Punjab-Haryana High Court
State Of Punjab vs Darbara Singh Sandhu on 8 July, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.S-768-SBA of 2000
Date of Decision: July 08, 2013
State of Punjab
...Appellant
VERSUS
Darbara Singh Sandhu
...Respondent
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.Yogesh Gupta, Asstt. Advocate General, Punjab
for the appellant-State.
Mr.Pradeep Goyal, Advocate
for the respondent.
****
INDERJIT SINGH, J.
Appellant State has preferred the present appeal against the judgment dated 06.01.2000 passed by Judicial Magistrate Ist Class, Malerkotla, whereby accused-respondent has been acquitted in case FIR No.106 dated 30.09.1994 under Section 406 IPC registered at P.S. Sadar, Malerkotla.
The brief facts of the prosecution case are that the complainant-Bank had filed written complaint dated 19.04.1993 to Senior Superintendent of Police, Sangrur on the allegation that Punjab Financial Corporation (hereinafter referred as 'Corporation') is a body corporate and the main function of the Corporation is to grant loans for establishment of the industries. Accused Darbara Singh Sandhu was an Advocate and a loan of ` 3,80,000/- for the purchase Gulati Vineet 2013.07.29 13:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-768-SBA of 2000 -2- of machinery under the name and style of M/s Rupindera Industries Village Badshahpur, Tehsil Malerkotla, District Sangrur, was secured under the Deed of Mortgage dated 17.04.1989. One of the term and condition of the said Deed was that the borrower shall not transfer or otherwise part with or remove from the said factory premises, plant and machinery along with its ancillaries and accessories without previous permission in writing of the Corporation. As per report of their officers Sh.M.L.Garg, DMF and Sh.Kulwant Singh, D.M, District Sangrur, the borrower-accused had removed almost the entire machinery from the aforesaid premises and same has been dishonestly misappropriated in violation of terms and conditions of the contract and committed the offence. On the basis of this application, FIR was registered. After necessary investigation, challan was presented against the accused-respondent.
On presentation of challan, copies of challan and other documents were supplied to the accused-respondent under Section 207 Cr.P.C. Finding prima facie case, accused-respondent was charge-sheeted under Section 406 IPC, to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW-1 Mohan Lal Garg, Manager, Punjab Financial Corporation, PW-2 Anil Kumar, PW-3 Pritam Singh, PW-4 Tejinder Singh, PW-5 Pawan Lal, PW-6 Surinder Kumar, PW-7 Rajesh Kumar, PW-7 (again marked as PW-7) Sahabudin.
At the close of prosecution evidence, the accused- Gulati Vineet 2013.07.29 13:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-768-SBA of 2000 -3- respondent was examined under Section 313 Cr.P.C. and he denied the correctness of the evidence and pleaded himself as innocent.
No evidence was led in defence.
On the basis of the evidence produced by the prosecution, accused-respondent was acquitted by the learned Judicial Magistrate Ist Class, Malerkotla.
At the time of arguments, learned Asstt. Advocate General, Punjab for the appellant-State argued that from evidence on record, offence under Section 406 IPC is made out and order of learned Magistrate is incorrect and not as per law and the appeal should be accepted and accused should be convicted under Section 406 IPC.
On the other hand, learned counsel for the respondent argued that the findings of the learned Magistrate are correct. There is no entrusment of owned articles to the complainant. Therefore, question of misappropriation does not arise. He further argued that the main ingredient regarding entrustment is missing in this case. Therefore, offence under Section 406 IPC is not made out. He also cited judgment passed by the Hon'ble Supreme Court in M/s Indian Oil Corporation vs. M/s NEPC India Limited and others 2006(6) SCC 736 on the same point. Learned counsel for the respondent placed two more judgments passed in cases Sunita Bajaj vs. Punjab and Sind Bank 1998(1) RCR (Crl.) and C.B.I., New Delhi vs. Duncans Agro Industries Ltd., Calcutta 1996(5) SCC 591 on the same point.
I have gone through the evidence on record minutely and Gulati Vineet 2013.07.29 13:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-768-SBA of 2000 -4- very carefully and have heard learned Asstt. Advocate General Punjab for the appellant-State and learned counsel for the respondent.
From the evidence on record, I find that the dispute between the parties was that the respondent had sold the machinery etc. which was hypothecated to the bank under the Deed Ex.P3. It is clear from the evidence on record that the possession of the articles i.e. machinery etc. was never entrusted to the complainant nor actual possession was ever given. The said machinery remained in possession of accused-respondent. The main ingredient of offence under Section 406 IPC is regarding criminal breach of trust and criminal breach of trust has been defined under Section 405 IPC, which provides that 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".
It is admitted case that the machinery was owned by the respondent and it was in his possession. Therefore, it amounts to hypothecation of goods with the complainant. The Hon'ble Supreme Court has laid down the law and it is held in C.B.I., New Delhi vs. Duncans Agro Industries Ltd., Calcutta 1996(5) SCC 591 that When some goods are hypothecated by a person to another person, Gulati Vineet 2013.07.29 13:31 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-768-SBA of 2000 -5- the ownership of the goods still remains with the person who has hypothecated such goods. The property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it must be in other person and the offender must hold such property in trust for such other person or for his benefit. Similarly, in the other case Sunita Bajaj vs. Punjab and Sind Bank 1998(1) RCR (Crl.), it is held that criminal offence under Sections 406, 408 IPC is not made out when machinery was hypothecated with the bank for obtaining loan and accused selling that machinery. In, C.B.I., New Delhi vs. Duncans Agro Industries Ltd., Calcutta 1996(5) SCC 591 which also fully applies on the facts of the present case, it is also held that accused disposing of goods which he had hypothecated, no offence of criminal breach of trust is made out. I find that law cited by learned counsel for the respondent fully applies on the facts of the present case.
I have gone through the judgment passed by the learned Judicial Magistrate Ist Class, Malerkotla. He has correctly applied the law to the facts of the case. The judgment in no way can be held as perverse or against the law. Good reasoning has been given for the findings and the judgment is upheld.
Resultantly, finding no merit in the appeal, the same is dismissed.
(INDERJIT SINGH)
July 08, 2013 JUDGE
Vgulati
Gulati Vineet
2013.07.29 13:31
I attest to the accuracy and
integrity of this document
Chandigarh