TILOKCHAND BAJLA Vs. MOTILAL JHUNJHUNWALA

JUDGEMENT

(1.) BY these two applications the petitioners seek to quash a criminal proceeding started against them. They are being prosecuted under Section 120-B, Penal Code for conspiracy, to commit criminal breach of trust and tinder Section 406, Penal Code for having committed criminal breach of trust. The petitioners in Criminal Revision No. 898 of 1953 are proprietors of the firm Lakshmi Narayan Gouri Shanker at Gaya. The petitioner of Criminal, Revision No. 855 of 1953 is related to the petitioners of the other case. It is said that his sister is married to the petitioner Bishwanath of Criminal Revision No. 898 of 1953, This petitioner has his business at Deoghar. The complainant in this case is Motilal Jhunjhunwala, who is the proprietor of the firm Baijnath Motilal at Deoghar.

(2.) THE facts giving rise to these applications are as follows : THE Textile Commissioner to the Government of India at Bombay used to distribute yarn produced by different mills in India to the different States. THE Cloth and Yarn Controller of Bihar used to distribute the quota allotted to that State to different importers through the Clearing Agents. THE petitioners of Criminal Revision No. 898 of 1953 were the Clearing Agents, and the complainant was one of the importers in respect of Dumka. On 30-1-1948, the State Government allotted, through allotment No. 976, 50 bales of yarn to the complainant from Nagpur Empress Mills. THE total price of these bales amounted to Rs. 23,645. On information being given to tbe complainant, he sent to the Clearing Agents a hundi of Rs. 13,000. This amount was received by the Clearing Agents. On 17-3-1948, another allotment, being allotment No. 1018, was made to the complainant for 78 bales of yam from Nagpur Model Mills, and the complainant again, on getting information, sent a sum of Rs. 9,500 through insured post to the Clearing Agents which was duly received by them. It is alleged that, although the aforesaid Clearing Agents took delivery of the bales in question from the two mills, they did not supply the same to the complainant. On these allegations the complainant filed a petition of complaint, on 1-2-1950, in the Court of the Sub-Divisional Magistrate, Deoghar, who passed an order for summoning the petitioners. "THE petitioners, thereafter, moved this Court in Criminal Revision No. 867 of 1950 for quashing the proceeding which was finally heard on 18-9-1950, and was dismissed as being premature. It was, however, made perfectly clear in the order of this Court that after the evidence is led on behalf of the complainant in support of his case the petitioners will be at liberty to come at any time before this Court for the quashing of the proceeding against them if that evidence does not disclose a prima facie case against them. THE complainant, thereafter, produced evidence and charges under Sections 120B and 406, Penal Code were framed against the petitioners. THEy, thereafter, have again come up to this Court for the quashing of the proceeding on the ground that the evidence adduced in the case did not disclose any prima facie case against them for an offence of criminal breach of trust. THE proprietors of the firm Lakshmi Narayan Gouri Shanker, the Clearing Agents, have filed Criminal Revision No. 898 of 1953, and their relation Tilokchand Bajla has filed Criminal Revision No. 855 of 1953.

(3.) NO doubt, in the present case, the petitioners were holding the yam to be supplied to the importers if they paid its full price. They could, therefore, be said to have held it in trust for the complainant or for his benefit only after payment of its full price. Before that the ownership undoubtedly vested in the petitioners with the possibility of their being divested of that ownership subsequently if within the period prescribed the full price of the yarn was paid by the importers. The ownership in the yarn continued to exist in the petitioners till the period within which the full price had to be paid by the importers expired, and after the expiry of that date, under the terms of the agreement, as already observed, they were entitled to sell the yarn as their own property. The charge of criminal breach of trust, therefore, could not lie in this case.