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 Section 409 read, with Section 34, I.P.C. against both the accused-petitioners and also under Section 408, I.P.C. against the accused-petitioner V. Tyagarajan, Since both the revisions have been tiled 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 Fibere Limited, Calcutta on January 31, 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 2-2-1984 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 under L. R. No. 01306 dated 2-2-1984 valued at Rs. 57,836/- had been delivered to Susil Kumar Bijay Kumar of Behrampur without the consignee copy or without receiving any cash payment. The Calcutta Office of the Transport Co. ultimately made good the loss to Shri Ram Fibers Limited and finding that Susil Kumar Bijay Kumar and their Branch Manager, R. Suvoni had defrauded them, one of the R.B. Officers lodged a first information report at the concerned police station, but since no action was taken for a long time, A. Suryanarayan, a partner of Shri Ram Fibers Limited having lodged a complaint, both the accused-petitioners and Binod Kumar Agarwal faced trial in the court of the Judicial Magistrate First Class, Berhampur. All the three accused persons were charged under Section 420 read with Section 34, I.P.C. and accused V. Tyagarajan was further charged under Section 408, I.P.C.
3. All the accused persons denied having committed any offence. Accused Binod took the stand that except placing order for supply of 1200 kgs. of nylon fishing net twines with Shri Ram. Fibers Limited he having played no other role was not liable for the charge levelled against him. Accused Banwarilal admitted having released the consignment with promise to deposit the consignee copy in the R. Suvani Branch of the Transport Co. but according to him, he could not release the consignee copy from the Allahabad Bank, Berhampur on account of financial stringency. According to him therefore, his liability if any, was civil in nature. Accused V. Tyagarajan admitted having delivered the consignments to accused Banwarilal Agarwal on his promise to deposit the consignee copy by 25-2-1984 after releasing the same from the Allahabad Bank, Berhampur on full payment. According to him, he had to take such a course for the future business prospect, of the company in which he was working and not with any mala fide intention. He has examined himself in support of his plea.
4. At the trial, the prosecution examined so many as six witnesses of whom P.Ws. 1 and 6 are the employees of Shri Ram Fibres Limited; P.W. 2 is the clerk in Allahabad Bank, Berhampur and P.Ws. 3 to 5 are the partner and clerks of the Transport Co. On a consideration of the entire evidence on record, the learned Judicial Magistrate First Class convicted ail the accused persons under Section 420 read with Section 34, I.P.C. and sentenced each of them to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- in default, to undergo rigorous imprisonment for a further period of three months. Accused V. Tyagarajan was further convicted under Section 408, I.P.C. and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default, to undergo rigorous imprisonment for a further period of three months. The substantive sentences in respect of accused V. Tyagarajan were directed to run concurrently. Against such judgment and order, while accused V. Tyagarajan filed Criminal Appeal No. 165 of 1989 in the court of the Sessions Judge, Ganjam, Berhampur, accused Binod and Banwarilal together preferred Criminal Appeal No. 169 of 1969. Both the appeals, on transfer to the file of the learned First Additional Sessions Judge were respectively registered as Criminal Appeal No. 45 of 1990 and Criminal Appeal No. 46 of 1990, but both the appeals were disposed of by a common judgment. While acquitting accused Binod of the charge levelled against him, the learned. First Addl. Sessions Judge upheld the conviction and sentence passed against accused V. Tyagarajan and Banwarilal. Being aggrieved by such judgment, as stated above, these two revisions have been filed.
5. Mr. N.C. Pad, the learned Counsel for the petitioner Banwarilal has raised two contentions. His first contention is that the consignments having been delivered at Ichhapuram, a place in the State of Andhra Pradesh, the learned Judicial Magistrate First Class, Berhampur had no jurisdiction to try the case and as such the conviction of accused Banwarilal which has been upheld by the appellate court is not sustainable in law. His second contention is that on the facts of the case, the liability if any, of accused Banwarilal was of a civil nature and, therefore, he could not be convicted under Section 420 read with Section 34, I.P.C. Mr. P.K. Misra-II, the learned Counsel for the accused-petitioner V. Tyagarajan has also raised the question of jurisdiction, besides contending that the accused V. Tyagarajan could not be convicted under Section 408, I.P.C. he having delivered the consignment on believing the promise held out by accused Banwarilal to enhance the business prospect of the Transport Co. under which he was working. The learned Counsel for the complainant-opposite party and the learned Addl. Standing Counsel, on the other hand, support the impugned judgment.
