IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 Crl.Rev.Pet.No. 683 of 2001() ----------------------------- CC.369/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... PETITIONER(S)/COMPLAINANT: ------------------------------------------- SAHAJAN, S/O ISMAIL KUNJU, OWNER OF LIJA SOAP WORKS COMPANY, KAZHANI, KAVUSSERY AMSOM, ALATHUR TALUK. BY ADV. SRI.JOHN JOSEPH(ROY) SRI.JEFRIN MANUEL RESPONDENT(S)/ACCUSED 1 TO 4 AND STATE: ----------------------------------------------------------------- 1. SUDHEVAN, S/O MADHAVAN, KUPPATHU VEEDU, NELLIAMKUNNAM, KATTUSSERY, ALATHUR TALUK, PALAKKADU DISTRICT. 2. RAJAN, S/O RAMAN EZHUTHACHAN, POOVAKODE VEEDU, MANAPPADOM, KANNAMBRA P.O., PATTOLA, ALATHUR TALUK, PALAKKADU DISTRICT. 3. K.N.MUTHU, S/O NARAYANAN, KUNNIL VEEUD, PRADHANI, VADAKKENCHERY P.O., ALATHUR TALUK, PALAKKADU DISTRICT. 4. SURESH, S/O PONNAN, NOCHIPARAMBU, AYAKKADU AMSOM, ALATHUR TALUK, PALAKKADU DISTRICT. 5. STATE OF KERALA, REPRSENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SAJAN VARGHEESE K. FOR R1TO4 SRI.JEBY JACOB FOR R1TO4 PUBLIC PROSECUTOR SHRI P.RAVINDRA BABU FOR R5 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24.9.2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.R.P.NO. 683 OF 2001 ======================= Dated this the 24th September 2009 ORDER Revision petitioner is the complainant and respondents 1 to 4 are accused Nos.1 to 4 in C.C.No.369/1999 on the file of the Judicial First Class Magistrate Court, Alathur. The learned Magistrate discharged the accused under Section 245(1) of the Code of Criminal Procedure as per order dated 28-4-2000. That order has been challenged in this revision. 2. The above case was on the basis of a private complaint filed by the complainant on 14-5-1999 as C.M.P.2300/1999 for the offence alleged under Sections 403,406,408,417,418 read with Section 34 of the Indian Penal Code. The sworn statement of the complainant was recorded by the learned Magistrate on 14-5-1999. Two witnesses were examined on 2-6-1999. Thereafter, the learned Magistrate took cognizance of the offence under Section 409 of the Indian Penal Code against accused CRRP.683/2001 -2- 1 to 4. After appearance of accused 1 to 4 in pursuance of the summons issued to them, the complainant was examined as PW1 on 14-2-2001 and Exts.P1 and P2 were marked. Chief examination of PW1 was taken and cross was deferred as revealed from the deposition of this witness. The case was posted for hearing before framing charge on different dates. On 18-4-2001, all accused were present and complainant was absent. The learned Magistrate heard the counsel on framing charge and posted the case to 28-4-2001. On that day, the complainant was absent and the accused were discharged under Section 245(1) of the Code of Criminal Procedure, which is challenged in this revision. 3. The case of the complainant in the complaint is that he is conducting a small scale soap manufacturing unit at Kazhani and he appointed accused 1 to 4 as the distribution agents on specific agreements. Area of distribution was specified and all the accused were provided with separate TVS-50 moped for supply. Goods worth Rs.20,000/-each was initially given to all the accused. Accused have to pay the price of next supply and CRRP.683/2001 -3- return the vehicles to the complainant on each day evening. The accused were prohibited to supply any materials of other manufacturers. The accused violated the agreement and on demand of the vehicle and the amount, the accused threatened and intimidated the complainant and they are illegally and unauthorisedly retaining the vehicles with them. The acts of the accused are criminal breach of trust, cheating and other offences under Sections 403,406,408,417,418 read with Section 34 of the Indian Penal Code. Hence, the complaint was filed for search and seizure of the vehicles and for its custody. Pending the proceedings, the first accused produced vehicle, KL-9-E 4202– TVS.50 Moped before court on 19-5-1999 and it was released to the complainant/petitioner as per order dated 5-6-1999 in C.M.P. No.2425/1999 and C.M.P. No.2495/1999. 4. Revision petitioner is contending that the court below did not properly appreciate the evidence and discharged the accused from the criminal offences on some technical unsustainable grounds. It was contended that a combined reading of the complaint and the deposition of the complainant, sufficient CRRP.683/2001 -4- pleadings were made and ample evidence were brought before the court to establish a prima facie case against the accused which warrants conviction, if unrebutted. The petitioner has established that there is principal-agent relationship between the parties and soaps worth Rs.20,000/- and TVS-50 mopeds were entrusted with the accused and that by misusing the property entrusted with them and threatening the complainant while demanding the property on 4-5-1999, the accused committed criminal breach of trust against the specific terms on which the agency was established. On these evidence on record, the court below went wrong in concluding that there are no allegations that the vehicles entrusted to the accused has been misappropriated and discharged the accused. Therefore the impugned order is to be set aside and issue direction to the court below to proceed against the accused. 