss to Shri Ram Fibers Limited and finding that Susil Kumar Bijay Kumar and their Branch Manager, R. Suvani had defrauded them, one of the R. B. Officers lodged a first information report at the concerned police station, but since no action was taken for a long time, A. Suryanarayan, a partner of Shri Ram Fibers Limited having lodged a complaint, both the accused-petitioners and Binod Kumar Agarwal faced trial in the court of the Judicial Magistrate First Class, Berhampur. All the three accused persons were charged under S. 420 read with S. 34, I.P.C. and accused V. Tyagarajan was further charged under S. 408, I.P.C.

(3.) All the accused persons denied having committed any offence. Accused Binod took the stand that except placing order for supply of 1200 kgs. of nylon fishing net twines with Shri Ram Fibers Limited he having played no other role was not liable for the charge levelled against him. Accused Banwarilal admitted having released the consignment with promise to deposit the consignee copy in the R. Suvani Branch of the Transport Co. but according to him, he could not release the consignee copy from the Allahabad Bank, Berhampur on account of financial stringency. According to him therefore, his liability if any, was civil in nature. Accused V. Tyagarajan admitted having delivered the consignments to accused Banwarilal Agarwal on his promise to deposit the consignee copy by 25-2-1984 after releasing the same from the Allahabad Bank, Berhampur on full payment. According to him, he had to take such a course for the future business prospect of the company in which he was working and not with any mala fide intention. He has examined himself in support of his plea.