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High Court Of Orissa
B. N. DASH
BANWARILAL AGARWAL - Appellant
Versus
A.SURYANARAYAN - Respondent
CRIMINAL REVISION 249 Of 1991
Decided On : 10/13/1993
CRIMINAL REVISION - CONVICTION UNDER SECTIONS 420, 408, I. P. C. - JURISDICTION - OFFENCE OF CHEATING - INGREDIENTS - DISHONEST INTENTION - CRIMINAL BREACH OF TRUST - ESSENTIAL ELEMENTS - INTERPRETATION AND APPLICATION OF SECTIONS 405, 408, 420, I. P. C. - FACTUAL ANALYSIS AND LEGAL PRINCIPLES.
Fact of the Case:
The accused-petitioners, Banwarilal Agarwal and V. Tyagarajan, were convicted under Sections 420 and 408, I. P. C. for their involvement in a cheating and criminal breach of trust case related to the delivery of nylon fishing net twines. The accused-petitioners challenged their conviction and sentence in the High Court through criminal revisions.
Finding of the Court:
The High Court found that the trial court had jurisdiction to try the case despite the consignment being delivered in Andhra Pradesh, as the removal of the consignment from Orissa was established. However, the court held that the conviction of both accused-petitioners under Section 420, I. P. C. was not sustainable in law.
Issues: 1. Whether the trial court had jurisdiction to try the case despite the consignment being delivered in Andhra Pradesh? 2. Whether the accused-petitioners' conduct constituted the offence of cheating under Section 420, I. P. C.? 3. Whether the accused-petitioner V. Tyagarajan's conduct amounted to criminal breach of trust under Section 408, I. P. C.?
Ratio Decidendi: 1. On the issue of jurisdiction, the High Court relied on Section 462 of the Code of Criminal Procedure, 1973, which states that a finding, sentence, or order of a criminal court shall not be set aside merely on the ground of an error in the local area where the inquiry, trial, or other proceedings took place, unless it appears that such error has caused a failure of justice. Since the accused-petitioners failed to demonstrate how they were prejudiced by the trial in the court of the Judicial Magistrate First Class, Berhampur, the court upheld the trial court's jurisdiction. 2. Regarding the offence of cheating under Section 420, I. P. C., the High Court emphasized the essential ingredients of deception, fraudulent or dishonest inducement, and causing or likely causing damage or harm to the person deceived. The court found that accused-petitioner V. Tyagarajan's act of delivering the consignment to accused-petitioner Banwarilal without receiving the consignee copy did not constitute deception of the Transport Company, as there was no fraudulent or dishonest inducement. Similarly, the court held that accused-petitioner Banwarilal's failure to retire the consignee copy and deposit it with accused-petitioner V. Tyagarajan within the stipulated time did not establish a dishonest intention at the time of making the inducement. Therefore, the court set aside the conviction of both accused-petitioners under Section 420, I. P. C. 3. On the issue of criminal breach of trust under Section 408, I. P. C., the High Court analyzed the essential elements of the offence, including entrustment or dominion over the property, misappropriation or conversion of the property, and dishonest intent. The court found that accused-petitioner V. Tyagarajan, as an employee of the Transport Company, had dominion over the consignment and delivered it to accused-petitioner Banwarilal in violation of specific instructions from the Calcutta office not to do so without receiving the consignee copy. The court concluded that accused-petitioner V. Tyagarajan's conduct was prima facie dishonest, considering his receipt of specific instructions and the protest by the clerk-in-chief of the godown. Therefore, the court upheld the conviction of accused-petitioner V. Tyagarajan under Section 408, I. P. C.
Final Decision: The High Court allowed Criminal Revision No. 249 of 1991, setting aside the conviction and sentence of accused-petitioner Banwarilal Agarwal under Section 420 read with Section 34, I. P. C. and acquitting him. The court also allowed Criminal Revision No. 250 of 1991 in part, setting aside the conviction of accused-petitioner V. Tyagarajan under Section 420 read with Section 34, I. P. C., but confirming his conviction and sentence under Section 408, I. P. C.
