(1.) Being aggrieved by the order of dismissal of his complaint under S. 203 of the Code of Criminal Procedure, 1973 (for short 'the Code'), the petitioner has filed this revision.
(2.) The petitioner is M/s. Rourkela Construction Private Ltd., which manufactures and carries on business in various machanical equipments and spares including Tanks, vessels, stack at Rourkala and it is represented by its manager and principal officer Sri Abhinna Chandra Mohanty, whereas the opposite party is the manager/principal officer of M/s. Assam Bengal Roadways Ltd., a transport company, having its registered office at Calcutta and branch office at Rourkela. The petitioner-company having received order from M/s. Krishak Bharati Co-operative Ltd., Surat for supply of certain materials by their letter dated 16-9-1987, entered into a contract with the opposite party in which it was decided that the latter would transport the goods from the petitioner's godown at Rourkela to Surat at the rate of Rs. 8,015/- per trip. On the basis of such contract, the petitioner-company was delivering consignments to the opposite party who, in his turn, was transporting the same to Surat. The transportation charges used to be paid to the opposite party on his submission of the copy of the consignments note duly signed and acknowledged by the consignee at Surat along with the bills. As usual, on 28-1-1988 the opposite party took delivery of Stock No. 39/ST-2/A/B under two consignment notes bearing Nos. 438573 and 438574 both dated 18-1-1988 and loaded the same separately in two trucks and similarly on 29-1-1988 and 1-2-1988 he took delivery of further parts of Stock No. 39/ST-2/A/B respectively under consignment Notes Nos. 438578 and 438588. Excepting the goods delivered to the opposite party under consignment note No. 438573 dated 28-1-1988, the other consignments were delivered to the consignee at Surat and the three consignment receipts delivered to the petitioner-company on 19-2-1988 and 29-2-1988, but no consignment receipt in respect of consignment note No. 438573 dated 28-1-1988 was delivered to the petitioner-company for a long time for which correspondences were made to the opposite party who kept quiet. The petitioner-company, however, came to know on 1-6-1988 that the goods under the aforesaid consignment note had not been delivered to the consignee when a copy of the letter claiming compensation from the opposite party by the consignee was received. On 3-6-1988, the opposite party laid a claim of Rs. 1,15,000/- towards arrear freight charges and intimated the petitioner-company that the aforesaid consignment had been detained for non-payment of the arrear freight charges. Thereafter, when the petitioner-company made correspondences with the head office of the opposite party at Calcutta a reply was received that the consignment had been detained and that unless a sum of Rs. 97,370/- towards arrear freight charges was paid the consignment detained would be sold for realisation of the arrear freight charges. According to the petitioner-company, the claim of the opposite party was totally false and accordingly a complaint case in I.C.C. Case No. 29 of 1988 was filed in the court of the S.D.J.M., Panposh at Uditnagar alleging that for illegal detention of the consignment the opposite party had committed the offence of criminal breach of trust under S. 406, I.P.C. The learned S.D.J.M. examined the petitioner under S. 200 of the Code and, by order dated 3-8-1988, dismissed the complaint under S. 203 of the Code with the observation that since there was claim and counter-claim between the parties the case was of civil nature.
(3.) Shri B. K. Nayak, the learned counsel for the petitioner has contended that since the opposite party had admitted about entrustment of the consignment to him and also about the non-delivery of the consignment to the consignee, it has to be held prima facie that he has committed the offence of criminal breach of trust under S. 406, I.P.C. particularly when the fact that the demand for arrear freight charges was made about five months after taking delivery of the consignment suggests that the demand was false. Shri B. B. Mohanty, the learned counsel for the petitioner has, on the other hand, submitted that when out of the four consignments received by the opposite party at short intervals, three consignments were duly delivered to the consignee and prior to taking delivery of those consignments, the opposite party was regularly transporting the consignments of the petitioner's company to the consignee, it can hardly be said that there was any mens rea in detaining one of the consignments. According to the learned counsel, as there was no mens rea and since the dispute between the parties was of civil nature only, the learned S.D.J.M. was perfectly justified in dismissing the complaint.
(4.) In a case under S. 406, IPC the prosecution is required to prove that the accused was entrusted with property or he had dominion over property and that the accused misappropriated, or converted the property to his own use or used or disposed of the property or wilfully suffered any person to so dispose of the property dishonestly or in violation of any direction of law prescribing the mode in which the entrusted property should be dealt with or any legal contract express or implied which he had entered into relating to the carrying out of the trust. In this case, there is no controversy that the opposite party had been entrusted with certain property which he retained on the ground that the petitioner was required to pay him a substantial amount towards arrear freight charges. The question, therefore, is whether by retention of the goods entrusted to him, the opposite party can be said to have committed the offence of criminal breach of trust.
(5.) It has been held in several cases that mere retention of a property is not enough to show that the person, who had retained the same, had committed criminal breach of trust or criminal misappropriation. In the case of Challoor Mankakal Narayan Ittirvi Nambudiri v. State of Travancore Cochin, AIR 1953 SC 478 : (1954 Cri LJ 102), their Lordships observed, while dealing with a case of like nature, that the prosecution has to establish first of all that the accused was entrusted with some property and it has to be established further that in respect of that property so entrusted there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violence of a direction of law or legal contract. This decision of the Apex Court was followed by the Patna High Court in Nageswar v. State, AIR 1970 Patna 311 : (1970 Cri LJ 1247). It is thus clear that in cases of criminal breach of trust, the prosecution must prove misappropriation. It is not enough, if it proves that the accused had received the goods. The onus of proof never shifts from prosecution.
(6.) It is then to be seen whether by retention of a particular consignment, the opposite party had committed breach of trust dishonestly in which case alone criminal action would lie against him. The word "dishonestly" has been defined in S. 24, IPC. According to that definition, a person can be said to have done an act dishonestly if it is found that by doing that act he intended to cause wrongful gain to one person and wrongful loss to another person. This takes me to find out whether by detaining the consignment, the opposite party caused wrongful gain to himself or wrongful loss to the petitioner. As already pointed out above, according to the petitioner, by detaining the consignment, the opposite party caused wrongful loss to him because the ground on which the detention was made was false inasmuch as no amount was due towards arrear freight charges. 1 do not find any material to show that the counter claim of the opposite party was really false. On the other hand, the letter of the petitioner dated 15-6-1988 copy of which had been filed in the lower court goes to show that the counter claim of the opposite party was not specifically denied and it was merely stated therein that his conduct was "totally rash, unethical, and falls under bad trade practice," In that view of the matter, it can hardly be said that the counter claim of the opposite party was false, as alleged by the petitioner. When the consignment was detained by the opposite party for realisation of his arrear freight charges from the petitioner, it can hardly be said that such conduct of the opposite party was with any dishonest intention. In view of the fact that there
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was claim and counter claim between the parties, the dispute between them was essentially of a civil nature. (7.) Under S. 203 of the Code, Magistrate gets jurisdiction to dismiss a complaint, if on perusal of the complaint and the evidence recorded under S. 202, he finds that the essential ingredients of the offence alleged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in the complaint or in the evidence that it will be waste of time to proceed further. As already indicated, the petitioner having failed to show prima facie that all the ingredients of the offence under S. 406, IPC were present or that the dispute between him and the opposite party was not of a civil nature only, the impugned order dismissing the complaint is not liable to be interfered with. (8.) In the result, I hold that the revision is without merit and the same is, accordingly dismissed. Petition dismissed.