Madhya Pradesh High Court
Krishna Mohan Agrawal Alias Guddu vs The State Of Madhya Pradesh on 24 August, 2017
1
Cr.R.No. 692/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB : SHEEL NAGU, J.
Cr.R. No. 692/2017
Krishan Mohan Agrawal
Vs.
State of M.P.
_____________________________________________________
For petitioner
Shri R.K. Sharma, Sr. Advocate with Shri V.K. Agarwal, Advocate
for the petitioner.
For Respondents
Shri J.M. Sahani, Public Prosecutor for the respondent/State.
___________________________ ________________
WHETHER REPORTABLE : Yes No
Law Laid Down: Framing of charge precisely mentioning the
offence which in specific terms prescribes punishment for the
same and not any other generic or approximate offence which
may in generic terms prescribe punishment for the offence
alleged. Charge framed u/S 409 IPC does not relate to breach
of trust by a warehouse keeper, which offence is exclusively
punishable u/s 407 IPC. Thus, charge for breach of trust by
warehouse keeper framed u/S 409 IPC is not sustainable.
The trial Court directed to frame the charge u/S 407 IPC
instead.
Significant Paragraph Numbers: Para(s) 6.3, 7 & 9 to 10.1
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Cr.R.No. 692/2017
O R D E R
(24.08.2017)
1. The revisional powers of this Court u/S 397 read with Sec 401 of Cr.P.C. are invoked assailing the order of framing of charge dated 04.07.2017 passed by the 1 st Additional Sessions Judge, Sironj Distt. Vidisha in S.T. No. 43/2017 against the petitioner u/S 409 and 420 of IPC.
2. Learned counsel for the rival parties are heard on the question of admission.
3. Learned counsel for the petitioner has raised two fold submissions; (i) The allegations contained in the chargsheet do not disclose presence of essential ingredients to constitute an offence punishable u/S 409 and 420 of IPC (ii) Since petitioner is the owner of the warehouse, the charge u/S 409 of IPC which does not relate to a warehouse keeper cannot be framed against the petitioner. It is further contended that the petitioner however can be charged u/S 407 of IPC.
4. Brief facts giving rise to the present case are that 50 individuals who were farmers lodged a complaint with the police Station, Sironj Distt Vidisha vide Crime No. 144/2015 on 14.05.2015 alleging that they had entrusted their foodgrains of different variety, quantity and value as detailed in the FIR with the petitioner by keeping the same in his godown on certain agreed charges, for which a receipt duly signed by the petitioner was issued which was pledged by them with respective banks as security for loan borrowed by those persons. It is further submitted that the principal amount of loan alongwith the interest was duly repaid to the bank and when they approached the warehouse to get possession of their foodgrains, they found 3 Cr.R.No. 692/2017 that their food grains were missing which impelled them to lodge the FIR alleging breach of trust and cheating on the part of the petitioner. Prosecution conducted investigation and filed chargsheet containing statements of various complainants, which were implicative in nature qua the petitioner.
5. At the very outset, it requires to be seen whether at this stage of framing of charge, prima facie offence exists for satisfying the essential ingredients constituting the offences alleged.
5.1 The offence of breach of trust is defined u/S 405 of IPC which is reproduced below for convenience and ready reference:
405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
1[Explanation 2[1].--A person, being an employer 3[of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used 4 Cr.R.No. 692/2017 the amount of the said contribution in violation of a direction of law as aforesaid.] 5.2 From the above, it is evident that the essential ingredients for constituting offence of breach of trust is entrustment of property, its dishonest misappropriation leading to loss. 5.3 The factum of entrustment of food grains is duly supported by various statements of complainants and as well as the receipts issued by the petitioner and therefore the first ingredient of entrustment stands satisfied.
5.4 Thereafter comes the ingredient of dishonest misappropriation. In this regard, the allegation by the prosecution is that complainants went to take possession of their foodgrains entrusted to the petitioner who had kept the same in his godown, the foodgrains were not found in the godown and therefore dishonest misappropriation is alleged. Prima facie, this ingredient also stands satisfied as the prosecution has produced enough material to satisfy the factum of dishonest misappropriation of foodgrains on a prima-facie basis.
5.5 Thereafter comes the loss which of course can very well be inferred by the fact of absence of foodgrains in the godown owned by the petitioner. The complainants have been put to loss to the extent of the value of the foodgrains entrusted. Thus, the basic ingredient of the offence of criminal breach of trust appears to be made out on a prima-facie basis. However, it is for the prosecution to further find out the aspect of mens rea which in the considered opinion of this Court can be left for the trial Court to dwell into after adducing of evidence which stage is yet to come.
