An act amounting to breach of contract or violation of law may constitute an offence if done with the requisite mens rea, and the Carriers Act does not preclude punishment under the IPC if the necessary ingredients are established.

The 3rd accused in C.C. No. 63 of 1980 on the file of the Judicial I Class Magistrate, Cochin, has filed this petition under section 482 of the Cr.P.C. (for short the Code) to quash the proceedings.

2. The respondent herein filed a private complaint which was taken on as C.C. No. 63 of 1980 by the Judicial First Class Magistrate, Cochin. Four persons were shown as accused in the complaint. The 1st accused is the proprietor of Western Carriers, which is described as a common carrier in this petition. The Head Office is at Calcutta. The 2nd accused is the Manager of the Calcutta Office of the Carrier. The 3rd accused is the Manager of Cochin Office of the Carrier and the 4th accused is the New Delhi Manager of the Carrier. The allegations in the complaint can be summarised as follows : The complainant entrusted certain goods shown in the schedule (13 consignments, two of which were entrusted on 13-9-1977 and the rest on 10-1-1978) at Cochin to the 3rd accused for carriage a safe delivery against presentation of consignee copies of Lorry Receipts at New Delhi by the consignees. The Carriers are bound in law to deliver the cargo on surrender of the consignee copies of lorry receipts. The consignee copies were sent through Central Bank of India and negotiated through M/s. Gandhi Sons, Cochin. But the lorry receipts were not honoured by the consignees with reference to the 13 items in the schedule. There were three different consignees. The complainant through his representatives demanded delivery of the cargo by presenting all the lorry receipts to the 4th accused. But delivery was not made. The complainant again asked for delivery from the 4th accused through the Notary Public of Delhi without any success. The accused jointly and dishonestly misappropriated or converted to their own use the goods in the 13 consignments of the total value of Rs. 1,07,400/- and thereby committed criminal breach of trust. They have fraudulently disposed of the goods in violation of law and thereby made unlawful profit for themselves and caused illegal loss to the complainant. In order to cover their own fraud and criminal breach of trust, they have raised false, illegal and untenable contentions in writing while verbally promising to settle the matter by making good the losses to the complainant. The consignments were insured with the Oriental Fire & General Insurance Co. Ltd. The accused as well as the insurer were promising to settle the matter by reimbursing the losses incurred by the complainant. But they have failed to do so. Hence the complaint was filed alleging offences punishable under sections 407 and 193, I.P.C. read with Section 34 I.P.C.

3. A careful reading of the complaint is sufficient to show that the complaint alleges all the ingredients of an offence under section 407 read with Section 34 I.P.C. Specifically, I may refer to paragraph 5 of the complaint which deals with the mens rea of the offence. Therefore, it cannot be said that the averments in the complaint do not disclose an offence under section 407 I.P.C. I may also say that the same is not the position with reference to the offence under section 193 I.P.C.

4. The learned counsel for the petitioner contended that notwithstanding the fact that the averments in the complaint make out an offence under Section 407 I.P.C., the complaint cannot lie inasmuch as the act alleged is an act in breach of contract or an act in breach of a statutory duty under section 8 of the Carriers Act, Act III of 1865.

5. A careful reading of Section 405 I.P.C. will show that it takes in within its fold acts amounting to breach of contract or violation of law. Such an act may be an offence if it is done with the requisite mens rea. Such an act will not be an offence if the requisite mens rea is absent. The duty of the carrier as per the contract between the parties was to deliver the goods to the consignee on presentation of the consignee copy of the lorry receipt, or in the alternative, r