Andhra HC (Pre-Telangana)
Sadashiva Rao vs State Of A.P. And Anr. on 20 December, 2001
Equivalent citations: 2002(1)ALT(CRI)459, 2002CRILJ2110
Author: E. Dharma Rao
Bench: E. Dharma Rao
ORDER E. Dharma Rao, J.
1. This criminal revision case is filed against the judgment of the learned Metropolitan Sessions Judge, Visakhapatnam rendered in Criminal Appeal No. 134 of 1998 dated. 31-3-1999 confirming the conviction and sentence passed against the petitioner accused by the learned VIII Metropolitan Magistrate, Visakhapatnam at Gajuvaka in C.C. No. 432 of 1994.
2. The petitioner accused was convicted by the trial Court for an offence under Section 409, IPC and sentenced to undergo rigorous imprisonment for two years. He was also further sentenced to pay a fine of Rs. 5,000/-in default, to suffer simple imprisonment for six months. Aggrieved by the same the accused carried the matter in appeal. The appellate Court also confirmed the conviction and sentence awarded against the accused.
Hence, the present revision by the accused.
3. The learned counsel for the petitioner contended that the learned judge erred in convicting the petitioner under Section 409, IPC while coming to conclusion that there is discrepancy in the testimony of P.Ws. 1 and 2. He further contended that there is abnormal delay in filing the report and further contended that the Court failed to see that the ingredients of Section 409, IPC are not made out by the prosecution and there is any amount of doubt with regard to the quantity of property alleged to have been misappropriated by the petitioner. Therefore he contends that the order of the lower Court is liable to be set aside.
4. The petitioner was charged for an offence under Section 409, IPC for the reason that he was entrusted with a total quantity of 41,640 metric tonnes of steel by work order dated 31-12-1987 and 5-1-1988 for fabrication and erection of trolley in two instalments on 25-3-1988 and 6-5-1988 through the authorised representative of the accused arid the accused himself was under an obligation to return the unused steel as well as the steel scrap generated during the course of work. The accused had to complete the work by 20-3-1988 but he could not complete the same and so time was extended up to 30-6-1988 to complete the work and as there was no positive improvement his contract was terminated and he was asked to present the material unused but he did not return the material. The accused was stated to have erected trolley to the tune of 21 metric tonnes whereas vacuum work was found to be an extent of 18-42 metric tonnes and in the raw material recovered from the site was 9.22 metric tonnes and so fall in short of 14 metric tonnes which was found misappropriated. Therefore the compLalnt was made against him.
5. In order to prove its case the prosecution has examined P.Ws. 1 and 2 and marked Exs. P.I to P. 15. But no evidence was adduced on behalf of the defence.
6. The learned Magistrate on appreciation of oral and documentary evidence came to the conclusion that the petitioner accused has committed criminal breach of trust and therefore he was sentenced accordingly. The learned Magistrate also considered the delay in lodging the report with the police. The learned appellate Judge after reappreciating the entire evidence based on the evidence of P.W. 1 Manager, Electrical H.C.L. confirmed the conviction and sentence passed by trial Court. Aggrieved by the same the present revision.
7. The learned counsel for the petitioner submitted that the petitioner is a sub-contractor and he does not fall within the meaning of Agent as contemplated under Section 409, IPC. He further contended that the offence committed by the petitioner comes under Section 406, IPC as he is a sub-contractor under P.W. 1 and therefore the punishment imposed by the trial Court and confirmed by the appellate Court is disproportionate to the offence committed by him. Section 409, IPC contemplates criminal breach of trust by public servant, banker, merchant or agent. The petitioner does not come within the meaning of public servant or agent and he is an independent contractor and therefore for any breach of trust committed by him punishment is to be imposed for the offence under Section 406, IPC that is the punishment for the criminal breach of trust whoever commits criminal breach shall be punished with description which may extend to three years or with fine or both. He further argued to reduce the punishment.
8. On the other hand the learned Public Prosecutor relied on the judgment reported in Somanath v. State of Rajasthan wherein it is held as follows :
Section 405, IPC does not provide that the entrustment of the property should be by someone or the amount received must be present on whose behalf it is received and as long as the accused is given possession of the property for specific purpose or to deal with it in a particular manner the ownership being in same person other than the accused he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The expression entrustment in Section 409, IPC is used in a wider sense and include all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. A person authorised to collect monies on behalf of other is entrusted with the money for the amount when the amounts are paid to him. It is further observed that the expression entrusted in Section 409, IPC is used in a wide sense and includes all cases in which properties are handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. It may be that an agent of the person to whom it is entrusted or to whom it may belong, in which case if the agent who comes into possession of it on behalf of his principal, fraudulently misappropriates the property, he is nonetheless guilty of criminal breach of trust because as an agent he is entrusted with it. Therefore, in view of the decision of the Supreme Court the petitioner though he is a sub-contractor he is agent worked under P.W. 1. He has fraudulently misappropriated the steel entrusted to him.