6. The other grounds that the offence u/S 407 IPC may be 5 Cr.R.No. 692/2017 made out, but not u/S 409 IPC is now taken up.
6.1 Before embarking upon the comparative analysis of the offence u/S 407 and 409 IPC, it is essential to reproduce both these provisions as follows:
407. Criminal breach of trust by carrier, etc.--Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 6.2 The said two Sections differ essentially on two aspects enumerated below:
(i) Section 407 IPC relates to breach of trust inter-alia by a warehouse keeper to whom entrustment of property is made and the said trust is breached. The punishment provided u/S 407 IPC is a maximum of 7 Years Imprisonment with fine.
(ii) However, Section 409 IPC punishes criminal breach of trust by a public servant, banker, merchant, factor, broker, attorney or agent to whom any property or it's dominion is entrusted and he commits breach of such trust and such offence attracts punishment up to Life Imprisonment or with 6 Cr.R.No. 692/2017 Imprisonment which may extend to 10 years alongwith fine. 6.3 The basic difference between the above said two Sections is that Sec 407 inter-alia relates to warehouse keeper and prescribes lesser punishment of a maximum of 7 Years Imprisonment with fine, but Sec 409 IPC relates to public servant, banker, merchant, factor, broker, attorney or agent and prescribes higher punishment of imprisonment for life or with imprisonment for a term which may extend to 10 years with fine.
7. The petitioner in the present case contends that assuming without admitting that the essential ingredients of offence of criminal breach of trust are made out, even then he can be charged only with the lesser punishment provided u/S 407 IPC which relates exclusively to warehouse keeper, but no charge can be framed u/S 409 IPC, as it does not relates to warehouse keeper.
8. The trial Court while framing of charge has not dealt with the above said issue primarily due to the failure on the part of the petitioner to raise the same. A bare perusal of the impugned order dated 04.07.2017 indicates that the trial Court was swayed by the magnitude of the value and quantity of property in regard to which breach of trust was alleged to be committed and therefore the said essential irregularity in framing of charge which partakes the character of an illegality, missed the attention of the trial Court.
9. It may not be out of place to mention here that the provisions regarding framing of charge contained in Chapter XVII of Code of Criminal Procedure, especially sub-section 218 provides that if law which creates the offence gives out a specific name, the offence may be described in the charge by that name only, and law and section of law against which the 7 Cr.R.No. 692/2017 offence is said to have been committed shall be mentioned in the charge. Moreso, for every distinct offence of which any person is accused shall be separately charged. 9.1 The object behind the above said requirement of precise framing of charge containing all essential parts and the specific offence defined in the IPC, is not far to see. Charge is the parameter set by the Court within which the trial is to be conducted.
9.2 Framing of charge thus gives a clear understanding and an opportunity to the accused to know the exact offence for which he is tried, so that he can prepare his defence in advance. In short, the charge specifies the rules within which the game of the trial is to be played. Thus, the precise framing of charge assumes relevance.
10. In the instant case, the act of breach of trust by a warehouse keeper is a separate and distinct offence attracting a separate punishment u/S 407 IPC which prescribes for a maximum punishment of seven years of imprisonment with fine. 10.1 However, despite there being a specific offence in regard to which breach of trust committed by a warehouse keeper is punishable u/S 407 IPC, the trial Court has misdirected itself by framing the charge u/S 409 of IPC.
11. This Court can understand the predicament of the petitioner of having no remedy under the Cr.P.C. for seeking alteration of charge as contemplated by Section 216 Cr.P.C., since the said power can be exercised exclusively by the Court suo motu as laid down by the Apex Court in the case of P. Kartikalakshmi Vs. Sri Ganesh and Another reported in (2017) 3 SCC 347.
12. Accordingly, this Court is of the considered view that 8 Cr.R.No. 692/2017 though the principal offence of criminal breach of trust is prima- facie made out against the petitioner, but the charge u/S 409 IPC framed against the petitioner is vitiated as the offence alleged to be committed by the petitioner specifically falls within the purview of Sec 407 of IPC.
13. In view of the above, this Court deem it appropriate to allow present revision petition with the following directions:
1. The impugned charge dated 04.07.2017 to the extent it alleges offence punishable u/S 409 of IPC qua the petitioner is set aside with liberty to the trial Court to frame the charge for offence punishable u/S 407 of IPC, against the petitioner.
2. It is made clear that charge framed u/S 420 IPC is left undisturbed.
Accordingly, the present revision stands allowed to the extent indicated above sans cost.
(Sheel Nagu) Judge 24/08/2017 sh/-