HANUMAN MAL SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the Bihar State Financial Corporation.

(2.) For the purpose of deciding the issue arising in this case it is not necessary to go into details except the fact that the aforesaid criminal case was lodged by the Assistant Manager of Bihar State Financial Corporation, Purnea office with an allegation that for taking loan the petitioner as a promoter of M/s Boring Material Supply Agency and Engineering Works had mortgaged the entire land and building as well as plant and machineries with the Corporation which had entrusted the plant with machineries and building to the petitioner with a direction to run the industrial unit and to refund the amount of loan along with interest to keep proper control upon the plant, machineries, land and building which have been hypothecated. Further allegation is that on enquiry three machines worth Rs 36, 890/- were found to have been removed from the mortgaged premises without intimation and the petitioner on being asked failed to give any explanation for the machines not found at the premises. On such allegation a case for criminal misappropriation and breach of trust 3 under 409 of the Indian Penal Code was lodged and investigated by the police. Upon submission of charge sheet cognizance was taken and thereafter the petitioner, for the purpose of anticipatory bail offered to pay the value of removed machines. On such undertaking he was granted privilege of anticipatory bail and it is his case that he deposited the amount of Rs. 36,890/- and was then released on anticipatory bail. Thereafter in course of trial an application was filed on behalf of the petitioner for discharge on the ground that no offence is made out under section 409 of the I.P.C.. Such prayer has been rejected by the impugned order dated 12-8-98.

(3.) Learned counsel for the petitioner placed reliance upon a judgement of a learned Single Judge in the case of Hari Prasad Nathani v. the State of Bihar,1987 PLJR 545 in support of his contention that for the purpose of sections 405 and 406 which are relevant in this case also, the legal position was examined in that case and it was held that hypothecation of goods does not have the effect of transferring any interest in the property in favour of hypothecatee and 4 possession also remains with the hypothecator hence, Section 406 of the I.P.C. which provides for punishment for criminal breach of trust cannot apply in the case of removal or sale of hypothecated goods by the hypothecator without obtaining consent of the hypothecatee.