CRR No.2639 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.2639 of 2010 (O&M) Date of decision: 24.03.2011 Food Corporation of India ....Petitioner Versus Jograj and another ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present: - Mr. Hari Pal Verma, Advocate, for the petitioner. Mr. Rajeshwar Singh Thakur, Advocate, for the respondents. ***** ALOK SINGH, J These two revisions bearing Criminal Revision No.2639 of 2010 titled “Food Corporation of India Vs. Jograj and another” and Criminal Revision No.2637 of 2010 titled “Food Corporation of India Vs. Sunil Kumar and others” are being taken with the consent of the learned counsel for the parties together since identical questions of law and facts are involved in these two revisions. For the sake of brevity, this Court would like to take facts of CRR No.2639 of 2010. Brief facts of the present case are that accused were owners/partners of Adarsh Rice Mills, Dhariwal. Food Corporation of India through its Senior Manager has filed a complaint against these accused persons to the effect that the accused were supplied 110077 bags of paddy weighing 7151 quintal 38 kg and 5155 bags of super fine CRR No.2639 of 2010 (O&M) -2- paddy weighing 3344 quintal 97 kg. However, the accused persons after milling have committed mis-appropriation of trust by not returning 2200 bags of paddy weighing 1429 quintal 44 kg 200 gms and 110 bags of super fine paddy weighing 71 quintal, 60 kg and 800 gms. Similarly, the accused had not returned some of the empty gunny bags given to them for returning these after filling with rice out of milled paddy. The price of the mis-appropriated goods was Rs.11,79,434.79 paise. After investigation, challan against accused was presented in the Court for an offence punishable under Sections 406/409 IPC. Prosecution in order to prove its case examined PW1 Sukhdev Raj A.G.-II, PW2 Karnail Singh Assistant Manager, PW3 HC Prem Pal, PW4 ASI Kidar Nath, PW5 ASI Tara Chand. After the prosecution evidence, entire incriminating evidence was put to the accused under Section 313 Cr.P.C., where accused have denied the allegations and pleaded false implication. From the side accused Narinder Pal Tuli, Rattan Lal Record Keeper and Pritam Piara A.G.I were examined. Learned trial Court having discussed entire evidence found the accused guilty for an offence punishable under Section 406 IPC and has acquitted the accused for an offence punishable under Section 409 IPC and sentenced the accused to undergo rigorous imprisonment for a period of 1 ½ years and to pay a fine of Rs.1,000/- each and in default of payment of fine to undergo further rigorous imprisonment for two months for an offence punishable under Section 406 IPC. Feeling aggrieved, accused filed appeal being Criminal Appeal No.74 of 2006 before the Additional Sessions Judge (Adhoc) CRR No.2639 of 2010 (O&M) -3- Fast Track Court, Gurdaspur, which was allowed by the learned Additional Sessions Judge (Adhoc) Fast Track Court, Gurdaspur, vide impugned judgment dated 24.11.2009. Learned Additional Sessions Judge has observed that un- shelled paddy was supplied to the accused for returning the rice to the quantity settled between the parties and for this there was a detailed agreement between the parties; the agreement is Ex.PW2/A; as per agreement there was a joint custody of the department as well as the miller and a person of the department was deputed to the premises of the miller; at the very beginning of the agreement at clause 2 it is clearly mentioned that the Millers may associate him at the time of paddy purchases in the mandis and weighbridges cross check its quality and quantity respectively. Paddy shall be moved from mandis to mill premises to be stored in joint custody of FCI and the miller and for the transportation and stocking operations in mills persons shall be arranged and cost against these operations shall be borne by the FCI. Now as per this clause the FCI is involved in storage of the paddy in the premises of the mill along with the millers. From this, it is clear that FCI was in joint possession of the stocks. Learned Appellate Court has also observed that dispute was referred to the Arbitrator as per the Arbitration Clause and a loss of Rs.11,79,434/- was assessed by the Arbitrator. Learned Appellate Court has further observed that offence punishable under Section 406 IPC is not proved. Therefore, after observing that dispute seems to be of civil nature, allowed the appeal. Feeling aggrieved Food Corporation of India has filed present CRR No.2639 of 2010 (O&M) -4- revision. I have heard learned counsel for the parties and have perused the record carefully. Record reveals that there is no allegation that accused have removed the the paddy or have shelled rice outside the premises of the mill, the only allegation against the accused is that after shelling accused failed to account for the same as per the agreement and has not returned entire rice bags and thus has caused loss of Rs.11,79,434.79 to the