5. Learned counsel appearing for the petitioner and the respondents and the learned Public Prosecutor were heard. 6. It is argued by the learned counsel appearing for the revision petitioner that though the offence alleged against the CRRP.683/2001 -5- accused in the complaint were under Sections 403, 406,408, 417, 418 read with Section 34 of the Indian Penal Code, the learned Magistrate after recording the sworn statement of the complainant and the evidence of two witnesses, cognizance was taken under Section 409 I.P.C. After the appearance of the accused, the complainant was examined as PW1 and the written agreements executed by two of the accused were marked as Exts.P1 and P2. Those agreements were produced to prove the relation between the accused and the complainant to attract the ingredients under Section 409 I.P.C. But the court below mis- construed the fact that the complaint is not for enforcement of the terms of the agreement between the complainant and the accused, which was categorically stated in the complaint itself. Principal-agent relationship between the petitioner and the accused, the entrustment of the property by the petitioner to the accused which was misused by the accused and thereby committed criminal breach of trust in respect of that property of TVS-50 mopeds etc. were already established and this fact was not properly appreciated by the court below, it is submitted. CRRP.683/2001 -6- 7. According to the learned Public Prosecutor, cognizance was taken under Section 409 I.P.C. against the accused by the learned Magistrate after recording the sworn statement of the complainant and the evidence of two witnesses on the basis of the private complaint filed by the petitioner. The case was taken on file as C.C.No.369/1999. All the accused appeared before court on receipt of summons issued to them. Thereafter, the learned Magistrate shall proceed to hear the prosecution and take all such evidence in support of the prosecution. In the present case the learned Magistrate already complied with Section 244(1) of the Code of Criminal Procedure and sufficient evidence is there to establish a triable case to proceed against accused 1 to 4 under Section 246(1) of Cr.P.C. submits the learned Public Prosecutor. 8. The learned counsel for the respondents opposed the arguments advanced by the opposite side and submitted that after considering the evidence adduced by the petitioner in the correct perspective, the court below discharged the accused and there is no illegality for any interference. CRRP.683/2001 -7- 9. To prove the offence under Section 409 I.P.C. alleged against accused 1 to 4, the petitioner was examined before court below as PW1. He has deposed that he is the owner of factory Lija Soap Works and accused 1 to 4, who are the distribution agents, were appointed for distributing soaps manufactured in his factory. All the accused were appointed as distribution agents of the complainant after executing separate agreements by each of the accused with the complainant . The agreement executed by accused 1 and 2 dated 12-1-1998 and 15-4-1998 were marked as Exts.P1 and P2 respectively. The terms and conditions were specifically stipulated in the agreement. The route through which soaps are to be supplied and about the return of the amount and the vehicle etc.are also stipulated therein. According to PW1, two other agreements executed by accused 3 and 4 were not produced before court. They have returned the amount of Rs.20,000/- and did not return the vehicles entrusted to them as agreed in the agreement. The complainant have discussed with the accused for the return of the vehicle and the amount entrusted to them. At that time, driver Ali and salesman CRRP.683/2001 -8- Sobhana Prakash were present. Accused did not return the vehicles and threatened the complainant. Accused had not acted in accordance with the stipulations in the agreement. One of the accused returned the vehicle through court and three other vehicles were not returned. All the accused have cheated the company and caused loss to the company. Thus the accused as agents have violated the terms in the agreement and they should be punished for the same. This is the evidence of PW1 tendered by him before the learned