6. On the question of jurisdiction, both the courts have found on assessment of evidence that the consignment having been removed from R. Suvani which is a place within the Sadar Sub-Division of Berhampur in Orissa the Judicial Magistrate First Class who tried the case had jurisdiction. In view of such concurring finding of fact, this Court sitting in revision cannot disturb the same. However, according to Section 462 of the Code of Criminal Procedure, 1973 (for short 'the Code') no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. Vide Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116 : (1956 Cri LJ 291); Mangaldas v. Maharashtra State, AIR 1966 SC 128 : (1966 Cri LJ 106) and Nasiruddin Khan v. State of Bihar, AIR 1973 SC 186 : (1973 Cri LJ 241). The learned Counsel appearing for the petitioners are unable to show as to how the accused persons were prejudiced for their trial in the court of the Judicial Magistrate First Class, Berhampur. In that view of the matter, even if the learned Judicial Magistrate First Class, Berhampur had no jurisdiction to try the case, his order of conviction and sentence which has been upheld by the appellate court is not liable to be set aside. So, the first contention must fail.
7. Coming to the conviction of the accused-petitioners under Section 420, I.P.C., the ingredient of the offence of cheating have to be borne in mind. The ingredients are :
(1) Deception of any person.
(2) Fraudulently or dishonestly inducing such person--
(a) to deliver any property to any person; or
(b) to consent that any person shall retain any property; or
intentionally inducing the person to so Or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
So far as accused V. Tyagarajan is concerned, both the courts below have found that the said accused committed the offence of cheating because he made the Transport Co. to sustain loss by delivering the consignment to accused Banwarilal without receiving the consignee copy. In order to constitute an offence of cheating, there must be two persons, one cheating and the other who cheated. By delivering the consignment to accused Banwarilal, it can never be said that accused V. Tyagarajar deceived the Transport Co. as has been held by both the courts below because there was no fraudulent or dishonest inducement by him to any authority of the Transport Co. In that view of the matter, the conviction of accused V. Tyagarajan under Section 420, I.P.C. which was been upheld by the appellate court is not sustainable in law.
8. As regards accused Banwarilal, according to the courts below, he committed the offence of cheating because, as promised by him at the time of taking delivery of the consignment, he did not retire the consignee copy from the Allahabad Bank, Berhampur on making payment and did not deposit the same with accused V. Tyagarajan within the time stipulated or at any time thereafter till commencement of the trial. The question arises, whether for such conduct, his conviction under Section 420, I.P.C. which has been upheld by the appellate court can be legally sustained. For the offence of cheating there must be a deception which should precede the fraudulent or dishonest inducement and it must be established that the intention of the accused was dishonest at the time of making the cheat. Similar view has been taken by this Court in Hatiram Naik v. Surendra Kumar Mallick, 1986 Cri LJ 1271 and also in Arnab Kumar Mitra v. Mohanty, 1992 (II) DLR 484. In G. Anji v. Sunenda Kar alias Gore Babuj (1978) 46 CLT 560, the respondent and his mother were heavily indebted to the appellant and when the appellant pressed for payment of his dues the respondent issued a crossed cheque on the United Bank of India Limited, Cuttack but when the cheque was presented for encashment the same was dishonoured with the endorsement 'Full cover not received'. The question that arose for consideration in that case was whether the respondent had committed the offence of cheating. Referring to the decision in Mrs. Veeda Menezes v. Yusuf Khan Haji Ibrahim Khan, AIR 1966 SC 1773 : (1966 Cri LJ 1489) of the Apex Court and other decisions of this Court, Lahore High Court, Kerala High Court and Bombay High Court, a Division Bench of this Court answered the question in the negative holding that the issuance of a cheque for discharging a loan when the person issuing the cheque had no sufficient amount to cover the cheque will not by itself constitute the offence of cheating in the absence of anything more. The said Division Bench decision has been followed by this Court in Ganga Traders and Industries (P) Ltd. v. Santosh Kumar Agarwalla, (1989) 67 CLT 719. In view of the above, to secure a conviction of accused Banwarilal for the offence of cheating, the prosecution was required to prove that at the time the said accused made inducement to accused V. Tyagarajan to deliver the consignment he had no sufficient money to retire the consignee copy from the Allahabad Bank, Berhampur which he had undertaken to deposit on or before 25-2-1984, but there is absolutely no evidence on that score. On the other hand, accused Banwarilal has taken the plea that on account of the financial stringency, he could not retire the consignee copy from the Bank on making payment. Under these circumstances, it cannot be said, as has been held by both the courts below, that accused Banwarilal had the dishonest intention when he induced accused V. Tyagarajan to deliver the consignment to him. That being so, the conviction of accused Banwarilal under Section 420 read with Section 34, I.P.C. cannot be sustained in law. In Ram Avtar Gupa v. Gopal Das Taliwal, 1983 SCC (Cri) 331 : (AIR 1983 SC 1149) on which reliance has been placed by the appellate court, the question for consideration was whether the charge under Section 420 read with Section 34, I.P.C. was liable to be quashed under Section 482 of the Code and it was held that that on the facts and circumstances of the case the charge could not be quashed. Their Lordships of the Supreme Court were not called upon to decide whether on the facts before them the charge under Section 420 read with Section 34, I.P.C. had been duly proved by the prosecution or not. As such, the learned First Addl. Sessions Judge was not correct in relying on the said decision of the Apex Court in finding the accused Banwarilal guilty of the offence of cheating. On applying the law on the subject to the facts of the present case, I hold that the conviction of accused Banwarilal under Section 420 read with Section 34, I.P.C. which has been upheld by the appellate court must be set aside.