B. N. DASH, J.
( 1 ) THESE two revisions are directed against the judgment of the learned First Addl. Sessions Judge, Berhampur upholding the conviction and sentence passed under S. 409 read with S. 34, I. P. C. against both the accused-petitioners and also under S. 408, I. P. C. against the accused-petitioner V. Tyagarajan. Since both the revisions have been filed against the same judgment and as some of the points involved for determination are identical, they were heard together and are being disposed of by this common judgment.
( 2 ) THE undisputed facts which fall within a small compass are stated as under :- The accused-petitioner Banwarilal Agarwal and his son Binod Kumar Agarwal (another accused since acquitted) carry on business in nylon fishing net twine at Big Bazar, Berhampur town in the name and style of "susil Kumar Bijay Kumar" and of them Binod placed order for supply of 1200 kg. of nylon fishing net twines with Shri Ram Fibers Limited, Calcutta on 31/01/1984, as per Ext. 1 with a request to send the consignments through the New Howrah Transport Co. , Calcutta branch and the relevant documents through the Allahabad Bank/bijaya Bank, Berhampur. On receipt of such order, Shri Ram Fibere Limited delivered two consignments each containing 14 bundles of nylon fishing net twines to the said Transport Co. under consignment note and L. R. Nos. 01304 and 01305, both dated 2-2-1984 with instruction to deliver them to Susil Kumar Bijaya Kumar of Berhampur at R. Suvani and to despatch the consignee copies together with the invoice, delivery chalan and L. Rs. to the Allahabad Bank, Berhampur. After receipt of the aforesaid documents, the Allahabad Bank, Berhampur sent information to Susil Kumar Bijay Kumar to retire the documents on making full payment but the same was not done. After both the consignments reached R. Suvani Branch of the said Transport Co. , accused Binod and his father Banwarilal Agarwal approached the other accused V. Tyagarajan who was then the manager of the aforesaid branch to deliver the consignment under L. R. No. 01304 dated 2-2-1984 valued at Rs. 57,536/ - without retiring the relevant documents from the Allahabad Bank, Berhampur. When accused V. Tyagarajan declined to release the goods without receiving the consignee copy, they returned. Again on 22-2-1984, accused Banwarilal approached accused V. Tyagarajan and requested him to deliver at least the consignment under L. R. No. 01304 dated 2-2-1984 promising that he would retire the relevant documents from the Allahabad Bank Berhampur on making full payment and would deposit the consignee copy on 25-2-1984. Notwithstanding specific instructions to him by the Calcutta office of the Transport Co. not to release the consignments without obtaining the consignee copies from Susil Kumar Bijay Kumar, accused V. Tyagarajan directed his clerk-in-charge of the godown to release the consignment under L. R. No. 01304 dated 2-2-l984 but when the clerk-in-charge of the godown declined to deliver the said consignment in view of the specific instruction of the Calcutta Office, accused V. Tyagarajan issued a letter, Ext. 16/1 to the said clerk directing him to release the said consignment. In view of such written direction, the clerk-in-charge of the godown having released the consignment under L. R. No. 01304 dated 2-2-1984, accused Banwarilal received the same with a promise to deposit the consignee copy on or before 25-2-1984 (vide Ext. 17 ). The relevant documents having not been retired the Allahabad Bank authority brought that fact to the notice of Shri Ram Fibers Limited, Calcutta and ultimately the, latter instructed the Transport Co. to direct his Branch Manager R. Suvani branch to re-book both the consignments to Calcutta branch. Being advised by the Calcutta Office, the remaining consignment under L. R. No. 01305 dated 2-2-1984 was re-booked to Calcutta office. At that point of time, the Transport Co. at Calcutta came to know that the other consignment
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