Delhi District Court
State vs : Sudershan And Anr on 8 July, 2013
IN THE COURT OF SH. SUDHANSHU KAUSHIK, METROPOLITAN MAGISTRATE02, SOUTHEAST DISTRICT, SAKET COURTS, NEW DELHI State Vs : Sudershan and Anr FIR No : 2/98 U/s : 407 IPC PS : Okhla Industrial Area Date of Institution: 14.05.2003 Date of Judgment reserved for: 28.06.2013 Date of Judgment: 08.07.2013 Brief Details of the Case A. Sl. no. of the case 895/2/03 B. Offence complained of or proved U/s 407 IPC C. Date of Offence 28.11.1997 D. Name of the complainant Gurdeep Singh Sawhney c/o Ms Sawhney Exports C13, Jalandhar, Punjab.
E. Name of the accused (1)Sudershan
s/o Sh Kamal
r/oVillageChand Roliya,
PSSalam Pur, DisttDewaria,
UP.
(2) Shyam Tiwari
s/o Sh Ram Ashre Tiwari
r/oVillageKamal Pur, PS
Rrua, DisttKanpur, UP.
F. Plea of the accused Pleaded not guilty.
G. Final order Acquitted
H. Date of Order 08.07.2013
Judgment
On the accusation of committing criminal breach of trust in respect of a consignment which was entrusted to accused Sudershan and FIR No. 2/98 1/10 Shyam Tiwari as drivers of truck bearing registration number DL1GA6744 and HR363413, they were sent up for trial for committing offences punishable under Section 407/34 IPC.
Brief facts as unfolded during the trial
2. M/s Sawhney Exports was a firm dealing in export of hardware articles, nut bolts, screws and motor parts having it's office at Jalandhar, Punjab. It hired the services of M/s Budhiraj Goods Transport, Inland Container Depot (ICD), Tuglakabad for transporting an export consignment from it's office to ICD for onward shipment to the overseas buyer. On 25.11.1997, the consignment containing 1698 packets was loaded in two different trucks arranged by M/s Budhiraja Goods Transport. The accused persons, who were driving these trucks, delivered the consignment at ICD and it was shipped after being cleared by the clearing agent M/s Emm Ess Cargo Movers, New Delhi. On receiving a message from the buyer about shortage of around 495 packets, Sh Gurdeep Singh Sawhney (PW4), authorised signatory of Sawhney motors, lodged a complaint with the local police station and present FIR bearing number 02/98 under Section 407/34 IPC was registered at PSOIA.
3. The prosecution's case proceeds further that on 01.01.1998, both the accused persons were arrested from ICD, Tuglakabad and made disclosure about their involvement. It is the prosecution's story that FIR No. 2/98 2/10 accused persons alongwith Wahid and Kallu (scrap dealers) unloaded around 495 packets from the containers at a deserted park in Sarita Vihar and misappropriated these articles. Subsequently, on 05.01.1998, on the basis of a secret information, 198 misappropriated packets were recovered by SI Ved Prakash (PW7) from the ground floor of house bearing no C125, street no 6, Shastri Park, Seelampur, Delhi in presence public witnesses named Ramesh Jain (PW2) and Keshoram Jain (PW3), who were running their respective shops in the locality. On inquiries, it was learned that the house was taken on rent by one Yamin who could not be traced. Efforts were made to trace Kallu and Wahid but it did not yield any result.
4. Investigation concluded and chargesheet was put to the court. Copies of chargesheet were supplied to both the accused and charge under Section 407/34 IPC was framed against them to which they pleaded 'not guilty' and claimed trial.
Witnesses examined
5. Seven witnesses were examined.
PW1 HC Amar Dayal (Duty Officer) deposed about the registration of FIR. The copy of the FIR is Ex PW1/A. PW2 Ramesh Jain (First recovery witness) supported recovery. He mentioned that misappropriated packets were recovered from the house of Saleem at Seelampur. He stated that he used to reside FIR No. 2/98 3/10 at house no C123, Shastri Park, Seelampur, New Delhi and recovery was made from house no C125.