9. As regards the conviction accused V. Tyagarajan under Section 408, I.P.C., prosecution was required to prove that he was a cleark or servant of the New Hawrah Transport Co., Calcutta; that he was entrusted with the property in question or he was having dominion over that property, and that he committed criminal breach of trust in respect of the said property. The expression 'Criminal breach of trust' has been defined under Section 405, I.P.C. and according to that section it was to be proved that accused V. Tyagarajan was entrusted with the property or he had dominion there over, that he misappropriated that property or converted the property to his own use or used or disposed of the property or wilfully suffered any person to so dispose of the property in violation of any direction of law prescribing the mode in which the entrusted property should be dealt with or any legal contract express or implied which he had entered into relating to the carrying out of the trust and that he did so dishonestly. In this case, admittedly accused V. Tyagarajan as an employee of the said Transport Co. and he was having dominion over the consignment which he delivered to accused Banwarilal. It has been further found by both the courts below that in spite of specific instructions to him from the Calcutta office (Vide Ext. 12 series) not to deliver the consignment without receiving the consignee copy, accused V. Tyagarajan delivered the consignment on 22-2-1984 to accused Banwarilal on the latter's promise to deposit the consignee copy on 25-2-1984 after retiring the same from the Allahabad Bank on making full payment. This finding of fact by both the courts below clearly indicates that the said accused delivered the consignment in violation of the express legal contract which he had entered into relating to the carrying out of the trust. When the consignment was delivered in violation of such express legal contract, it has to be presumed that the conduct of the accused was prima facie dishonest. It is of course true that the accused has taken the stand that in order to promote the business good-will of his master i.e. the Transport Co., he had to release the consignment on receiving promise in writing from the customer that he would deposit the consignee copy within a couple of days. This explanation of the accused would have been somewhat acceptable had he not received any instruction from his master not in deliver the consignment without receiving the consignee copy. But in this case it is seen from Ext. 12 series that on three occasions i.e. 10-2-1984, 14-2-1984 and 20-2-1984 he has received specific instructions from the Calcutta office not to deliver the consignment without receiving the consignee copy but despite receipt of such specific instruction and in spite of protest by the clerk-in-chief of the godown, when accused V. Tyagarajan delivered the consignment, there is no escape from the conclusion that his conduct in delivering the consignment to accused Banwarilal was with a dishonest intention. That being so, all the ingredients constituting the offence under Section 408 I.P.C. having been duly established, the conviction of the accused V. Tyagarajan under Section 408, I.P.C. which has been upheld by the appellate court is not liable to be interfered with.
10. In the result, Criminal Revision No. 249 of 1991 is allowed and the conviction under Section 420 read with Section 34, I.P.C. of accused Banwarilal Agarwal and the sentence passed thereunder are hereby set aside his he is acquitted. The bail bond filed by him stands cancelled and fine, if any, paid shall be refunded.
Criminal Revision No. 250 of 1991 is allowed in part. While setting aside the conviction of accused petitioner V. Tyagarajan under Section 420 read with Section 34, I.P.C. and the sentence passed against his thereunder, his conviction under Section 408, I.P.C and the sentence passed thereunder which have been upheld by the appellate court are hereby confirmed.