CHANDIGARH ADMINISTRATION, CHANDIGARH Vs. MANOHAR LAL MATHUR

JUDGEMENT

(1.) THE accused respondent a Foreign Scales Officer hi the Haryana State Small Industries and Export Corporation Ltd., Chandigarh, was charged that in the year 1968 he was entrusted with cash of Rs. 6400/ - and committee criminal breach of trust in respect of the same. He was acquitted by the Chief Judicial Magistrate, Chandigarh, vide his order dated 11th November, 1974. The Chandigarh Administration challenged the order of acquittal by tiling the appeal.

(2.) THE Haryana State Small Industries and Export Corporation Ltd., Chandigarh, obtained an export order of leaf springs for export to Tehran. The first consignment of about 20 metric tons of leaf springs was to be shipped by 10th March, 1968. The goods were subject to quality inspection by the Export Inspection Agency, Government of India, at Bombay M/s Modi Industries, Malerkotla, despatched 19 metric tons of leaf springs to M/s Pusalkar and Company, Bombay. On 22nd February, 1968 the shipping agents informed the Corporation that the Export Inspection Agency had rejected the goods on the plea that they were cot in conformity with the requirements of Automobile Spare Components (Quality Control and Inspection) Rules, 1961. The accused who was then working as a Foreign Sales Officer of the Corporation was deputed by Shri L.R. Mago, Managing Director of the Corporation, to go to Bombay and got clearance for the goods. The accused obtained the certificate of goods being export -worthy and the same were shipped to Tehran. The accused informed the Corporation that the export -worthiness of the goods could be secured by replacing four metric tons of defective goods by fresh goods purchased by him from the local market at a cost of Rs. 6400/ -. He was accordingly paid Rs. 6400/ - by the Corporation on the condition that he would submit necessary accounts. In August, 1968, Managing Director Shri L.R. Mago was transferred and Shri R.S. Verma took over as his successor. Shri Verma conducted enquiry into the deal of export of leaf springs and he was informed by Shri Raj Kumar Modi of M/s Modi Industries, Malerkotla that he had received a sum of Rs. 3000/ - from M/s Pulsalkar and Co. already and he had been promised the payment of the balance amount shortly. Shri Verma was further informed that in fact no replacement of goods was made and no part of it was rejected by the Expert Inspection Agency. On these disclosures Shri R.S. Verma lodged the report Exhibit PA dated 22nd January, 1969, and on that basis first Information Report was registered at Police Station, Central, Chandigarh, on 27th January, 1969. After necessary investigation, the accused was sent up to face his trial. He was charged under sections 409 and 420 of the Indian Penal Code. The prosecution examined 11 witnesses. When the accused was examined he denied the prosecution allegations and examined one witness besides himself in his defence. The Chief Judicial Magistrate, after scanning through the evidence on record, acquitted the accused as indicated above and hence this appeal.

(3.) THE question now is : Is the respondent guilty of alleged criminal breach of trust on the facts and in the circumstances herein before stated ? After hearing the learned counsel for the parties and going through the evidence adduced in the case 1 find no reason to interfere with the order of acquittal passed by the learned Magistrate. It is borne out from the record that the respondent had purchased goods of the value of Rs. 6,00/ - from one Shri G.D. Malhotra of Rapid Engineering, Bombay, The plea taken by the respondent was that he submitted a receipt to the Corporation after about a week of the receiving of the sum of Rs. 6400/ -. He placed on record a duly sworn affidavit of Shri G.D. Malhotra mark 'X' stating that on 28th February 1968 he (Shri Malhotra) had sold four tons of leaf speings to Manohar Lal Mathur and had received the amount in cash and a cash memo No. 445 was given to him. It is common ground between the parties that the sum of Rs. 6400/ - as price of the goods alleged to have been replaced by the respondent and also a sum of Rs. 1000/ - which was spent on the journey of the respondent from Chandigarh to Bombay, were debited to the Modis and the Corporation had not paid anything out of that amount to the Modis. It is also an admitted fact that the Modis never put in any demand for Rs. 6400/ - from the Corporation. In order to appreciate whether the plea taken by the respondent is probable or not, the testimony of Shri R.S. Verma (P.W. 1) Shri L.R. Mago (P.W. 2), Shri Rajinder Kumar Goel of M/s Modi Industries, Malerkotla (P.W. 7) and Shri Chander Kant Shanker (P.W. 11) has to be minutely scrutinised. Shri Verma stated in cross -examination that he did not know if Modis had claimed any amount from the Corporation. He could not say if the Corporation had debited a sum of Rs. 6400/ - to Modis Shri Verma further stated that the respondent was asked several times to deposit the money but he failed to do so It is to be noticed here that not a single document could be produced by the prosecution to show if any demand was made from him to repay the amount to the Corporation or to render the accounts. Shri L.R. Mago stated that he did not know whether the respondent produced any receipt of payment in the office of the Corporation. In cross -examination the witness admitted that a sum of Rs. 6400/ - was debited to the account of Modis and the Corporation received the price of the goods from Tehran. Rajinder Kumar partner of M/s Modi Industries, Malerkotla stated in cross examination that he did not know if a sum Rs. 6400/ - was debited in their account by the Corporation or that they had not received the balance amount so far from the Corporation, Shri Chander Kant Shanker is the Expert Manager of M/s S.R. Pusalkar and Co., Bombay and the Shipping of agent of the Corporation He stated that it was not within his knowledge as to whether the leaf springs of the value of Rs. 6400/ - were purchased or not by the respondent. In cross -examination he stated that he did not remember if the respondent requested him for replacement of the goods which stood rejected. From this evidence of the prosecution it is difficult to record a finding that the respondent is guilty of Criminal breach of trust It must be remembered that in cases of criminal misappropriation the onus lies on the prosecution to prove - not only that money was paid to the accused in trust but also that he did not apply for the purpose for which it was given The fact that the Modis did not lay their claim for the unpaid amount till the filing of a complaint against the respondent is a pointer to the inference that they had received the amount in dispute. Under these circumstances it is impossible to hold that the prosecution has discharged the (sic) which rests on it of affirmatively proving the alleged misappropriation of money by the respondent.