Madras High Court
M/S.Dharani Sugar Mills Unit-Ii vs T.V.Malai District Farmer Progressive ... on 30 October, 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.10.2014 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl.O.P.No.10324 of 2008 and M.P.No.1 of 2008 M/s.Dharani Sugar Mills Unit-II, Represented by its Chairman, Palani G.Periaasamy Karaipoondi Village, Polur, Thiruvannamalai District. ... Petitioner Vs. 1.T.V.Malai District Farmer Progressive Sangam, Rep. By its Secretary, A.Krishna Reddiar, aged about 70 years, S/o.Annamalai Reddiar, Madurai Perumpatter Village, Thellor Post, Arni Taluk, Thiruvannamalai District. 2.The Inspector of Police, Kalasapakkam Police Station, Polur Taluk, Thiruvannamalai District. ... Respondents Petition filed under Section 482 of the Code of Criminal Procedure praying to call for the records pertaining to the case in C.C.No.96 of 2008 on the file of the learned Judicial Magistrate, Polur, Thiruvannamalai District and to quash the same. For petitioner : Mr.N.R.Elango, Senior Counsel for Mr.G.Prabhakaran For respondents : Mr.V.Karthick for M/s.T.S.Gopalan & Sons for R1 Mr.M.Maharaja, APP for R2 ORDER
Seeking to quash the private complaint in C.C.No.96 of 2008 on the file of the learned Judicial Magistrate, Polur, Thiruvannamalai District, the petitioner, who is the accused, in the said case has come up with this original petition.
2. The brief facts of the case would be as follows:- The respondent is an association known as T.V.Malai District Framer Progressive Sangam. Before the trial court as well as this court, the said sangam is represented by its Secretary A.Krishna Reddiyar. The petitioner/accused is a private Sugar Mill known as M/s.Dharani Sugar Mills Unit-II in Polur.
3. According to the 1st respondent herein, the Government of Tamil Nadu through the Director of Sugars by letter dated 28.12.1995 stipulated transport charges during the crushing season between 01.02.1995 and 30.09.1996 to be deducted for Metric Ton for 20 Kms. In pursuance of the said GO, the petitioner/accused issued the transport tariff schedule dated 18.07.1996 for crushing season between 01.02.1995 and 30.09.1996. According to the same, the petitioner started deducting Rs.34/- for per Metric Ton for 20 Kms radius and for the rest of the Kms, the petitioner sugar mill will have to borne the tariff. But, the petitioner mill deducted transport tariff at Rs.41.50 per Metric Ton for 20 Kms radius in contravention of the above tariff schedule dated 18.071996. Similarly, for the crushing season between 01.10.1996 and 30.09.1997, the Director of Sugars, directed all the sugar mills by order dated 19.02.1997 to deduct Rs.29/- per Metric Ton for 10 Kms radius and for the rest of the Kms, the Sugar Mills will have to borne the transport tariff. Quite contrary to the same, the petitioner started deducting Rs.41.50 per Metric Ton towards transport charges for 20 Kms radius for the period between 01.02.1995 and 30.09.1996 instead of deducting tariff charges at the rate of Rs.34/- per Metric Ton and at the rate of 41.50 per Metric Ton for the period between 01.10.1996 and 30.09.1997 instead of Rs.29/- per Metric Ton. Thus, between the years 1995 and 1997, the petitioner has deducted roughly about Rs.4,50,000/- and misappropriated the same. In this regard, the respondent had made complaints to many authorities including the police, viz., The Inspector of Police, Kalasapakkam in Polur Taluk. Based on the said complaint, the Inspector of Police registered a case in Crime No.351 of 2002. Since investigation was not done expeditiously the petitioner filed a petition in Crl.O.P.No.3808 of 2005 seeking a direction to expedite the investigation and to file final report. This court, by order dated 23.02.2005, disposed of the said original petition thereby directing the Inspector of Police, Kalasapakkam, to complete the investigation and to file final report before the jurisdictional Magistrate within a period of three months. Accordingly, on completing the investigation, the Inspector of Police, Kalasapakkam, referred the case as Mistake of Fact. On receipt of notice from the learned Magistrate in respect of the said final report, the respondent filed a protest petition before the Judicial Magistrate, Polur. On the said petition, the learned Magistrate passed final order on 21.04.2005 accepting the said final report without assigning any reason and without considering the objection raised by the petitioner. Thereafter, the respondent filed the present private complaint for alleged offences under Section 409 of IPC. It is this private complaint, which the petitioner now wants to quash.
4. I have heard the learned senior counsel for the petitioner; the learned counsel for the 1st respondent; and the learned Additional Public Prosecutor for the 2nd respondent and also perused the records carefully.
5. According to the learned senior counsel for the petitioner, there was no entrustment of the property at all to the petitioner and thus, the offence under Section 409 of IPC would not get attracted. He would further submit that the dispute is purely civil in nature, which makes out no offence warranting trial. The learned senior counsel would further submit that it was the practice of the petitioner mill to fix the transport tariff to be deducted towards transport charges and only according to the said practice here in this case, the transport charges were deducted.
6. The learned counsel for the 1st respondent would stoutly oppose this original petition. According to him, the members of the respondent association supplied sugarcane to the petitioner mill for crushing on the trust that the cost of the sugarcane would be fully paid to the members of the respondent association. But, the petitioner had deducted around a sum of Rs.4,50,000/- illegally in breach of the above trust and thus, the petitioner had committed an offence punishable under Section 409 of IPC.
7. The learned counsel would further submit that when the Director of Sugars had issued directions fixing the tariff, the petitioner had no authority to recover any amount more than what was so prescribed. Thus, according to the learned counsel, the act of the petitioner amounts to a clear offence punishable under Section 409 of IPC and, therefore, the proceeding in C.C.No.96 of 2008 is not liable to be quashed.