Magistrate under Section 244(1) of the Code of Criminal Procedure as the evidence for prosecution. Thereafter, the learned Magistrate posted the case for hearing before framing charge to different dates. On some dates, the complainant was absent and on some dates some of the accused were absent. On 18-4-2001 all accused were present and the complainant absent. His absence was excused on application. The learned Magistrate heard the counsel on framing charge and posted the case to 28-4-2001. On 28-4-2001, the complainant was absent and his absence was excused. The learned Magistrate discharged the accused under Section 245(1) of CRRP.683/2001 -9- Cr.P.C. 10. The point to be decided in this case is that whether any triable case is made out against accused 1 to 4 to proceed further under Section 409 of I.P.C. and whether the discharge of the accused made by the learned Magistrate under Section 245(1) is liable to be interfered. 11. It is the case of the complainant in the complaint that accused 1 to 4 are his distribution agents and they were appointed after executing agreements by each of the accused with the complainant. The area of distribution of soaps manufactured in the factory of the complainant, Lija Soap Works for which four vehicles, i.e. TVS-50 Moped for the purpose of supply of goods worth Rs.20,000/-were entrusted along with the above mentioned agreements executed on different dates. Out of the four agreements, two agreements executed by accused 1 and 2 with the complainant on 12-1-1998 and 15-4-1998 were produced as Exts.P1 and P2. After examining the complainant as PW1 in chief examination, cross was deferred as noted in the deposition. According to the complainant, the accused have CRRP.683/2001 -10- violated the terms in the agreement and they were using the vehicles supplied to them for the sale of other goods of other company which is against the terms agreed in the agreement and they were illegally and unauthorisedly retaining the vehicle with them in spite of the demand made by the complainant. But nothing of this sort has been deposed by PW1 before the court below. The definite case of the petitioner as PW1 was that he entrusted four vehicles to accused 1 to 4 as his agents for the purpose of using the same for distribution of soaps manufactured in his factory. Separate agreements were executed with specific terms and conditions. All the accused violated the conditions in the agreements and did not return the vehicles entrusted to them as agreed in the agreement, thereby committed criminal breach of trust in respect of the vehicles. Evidence is adduced by the petitioner to prove entrustment of the vehicles to accused 1 to 4 (1 each) as agents of the petitioner. But to proceed against them for the offence of criminal breach of trust, some evidence should be there to establish the same. The mere possession of the vehicles owned by the petitioner with accused 1 to 4, that too in CRRP.683/2001 -11- accordance with the terms and conditions in the agreement executed between them while entrusting vehicle to them will not attract the offence under Section 409 I.P.C. The petitioner has no case that the said agreements were cancelled. So also nothing has been stated by PW1 regarding dishonest misappropriation of the vehicles by any of the accused and the use of the same for their own benefit or for the benefit of someone else. Thus no evidence is adduced to establish that accused 1 to 4 used the vehicles in contravention of the conditions of the entrustment stipulated in the written agreements which have not been cancelled. No other witness was examined on the side of the petitioner to prove the allegation of criminal breach of trust by accused 1 to 4. There is no evidence to prove that any of the accused were using the vehicles for any other purpose. The case was posted for hearing before framing charge to various subsequent dates. Then the learned Magistrate heard the counsel on framing of charge and has correctly discharged the accused under Section 245(1) of the Code of Criminal Procedure after evaluating the allegations in the CRRP.683/2001 -12- complaint and the evidence tendered by the complainant as PW1 for the prosecution and for the reasons recorded in the order that no prima facie case is made out to attract the offences alleged against the accused. 12. Considering the facts of the case and the evidence adduced by the complainant as PW1, I find no reason to interfere with the order passed by the learned Magistrate and this revision petition is liable to be dismissed. 13. In the result, the Criminal revision petition is dismissed. M.C. HARI RANI JUDGE ks. CRRP.683/2001 -13- M.C. HARI RANI, J. ========================== CRL.R.P.NO. 683 OF 2001 ORDER 24-9-2009 ===========================