PW3 Keshoram (Second recovery witness) also supported recovery. He mentioned that 198 boxes containing some articles of steel were recovered from house of Saleem bearing no C125 while he was residing at house no C116 in the same locality.
PW4 Gurdeep Singh Sawhney (Complainant/partner of Sawhney Export) mentioned about the report lodged by him. He stated that the articles were stolen and misappropriated by the drivers during transit from Jalandhar to New Delhi. He mentioned that as far as he recollects, the accused persons were the drivers of the trucks wherein the consignment were loaded. He stated that the containers carrying the consignment were not sealed. It was his version that the containers were locked and respective keys were handed over to the drivers.
PW5 Sh Yashpal Singh Sawhney (Superdar, wrongly mentioned as PW6) stated that recovered packets were released to him. He mentioned that he came to know from the buyers that there was shortage in the consignment.
PW6 SI Ved Singh (Investigating Officer, wrongly mentioned as PW7) justified the investigation carried out by him. He mentioned about the recovery and stated that recovered 198 cartons were seized vide seizure memo Ex PW2/A. FIR No. 2/98 4/10 PW7 HC Lav Kumar (Witness of arrest) mentioned that both the accused persons were arrested in his presence from ICD, Tuglakabad.
6. Separate statements of both the accused persons were recorded under Section 313 Cr PC wherein they denied all the allegations and submitted that they have been falsely implicated.
Arguments
7. I have heard the arguments advanced by Ld APP for the State and Ld defence counsel.
8. Ld APP has argued that charge against both the accused persons has been established beyond reasonable doubt. He contended that testimony of recovery witnesses cannot be ignored and there is ample evidence to establish that both the accused committed criminal breach of trust while being entrusted with the consignment as drivers of the trucks.
9. On the other hand, Ld defence counsel has argued that there is not even an iota of evidence against either of the accused. Counsel has argued that identity of accused persons as the drivers of the trucks has also not been established. He has argued that the story of prosecution is doubtful and benefit of doubt ought to be given to the accused persons.
Brief reasons for the decision
10. Let us peruse the record to see whether charge under Section 407/34 IPC has been substantiated. Section 407 IPC provides FIR No. 2/98 5/10 punishment to a person who while being entrusted with property as carrier commits criminal breach of trust in respect of such property. Section 408 IPC provides punishment to a person who being employed as a servant commits criminal breach of trust in respect of property entrusted to him by his master. The ingredients of both the offences are almost similar. The criminal breach of trust has been defined under Section 405 IPC. The section provides that whosoever, 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 made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
11. Thus, in order to bring home the charge under Section 407 IPC, it was called upon the prosecution to establish the following fact in issue. (a) That accused persons were employed as drivers of trucks on which the consignment was loaded. (b) That they were entrusted with the consignment containing 1698 cartons in their capacity as drivers. (c) That accused persons dishonestly misappropriated or converted 495 cartons to their own use.
12. Ld APP has vehemently argued that recovery has been proved beyond reasonable doubt. He has contended that testimony of Gurdeep FIR No. 2/98 6/10 Singh Sawhney (PW4) establishes that consignment was entrusted to the accused persons. He has argued that testimony of this witness is more than sufficient to establish charge against both the accused persons.
13. I have perused the record in the light of arguments advanced by the Ld APP but I am not convinced with his line of argument. Record shows that although Gurdeep Singh Sawhney (PW4) mentioned that 495 cartons of consignment were misappropriated by the drivers of trucks during transit but he was not sure about the identity of those drivers. He mentioned that as far as he recollects, the accused persons were the drivers of those trucks. His said deposition suggests that he himself was not completely sure that accused persons were those drivers who were entrusted with the consignment. There is no other material on record to establish the identity of accused persons as the drivers of the trucks. It is the prosecution's version that the trucks were arranged by M/s Budhiraja Goods Transport having it's office at ICD, Tuglakabad. Neither the owner of the said concern nor any authorised person has been examined during the trial. Their nonexamination is fatal for the prosecution's case.