department. In the opinion of this Court, shortage of paddy itself cannot be a ground to invoke Section 406 IPC. Section 405 IPC reads as under: - “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”. To bring the case within the four corners of Section 405 IPC, prosecution has to prove accused have dishonestly (i) mis-appropriated; or (ii) has converted to their own use that property; or (iii) has used or disposed of that property in violation of any direction. In the present case, FCI has not contended that accused have taken the rice for their personal use or have disposed of (property) in violation of any direction or have converted that property to their own use. Moreover word “dishonestly” used under Section 405 IPC is defined under Section 24 IPC, which reads as under: - CRR No.2639 of 2010 (O&M) -5- “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”. To prove guilt, prosecution has to prove that there is mens rea on the part of the accused of causing wrongful gain to himself or wrongful loss to FCI. Record reveals as per the Arbitration Clause, matter was referred to the Arbitrator and as per the Arbitration Clause, award for loss of Rs.11,79,434/- was passed, therefore, there is no question of loss to the department. Therefore, present case does not fall within the four corners of Section 405 IPC. Division Bench of this Court in the matter of Punjab State Civil Supplies Corporation (PUNSUP) Vs. Deepak Kumar and another, 2007(2) RCR (Criminal) 550, in paragraph No.5, has observed as under: - “We have also examined the judgment of the learned Single Judge of this Court in the case of Pawan Kumar v. State of Haryana, 2006(2) RCR(Criminal) 162, wherein the judgment of Hon'ble Apex Court in the case of Kailash Verma v. Punjab State Civil Supplies Corporation and another, 2005(1) Apex Criminal 339 : 2005(1) RCR (Criminal) 727 has been discussed. There is no dispute that presence of an arbitration clause in an agreement itself would not entail automatic quashing of an FIR under Section406 IPC. However, in identical facts, as detailed in the judgment of Hon'ble the Apex Court, the position would be different. Thus, in a case where there is an arbitration clause and a Government department entrusts paddy to a party for dehusking and that party fails to return rice after shelling as per the agreement, no offence under Section 406 IPC would be made out.” Learned counsel for the revisionist/FCI has placed reliance on the judgment of learned Single Judge (A.N. Jindal, J.) in the case of Food Corporation of India Vs. Arjan Dev, Criminal Revision No.627 CRR No.2639 of 2010 (O&M) -6- of 2000 decided on 10.9.2007, wherein learned Single Judge (A.N. Jindal, J.) has observed as under: - “Finding no substance in the argument that since the agreement had given a civil right to the complainant to have redress of his grievance by way of placing his cards before the arbitrator and settling the dispute by having recourse to that remedy, I need to reiterate that the exercise of agreement is no ground to escape the criminal liability. The act of an accused would be examined in view of the parameters of the criminal law. The court before fastening liability on an accused for an offence under Sections 406 and 408 IPC,is to examine whether there was element of trust, the breach thereof and he acted in violation of specific direction and misappropriated the article to himself. If that is so, irrespective of any such agreement, he cannot escape the criminal liability, which may be proceeded against him by setting the criminal law in motion.” Ratio of judgment is to be understood on the facts of that particular case. As discussed hereinabove FCI is not contending that paddy was removed or taken out from the mill premises nor contending that rice were shelled outside the premises of the mill nor contending that miller has taken the rice in his personal use nor saying that miller has dealt with the paddy in a different manner than provided in the agreement, therefore, in the opinion of this Court in the absence of dishonest intention and in the absence of violation of any specific direction of the FCI mere shortage of rice shall not constitute any offence punishable under Section 406 IPC. In the opinion of this Court, while exercising revisional jurisdiction, judgment of acquittal should not be lightly interfered with even if two views are possible on the assessment of the same evidence. Revisional Court ordinarily shall interfere only when revisional Court finds that any important piece of evidence is escaped or overlooked by CRR No.2639 of 2010 (O&M) -7- the trial Court, which proves the guilt of the accused. In the opinion of this Court, impugned judgment does not require any interference. Moreover, present revision has been filed with a delay of 197 days and no plausible reason has been shown to condone the huge delay, therefore, the present revision is dismissed on the ground of delay as well as on merits. (Alok Singh) Judge March 24, 2011 R.S.