8. The learned Additional Public Prosecutor for the 2nd respondent would also oppose this original petition.
9. I have considered the above submissions carefully.
10. Admittedly, the petitioner sugar mill is enjoying monopoly in Polur Taluk and in the neighboring areas. It is the law that if any farmer rises sugarcane in that area, for the purpose of crushing, he has to supply the same only to the petitioner mill. The farmers did not enjoy any right to supply the sugarcane to any other mill for the purpose of crushing. For this purpose, individual agreements had been entered into between the farmers, who were the members of the respondent association and the petitioner sugar mill. As per clause (6) of the Agreement, the farmers are bound to cut and supply sugar canes from their fields only to the petitioner mill. In the event, the farmers failed to cut and supply the sugarcanes, the petitioner mill had a right to cut and remove the sugarcanes from the field of the farmers even without their consent. To this extent, the petitioner mill was enjoying monopoly. It is not in dispute before this court that the petitioner is doing business and so, the petitioner is a merchant for the purpose of Section 409 of IPC.
11. It is also not in dispute that the Government has got authority to fix the amount to be deducted by the mill from the sale proceeds of the sugarcanes towards transport charges. In the case on hand, for two crushing seasons, the Government had prescribed the tariff rate viz., at the rate of Rs.34/- and Rs.29/- per Metric Ton respectively. But, the allegation is that in violation of the same, the petitioner had deducted Rs.41.50 per Metric Ton and the total amount so deducted would go around Rs.41.50 per Metric Ton. Now, the question is whether this amounts to an offence under Section 409 of IPC or not. For that purpose, let us have a quick look into the relevant provision of the Indian Penal Code. Section 409 of IPC which is a penal provision regarding criminal breach of trust by public servant or by banker, merchant or agent reads as follows:-
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.
12. In order to make out an offence under Section 409 of IPC, essentially, there should be a commission of criminal breach of trust. The term criminal breach of trust is defined in Section 405 of IPC.
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".
13. In the case on hand, admittedly, the sugarcanes were supplied by the members of the respondent association to the petitioner on the trust that the petitioner will pay the actual cost of the sugarcanes so supplied by its members after deducting prescribed transport charges. Had the petitioner mill deducted the transport charges as fixed by the Director of Sugars, there would have been no criminal breach of trust at all. But, here, indisputably, the petitioner mill had deducted more than what was prescribed by the Director of Sugars. Here, the argument of the learned senior counsel appearing for the petitioner is that there was no entrustment of the property. This argument, in my considered opinion, deserves only to be rejected for the simple reason that what was entrusted to the petitioner mill was sugarcane by the farmers. The trust was that the cost should be paid to the farmers. The said trust is to be discharged as per the legal contract which is express in its terms. But, the petitioner has committed violation of direction of the Commissioner of Sugars and has retained the excess amount for the benefit of the petitioner mill. This act of the petitioner is certainly wilful. This prima facie conclusion of mine is fortified by Explanations (1) and (2) appended to Section 405 of IPC which reads as follows:-
Explanation 1 A person, being an employer 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 employees 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 the amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2 A person, being an employer, who deducts the employees contribution from the wages payable to the employee for credit to the Employees State Insurance Fund held and administered by the Employees State Insurance Corporation established under the Employees State Insurance Act, 1948 (34 of 1948), 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 Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
14. From the perusal of the above explanations, it is crystal clear that deduction of any amount over and above the amount which could be legally deducted from out of the amount to be paid to the members of the respondent association is certainly a criminal breach of trust. Whether such act of the petitioner was wilful or not is a matter to be gone into by the trial court on evidence. The retention of the amount so deducted more than what was prescribed in favour of the petitioner mill prima facie is dishonest. The term dishonestly has been defined in Section 24 of IPC as follows:-
24. "Dishonestly" Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
15. A plain reading of Section 24 of IPC would make it clear that the act of the petitioner in deducting the amount is only with a view to cause wrongful gain to him. Thus, prima facie, there are enough materials on record to show that the petitioner has committed an offence punishable under Section 409 of IPC warranting trial. It cannot be said that the learned Magistrate has taken cognizance of the offence without there being any material making out an offence under Section 409 of IPC. In view of the same, it is not a fit case to quash the proceedings.
16. At this Juncture, Mr.N.R.Elango, the learned senior counsel for the petitioner, requested this court to direct the learned Magistrate to permit the petitioner company to be represented by a representative to be nominated by the Managing Director / Chairman. In my considered opinion, this court cannot straight-away issue any such positive direction as prayed for, instead, this court could only make an observation that if any application is filed, the learned Judicial Magistrate, Polur, Thiruvannamalai District, shall consider the same on merits and pass appropriate orders in accordance with law.
17. In the result, this criminal original petition fails and the same is accordingly dismissed with the above observation. It is, however, made clear that any of the observations made herein above by this court shall not influence the mind of the trial court. All the observations made herein above shall not be construed as conclusions arrived at by this court as they are only prima facie opinion expressed for the purpose of this original petition and that the trial court shall dispose of the case in C.C.No.96 of 2008 on appreciating the evidence objectively as required under law. Having regard to the fact that the said case has been pending from the year 2008, the trial court is directed to expedite the trial and dispose of the case in C.C.No.96 of 2008 preferably within a period of six months from the date of receipt of a copy of this order. Consequently, connected MP is closed.
Index : yes 30.10.2014
Internet : yes
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To
1.The Judicial Magistrate, Polur, Thiruvannamalai District.
2.The Inspector of Police, Kalasapakkam Police Station,
Polur Taluk, Thiruvannamalai District.
S.NAGAMUTHU. J.,
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Crl.O.P.No.10324 of 2008
30..10..2014