14. It is interesting to note that Gurdeep Sawhney mentioned in his complaint dated 31.12.1997 which is Ex PW4/A that he learnt from reliable sources that drivers of the trucks were working at ICD, Tuglakabad. It was thereafter that both the accused persons were FIR No. 2/98 7/10 arrested on 01.01.1998 from ICD, Tuglakabad. Although, Ct Lav Kumar (PW7) mentioned that both the accused persons were arrested at the instance of Hansraj Budhiraja but the said person was not cited as witness in the arrest memo. The said fact coupled with nonexamination of Hansraj gives rise to an adverse inference.
15. The argument that charges under Section 407 IPC stands established merely because recovery has been proved is misconceived. Prosecution was duty bound to establish that cartons from the consignment were misappropriated during transit. In order to establish the said fact, it was under an obligation to prove two facts. Firstly, that consignment consisted of 1698 cartons and secondly that the said number of cartons did not reach it's destination at New Delhi. It is the prosecution's own case that cartons were cleared by the clearing agents before being shipped to the overseas buyers. It cannot be conceived that the consignment was not checked by the clearing agents before giving a green signal for its shipment. It is a matter of common practice that the goods which are loaded on a truck are weighed before leaving and after reaching its destination to rule out the possibility of any pilferage. In case, that would have been done, the alleged misappropriation would have been noticed by the clearing agents.
16. Admittedly, there is a delay in registration of FIR. In the present case, the consignment was dispatched on 25.11.1997. It must have reached ICD, Tuglakabad, Delhi on the next day. The complaint FIR No. 2/98 8/10 was lodged by the complainant on 31.12.1997 i.e. after more than a month. It is the prosecution's story that complainant came to know about the shortage after he was informed by his overseas buyers. Record shows that complainant was not prompt in lodging complaint with the police. He admitted in his crossexamination that information about shortage was received by him about 10 days prior to the report lodged by him. Why did he kept waiting for 10 days before reporting the matter to the police? No explanation has come on record about the delay. The said inordinate unexplained delay is fatal.
17. Record further shows that recovery itself is not free from doubt. 198 cartons which were misappropriated from the consignment were recovered from house of one Salim. The recovery is stated to have been made in the presence of public witnesses. These public witnesses have been examined as PW2 and PW3. Let us peruse their testimony. PW2 Ramesh Jain mentioned that he accompanied the police party to the house of Salim at premises bearing no C125, street no 6, Shastri Park, Seelampur, Delhi. He stated that 198 boxes containing tools of different sizes were recovered from the said house and those boxes were seized vide seizure memo Ex PW2/A. He mentioned in his cross examination that Saleem used to do the business of scrap and police officials summoned him at the spot. PW3 Keshoram has also given similar version. On the other hand, Inspector Ved Singh (PW7) who was heading the police party remained completely silent about the presence FIR No. 2/98 9/10 of Saleeem at the spot. His said silence does not advance the prosecution's cause. Moreover, there is nothing on record to connect the accused persons with the said recovery.
18. In the light of discussions made in the abovestated paras, I have reached a conclusion that prosecution has measurably failed to prove charges against either of the accused. The entrustment part which is the foremost ingredient of an offence under Section407 IPC has not been established. Although, witness who mentioned that consignment was entrusted to the accused persons as the drivers of the truck. This witness is not sure about the identity of the accused persons. The result is obvious. Both the accused persons stand acquitted of the charge under Section 407/34 IPC.
19. Bail Bonds stands cancelled. Surety stands discharged. Endorsement placed on the documents of the surety be cancelled and the same be returned to him, if retained on record.
20. File be consigned to record room.
Announced in open Court (SUDHANSHU KAUSHIK)
On this 08.07.2013 MM02, SouthEast District,
Saket Courts, Delhi
FIR No. 2/98 10/10