Punjab-Haryana High Court
State Of Punjab And Others vs Yashpal And Another on 18 July, 2013
Author: K.C.Puri
Bench: K.C.Puri
Crl. Appeal No.791-SBA of 2000 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Appeal No.791-SBA of 2000 (O&M)
Date of Decision: July 18, 2013.
State of Punjab and others
.....Appellants
Versus
Yashpal and another
.....Respondents
CORAM: HON'BLE MR. JUSTICE K.C.PURI
Present: Mr.S.S.Chandumajra, Sr. DAG, Punjab.
Mr. Vivek Rattan, Advocate for the respondents.
K.C.PURI, J. (ORAL)
This is an appeal directed by State of Punjab against judgment dated dated 16.07.1999 passed by Sh.Balwinder Singh Sandhu, PCS, Sub Divisional Judicial Magistrate, Dhuri, vide which the accused now respondents have been acquitted.
Briefly, stated the case of the prosecution is that the Punjab Financial Corporation has granted loan of ` 5,95,000/- to M/s. Durga Rubber Latex Foam Industry, Sangrur Road, Dhuri through its prartners Yashpal and Satpal. The said loan was advanced for the purchase of machinery and construction of the building in the name and style of M/s. Durga Rubber Latex Foam Industry, Sangrur Road, Dhuri. Mortgage deed dated 21.10.1987 was executed, mortgaging Manoj Kumar 2013.07.30 18:22 I attest to the accuracy and integrity of this document Crl. Appeal No.791-SBA of 2000 2 the machinery as detailed in the mortgage deed in favour of the Punjab Financial Corporation (hereinafter referred as 'PFC').
The case of the prosecution is that as per the terms and conditions of the said mortgage deed the borrower was not entitled to sell, transfer lease property, mortgage in favour of the P.F.C. including factory premises, plant, machinery and all of the ancilliaries and accessories. The aforesaid hypothecated properties were kept at Sangrur Road, near Hospital, Dhuri, District Sangrur and both the accused had removed almost the entire machinery from the aforesaid premises and the same has been dishonestly misappropriated and disposed of the said machinery without permission of the P.F.C. in violation of the terms and conditions of the legal contract. Report of Sh. Vasdev, D.M. was obtained and on the basis of which FIR No.173 dated 09.12.1994, under Section 406 IPC was registered.
After completion of the investigation challan was presented against the accused. Charge under Section 406 IPC was framed to which they pleaded not guilty and claimed trial.
The prosecution in order to prove its case examined PW1 Vasedev, Deputy Manager, Technical, P.F.C., Patiala, PW-2 S.I. Tale Ram, PW-3 Kulwant Singh, Asst. General Manager of P.F.C., PW-4 Narinder Singh, PW-5 Vinod Kumar, PW-6 Nasrudin Gorakhi, Deputy Manager, Financials, P.F.C., Ludhiana and PW-7 HC Gurmail Singh and closed the prosecution evidence.
After closure of the prosecution evidence the accused were examined under Section 313 Cr.P.C and all the incriminating Manoj Kumar 2013.07.30 18:22 I attest to the accuracy and integrity of this document Crl. Appeal No.791-SBA of 2000 3 evidence was put to the accused to which they denied all the allegations levelled against them.
In their defence, they examined DW-1 Baldev Singh, DW- 2 Sukhdev Singh and DW-3 Devinder Kumar.
The trial Court after appraisal of the evidence acquitted the accused persons vide judgment dated 16.07.1999.
Feeling dis-satisfied with the judgment of acquittal, State of Punjab has referred the present appeal.
Vide order dated 3.07.2013, learned State counsel sought time to find out any contrary authority cited in the trial Court judgment. Learned State counsel could not produce any contrary authority. The judgment of the trial Court is based upon authority reported in "Sunita Bajaj Vs. Punjab and Sind Bank 1998 (1) RCR (Criminal) 129" of this Court and Hon'ble Apex Court authority reported in "CBI New Delhi Vs. Duncans Agro Industries Ltd. Calcutta 1996(3) Crimes 60". In both these authorities, it has been held that mere selling of the mortgage/hypothecated properties does not constitute the offence under Section 406 IPC. It has been observed in both these rulings by this Court and Hon'ble Apex Court that ownership rights remains with the loanee. The Financial Corporation institution has simply right to recover the amount by selling of the property.
The issue in the present appeal is also that by mere proving the sale of hypothecated property, offence under Section 406 IPC is attracted? In both the aforesaid authorities Sunita Bajaj Vs. Punjab and Sind Bank and CBI New Delhi Vs. Duncans Agro Manoj Kumar 2013.07.30 18:22 I attest to the accuracy and integrity of this document Crl. Appeal No.791-SBA of 2000 4 Industries Ltd. Calcutta (supra), this Court and Hon'ble Apex Court has held that by selling the mortgaged/hypothecated property no offence under Section 406 IPC is made out.
No contrary authority has been cited in spite of opportunity given to the State counsel.
So, in these circumstances, no ground for interference in the present appeal is made out. Consequently the appeal is without any merits and the same stands dismissed.
18.07.2013 (K.C.PURI)
Manoj Bhutani JUDGE
Manoj Kumar
2013.07.30 18:22
I attest to the accuracy and
integrity of this document