CRIMINAL APPEAL No.21 OF 1993 (U/S) Appeal against the judgment and order dated 18.08.1992 passed in Complaint Case No. 586 of 1974, Trial No. 9 of 1992 by Shri A.K. Srivastava, Judicial Magistrate, 1st Class, Saharsa. THE BIHAR STATE OF WARE HOUSING CORPORATION, through its Superintendent Sri P.C. Choudhary, P.S. and District-Saharsa. ……… (Appellant) Versus 1. State of Bihar. 2. NAGESHWAR BHAGAT, S/o Sri Sital Bhagat, Village+P.O.-Mahishi, District-Saharsa. …..…… (Respondents). ----------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ************* Anjana Prakash, J. No one appears. The appeal is directed against the judgment dated 18.08.1992 passed by Judicial Magistrate, 1st Class, Saharsa in Complaint Case No. 586 of 1974, Trial No. 9 of 1992 by which the court below has acquitted the Respondent No. 2 of the charge under Section 409 of the Indian Penal Code. The prosecution case is that the Respondent No. 2 was appointed by the appellant as its agent for sale of seeds. For the said reason the accused had not entrusted the seeds as per directions and permits issued by the authorities concerned. - 2 - Unfortunately, the accused sold the seeds but did not deposit the sale proceeds amounting to Rs. 1, 25, 274.47 Paise which he was bound to deposit. During trial the prosecution examined three witnesses out of whom P.W. 1 is the Peon-cum- Distributing Operator, P.W 2 was the Regional Manager and P.W. 3 was the Sales Tax Officer. Apart from the oral evidence of these witnesses a number of documents were exhibited which reveal the transactions between the parties. On behalf of the defence also three witnesses were examined and a number of documents were exhibited. The defence mainly brought his document to show that it was not a case of entrustment of criminal breach of trust but rather a case of accounting and for non-payment of dues the best remedy would be the Civil Court. The trial court after considering the evidence of witnesses and the documents relied upon Exhibit-6 which was the agreement deed between the parties the deduction on the basis of which was that in fact there was no entrustment of sold seeds to the agent and if the accused had not paid the Corporation the value of the sold seeds he could not be proceeded under Section 409 of the - 3 - Indian Penal Code. The trial Court held that the prosecution to satisfy the essential ingredients of Section 409 of the Indian Penal Code had to prove entrustment in the capacity of owner and agent but in the present case it had not done so and merely by the accused diverting the sale proceeds in fact had not committed criminal breach of trust. Since the relationship between complainant and the accused was of seller and buyer and it was a straight-sale and the relation-ship between two was not of owner and agent, the prosecution case had failed. In conclusion, the trial court acquitted the accused of charge under Section 409 of the Indian Penal Code. In the present case, no one has appeared to press the appeal and therefore this court applying itself to the documents on record does not feel inclined to take a different view from that of the trial court and under the circumstances, the appeal is dismissed. Patna High Court Dated 3rd December, 2009 NAFR/Vikash. (Anjana Prakash, J.)