GIRRAJ PRASAD Vs. STATE OF RAJASTHAN & ANOTHER

JUDGEMENT

(1.) I have heard the impugned order dated 16.10.1996 passed by the learned Civil Judge (Junior Division) -cum-Judicial Magistrate, Deegod in Criminal Case No. 733/1996 whereby the accused was acquitted of the offence punishable under section.

(2.) The case of the prosecution in short is that on 7.5.1982 an order was placed by the complainant Girraj Prasad on Chauthmal accused-respondent No. 2 for supply of 10 bags of manure 'DAP Baroda Fertilizer' of the approximate value of Rs. 1900.00. The allegation against the accused is that after receiving payment of the above amount, he had refused to make supply of the commodity, i.e. the Fertilizer to the complainant. Consequently charge-sheet was filed by the prosecution against the accused for the commission of offence under Sec. 406 Penal Code before learned Judicial Magistrate, Deegod on the basis of complaint of complainant Girraj Prasad. Prior to the occurrence an FIR was lodged with the concerned police station that on 7.5.1982 when the accused was going to Kota for purchasing the aforesaid commodity in the presence of three witnesses namely Moolchand, Kesharilal and Heeralal. Upon the accused having refused to make the supply of the goods or to refund the payment of Rs. 1900.00 which had already received in advance, the complainant filed a complaint under section 406 Penal Code against accused Chauthmal. The learned Magistrate directed to police to investigate the matter in accordance with provisions of section 156(3) Cr.PC. After the investigation the Police found that the accused had committed the offence of criminal Breach of Trust punishable under section 406 Penal Code and filed the charge-sheet before the said court for proceeding against the said accused in accordance with law. The trial court accordingly charged the accused for the offence punishable under section 406 Penal Code to which the accused pleaded not guilty and claimed trial. To substantiate the charge, the complainant examined as many as 9 witnesses. The trial court after recording the relevant evidence of both complainant and of the accused under section 313 Crimial P.C. recorded the findings of acquittal by observing that when the prosecution had miserably failed to prove the charge that Rs. 1900.00 were given to the accused for supplying 10 bags of fertilizer, and since ingredients of the offence of criminal breach of trust as defined under section 405 Crimial P.C. were not established, accused could not be punished for the said offence under section 406 IPC.

(3.) Prima-facie, I am of the considered view that before cognizance is taken by the trial court against the accused in respect of offence of criminal breach of trust under section 405 IPC, at the outset, entrustment of the property or domain over the same as defined under section 405 IPC, has got to be established by the complainant on the basis of the preliminary evidence recorded by the trial court before the accused can be charged and tried for the said offence. Admittedly, the payment was made allegedly by the complainant of Rs. 1900.00 to the accused without getting any receipt executed in lieu thereof and even if it be assumed that complainant, had made the payment of said amount to the accused as far as his case, he had neither got any receipt in lieu of the payment of the said amount nor he could prove the same by any other reliable, cogent or satisfactory evidence proved by relieable evidence of the witnesses in whose presence the said payment was made to the accused.