9. On the other hand the learned counsel for the petitioner relied upon a decision of the Supreme Court in Lakshminarayan Ram Gopal and Sons v. Hyderabad Government wherein the Supreme Court has distinguished the words 'agent' and 'servant' and held as follows :
The difference betwen the relationship of master and servant and principal and agent may be said to be this. A principal has the right to direct what work the agent has to do, but a master has the further right to direct how the work is to be done. The position is further clarified in Halsbury's Laws of England-Hallsham Edition Vol. 1 at page 193.
An agent is to be distinguished on one hand from a servant and on the other from an independent contractor. A servant acts under the direct control and supervision of his master and is bound to form to all reasonable orders given to him in the course of his work; an independent contractor, on the other hand is entirely dependent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result. An agent though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal. An agent as such is not a servant but a servant is generally for some purposes his master' implied agent, the extent of the agency depending upon the duties or position of the servant.
Therefore the petitioner is sub-contractor of P.W. 1. He has to act according to the instructions by applying his private means as suggested by P.W. 1 and therefore it does not attract the offence committed by the petitioner under Section 409, IPC.
10. As seen from the facts of the case and as the principle Lald down by the Supreme Court in the above cited decisions P.W. 1 has entrusted the work of erection of trolley line by means of work order dated 31-12-1987, 5-1-1988 and delivered the steel total quantity of 41,640 metric tonnes in two instalments on 25-3-1988 and 6-5-1989 and he has to complete the work by 20-3-1988 but could not complete the same so that time was extended till 30-6-1989. He failed to execute the work and he did not co-operate with P.W. 1 and so the measurements of the available material was taken even in his absence in the presence of the representative of the steel plant and found that there is deficiency of 14 metric tonnes of steel and this was proved by documentary evidence. The Court below have satisfied that the petitioner has committed criminal breach of trust and they have proved the factum of entrustment of the steel and the factum of misappropriation of the steel in an extent of 14 metric tonnes. As can be seen from the ratio Lald down by the Su-preme Court in Somnath's case 1972 Cri LJ 897, the expression entrustment in Section 409, of the Indian Penal Code is used in wider sense and include all cases in which the property was handed over for a specific purpose and is dishonestly dispossessed contrary to the terms on which the possession has been handed over.
11. In the instant case also, on behalf of the Visakhapatnam steel plant. P.W. 1 has entrusted a total quantity of 41,640 metric tonnes of steel by work order dated 31-12-1987 and 5-1-1988 for specific purpose of fabrication and erection of trolley in two instalments on 25-3-1988 and 6-5-1988 and the work had to be completed before 20-3-1988. When the accused failed to execute the above said work, time was further extended. Thus, when the steel was entrusted to the accused for a specific purpose, he has dishonestly disposed it of contrary to the terms on which possession was handed over to him. Though the accused is an independent contractor and has to use his own means to complete the contract, in view of the wider sense given to the term 'Agent' by the Supreme Court which include all cases in which property is voluntarily handed over for specific purpose, under Section 409 of the Indian Penal Code, he can be treated as an agent. When the accused has not completed the work of contract and he failed to account the steel entrusted to him, he has dishonestly and fraudulently misappropriated the steel entrusted by P.W. 1. Thus, the accused is guilty of the criminal breach of trust and, therefore, he is liable to be punished for the offence under Section 409 of the Indian Penal Code, inasmuch as, the accused as an agent on behalf of his Principal P.W. 1, has misappropriated the steel entrusted to him. Therefore, it cannot be said that the order passed by the Court below is illegal and contrary to law. Therefore the conviction was confirmed.
12. On the other hand the learned counsel for the petitioner submitted that the offence took place in the year 1988 and the petitioner met with accident and sustained fractures and if he is sent to jail it may cause hardship to him. After going through the entire material I am satisfied to meet the ends of justice the conviction is confirmed but the sentence of two years rigorous imprisonment is reduced to one year rigorous imprisonment while confirming the sentence of fine imposed.
Criminal revision case is dismissed subject to the reduction of quantum of sentence as stated above.