Madras High Court
Nagaraj vs State By on 26 September, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl RC No.1038 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.09.2022
CORAM
THE HON'BLE Dr.JUSTICE G.JAYACHANDRAN
Crl.RC No.1038 of 2017
Nagaraj
... Petitioner/ Appellant /Accused
-Vs.-
State by
The Inspector of Police,
Central Crime Branch,
Egmore, Chennai 600 008 ..Respondent/Respondent/
Complainant
Prayer :- Criminal Original Petition filed under Section 482 of Code of
Criminal Procedure to setaside the judgement in C.A.No.50 of 2016
dated 25.11.2016 by the learned XVIII Additional Sessions
Judge,Chennai confirming the judgement of the learned III Metropolitan
Magistrate Court in C.C.No.4630 of 2005 dated 10.02.2016 and call for
the records and set aside the same.
For Petitioner : Mr.R.Nandakumar
Legal Aid Counsel
For Respondent : Mr.N.S.Suganthan
Government Advocate
https://www.mhc.tn.gov.in/judis
1/8
Crl RC No.1038 of 2017
ORDER
This Criminal revision petition is filed against the concurrent findings of the Court below for the alleged crime of diverting 973 metric tonne of fertilizers loaded at Chennai Port supposed to be delivered at BWC Whitefield, BWC Madhya, B.W.C.Tumkur and Ramalingeswar Fertilizers, Vijayapura, misdirected the goods and misappropriated the same by selling it to 3rd parties for personal gain and thereby, unlawfuly enriched himself to the tune of Rs.18,16,015/- committed breach of trust.
2. The Trial Court on considering the evidence of PW1 to PW8 and Ex.P1 to P26 found guilty for an offence under Section 401 IPC and sentenced him to undergo two years rigorous imprisonment and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for one month. Aggrieved by the said judgment of conviction and sentence, the accused preferred an appeal before the XVIII Additional Sessions Court, https://www.mhc.tn.gov.in/judis 2/8 Crl RC No.1038 of 2017 Chennai in Crl.A.No.50 of 2016 and the Lower Appellate Court dismissed the appeal and confirmed the conviction and sentence passed by the Trial Court in C.C.No.4630 of 2005 dated 10.02.2016. Against concurrent finding, the revision petition is filed and suspension of sentence was sought. Thereafter, there was no representation for the revision petitioner and therefore, this Court appointed Mr.R.Nandakumar as Legal Aid counsel to represent the petitioner. Today, the matter is taken up for final disposal after granting sufficient time.
3. The learned Public prosecutor submitted that the defacto complainant Mr.Kalidas Gokaldas, Marketing Manager in Gujarat Narmada Valey Fertilizers Company Limited having branch office at Chennai is the defacto complainant. Fertilizers were imported from foreign country and distributed to various dealers of the defacto complainant company. For the said purpose, the service of the accused was engaged for transport. The accused was the proprietor of M/s.Golden Lorry Transport. He was entrusted to deliver 973 mt of fertilizers during the period from 01.09.2003 to 31.05.2004. Under Ex.P5 to P23, 293 mt. He was entrusted to the accused with specific instructions https://www.mhc.tn.gov.in/judis 3/8 Crl RC No.1038 of 2017 that it has to be despatched to four destinations in Karnataka, who are the dealers of the defacto complainant company. Instead of delivering the material as per the invoices to those four dealers, the goods were diverted and sold out to 3rd parties. When the dealers were called to confirm the delivery of goods, they answered in negative and thus, the crime came into light. The total value of the misappropriated goods is Rs.18,16,005/- and the same being proved through Ex.P1 to P26. The accused himself has admitted his guilt in the confession statement and admissible portion of the confession statement is marked as Ex.P27. Stating that from the confession of the accused, the information regarding the fertilizers sold to third party came to light and from the information led to examination of PW4, PW5, PW6 and PW7 the purchasers of the misappropriated fertilizers.
4. The learned counsel submitted that the Trial court rightly held that accused guilty and the same being confirmed by the appellate Court.
5. In the grounds of revision, it is contended that there was no https://www.mhc.tn.gov.in/judis 4/8 Crl RC No.1038 of 2017 contractual liability between the accused and the Defacto complainant company. Ex.P2 and P3 are work orders for transportation of the fertilizer from Chennai Port. The terms and condition of the contract has been deliberately suppressed by the complainant in order to avoid arbitration clause and the confession statement did not led to any recovery and therefore, application under Section 27 of the Evidence Act is erroneous. The learned counsel further submitted that the bills raised by the complainant company does not tally with the stock transfer advice and therefore, the ingredient of offence under Section 407 of IPC is not attracted.
6. Heard the learned counsel for the petitioner and the records perused.
7. The prime contention raised in the grounds of petition is that there is no contract between the petitioner company and the accused. However, Ex.P2 and Ex.P3 which are work orders dated 09.07.2002 and 17.09.2003 indicates that the accused are the proprietors of the Golden Lorry Transport and they agreed to transport 1019 mt of fertilisers from https://www.mhc.tn.gov.in/judis 5/8 Crl RC No.1038 of 2017 Chennai Port to various destinations and these two work orders indicate that this is pertaining to transport of fertilizers from Chennai Port to Karnataka. The four dealers were supposed to get the delivery of the 263 metric ton been examined as witnesses and the stock transfer advises for those dealers are marked as Ex.P5 to P23. Though it is contended that Ex.P27 the confession statement is not admissible under Section 27 of Evidence Act, the Evidence of PW4/Ajith Kumar, PW5/Hariharan, PW6/Krishnaraj and PW7/ Gurumoorthy, who are the dealers in fertilizers, have purchsed fertilizer from the accused who has committed breach of trust and sold the fertilizers entrusted to him for to be delivered to the named dealers, had diverted and sold the goods to these witnesses. The identification of the purchasers of the diverted fertilizers is the fact leading to discovery of the fact covered under Section 27 of the Evidence Act as held by the Hon'ble Supreme Court in Pullukuri Kottaya Case. The statement of an accused leading to the discovery of a fact is admissible in evidence under Section 27 of the Evidence Act. The fact need not be only material object. Any fact discovered based on information is sufficient to admit that portion of the confession. In this case, 263 metric ton of fertilizer entrusted to the petitioner herein https://www.mhc.tn.gov.in/judis 6/8 Crl RC No.1038 of 2017 supposed to be delivered to the dealers, has been diverted and sold to PW4 to PW7. This fact is within the knowledge of the accused who has disclosed it to the police during the course of investigation and this information has led to the discovery of the diversion of the fertilizers to PW4 to PW7. Therefore, the Trial Court has dealt this issue and after proper appreciation of the evidence, application of Section 27 of the Evidence Act and following the judgments of the Hon'ble Supreme Court, has held the accused guilty. This Court finds no error either in law or in appreciation of facts and evidence by the Courts below. In the result, this Criminal Revision is dismissed.
26.09.2022 Speaking/Non-speaking order Index: Yes/No Internet : Yes/No rka To
1.State of Tamil Nadu, Rep. By Deputy Superintendent of Police, Economic Offences Wing II, Guindy, Chennai 600 035
2.The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis 7/8 Crl RC No.1038 of 2017 Dr.G.JAYACHANDRAN.J., rka Crl.RC No.1038 of 2017 26.09.2022 https://www.mhc.tn.gov.in/judis 8/8