Nahoom Minz Vs. State of Bihar and President, East Indian Section of S.D.A. Mission - Court Judgment

Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - likewise, on the basis of the same evidence, the appellate court had further recorded its finding that since the case of the prosecution and the evidence on record suggests that it was the suppliers of the books who could at best be considered as being cheated by the petitioner, but since no complaint or grievance was made by any of the books' suppliers. referring to the impugned judgment of the appellate court, learned counsel submits that even the appellate court has recorded its findings that section 420 ipc is not made out in view of the fact that the allegations and the evidences at best suggest that it was the publishers who were cheated by the acts of the petitioner, but they having not made any grievance, the offence under section 420 ipc therefore fails. learned counsel adds further that after institution of the case, at a later stage, the complainant had entered into an out of court understanding with the petitioner and a petition for compromise along with a petition praying for allowing the complainant to withdraw the case in respect of the compoundable offences was filed both before the trial court as well as the appellate court, but neither of the courts had considered the compromise petition, nor assigned any reason for not allowing the case to be compounded, although the offence under section 418 ipc is compoundable with the permission of the court, as envisaged under section 320(2) cr. it appears that both the trial court as well as the appellate court has placed strong reliance on ext. the facts indicated in the prosecution's case and evidences may at best suggest that the petitioner had committed a breach of trust by mis-utilizing his post and position as the principal of the mission school, but in absence of any definite evidence that the petitioner had caused any wrongful loss to the mission or had made any wrongful gain for himself, mere breach of trust cannot attract criminal liability, although the mission under whom the petitioner was employed, may have a cause of action for initiating disciplinary proceeding against the petitioner.d.g.r. patnaik, j.1. by this revision application, petitioner has challenged the judgment and order dated 2.5.1998 (signed on 4.5.1998) passed by the 8th additional judicial commissioner, ranchi in cr. appeal no. 14 of 1994 whereby the judgment of conviction and order of sentence passed by the trial court for the offence under section 418 ipc against the petitioner was upheld and the appeal was dismissed with modification.the petitioner was put on trial for charges under sections 408, 418, 467, 420 and 120b ipc. the trial court by its judgment dated 5.2.1993, convicted the petitioner for the offences under sections 418, 408 and 420 ipc and awarded sentence for each of the offences. it is against this order of conviction, petitioner had filed an appeal vide cr. appeal no. 14 of 1994 which was disposed of by the impugned judgment dated 2.5.1998 by the 8th additional judicial commissioner, ranchi and against the judgment of the appellate court, the present revision application has been preferred by the petitioner.2. the case against the petitioner was registered on the basis of a complaint filed by the complainant, namely the opposite party no. 2, before the chief judicial magistrate, ranchi on 21.1.1984 and the learned court below after conducting inquiry under section 202 cr. pc, took cognizance against the petitioner for the aforementioned offences and for which the petitioner was put on trial.prosecution's case in brief is that the petitioner was posted as principal, daragain s.d.a. mission school in between august 1979 to 1983. the said school was established and run under the s.d.a. mission east indian section. it is alleged that while acting as principal of the school, the petitioner had placed orders with different book publishers including frank brothers, pitambar books, books corner and others, for the supply of books. the indent was placed in the name of baragain s.d.a. mission school without prior permission and sanction of the managing committee of the s.d.a. mission east india section. the books worth lakhs of rupees were thus procured by the petitioner for selling in the open market, although the management of the school namely s.d.a. mission, east india section being purely a religious body with specific aim and object to promote education amongst the children and to build their morale character, does not undertake any business of selling the books. the matter came to the knowledge of the complainant who was the president of the s.d.a. mission east india section, from a letter dated 28.9.1983 of the treasurer of the mission. it was learnt that the petitioner was indulging in doing personal business with m/s frank brothers and co. (book publisher) and other such book publishers and was placing indent for the supply of books by illegally and unauthorizedly using the letter head of the school. the publishers, who had supplied the books against the order placed by the petitioner, had raised bills for payment, which was addressed to the mission. the complainant thereafter issued a show-cause notice to the petitioner, who in his reply had purportedly acknowledged his entire responsibility for paying the bill amounts to the suppliers of the books with a request to give him two months time for the payment. meanwhile, one of the publishers / suppliers namely r.s. tiwary of m/s books corner, upper bazar, ranchi served a legal notice upon the complainant for the payment of a sum of rs. 2,80,230/- against the supply of books made by him and a similar notice was also issued by another supplier namely, ram pustak kendra, dhurwa, ranchi claiming payment of a sum of rs. 4,96,740/-. later, on instruction received by the complainant from the pastor, president of the northern union of the s.d.a. mission, new delhi, information was lodged at the sadar police station on 22.1.1984 and when no action was taken by the police, the complainant lodged his complaint before the learned court below. the thrust of the allegation, as per the complaint petition, is that the petitioner had committed forgery by illegally using the letter head of the school for the supply of books for his own wrongful gain and also committed criminal breach of trust besides cheating with knowledge and intention to cause wrongful loss to the s.d.a. mission whose interest petitioner was hound to protect.3. eight witnesses were examined at the trial including the complainant. besides oral evidences, certain documents were also adduced in evidence by the prosecution. these documents include the complaint petition (ext.3), bills raised by various books suppliers, legal notice and letter sent by the publishers namely frank brothers and also letter purported to contain an admission made by the petitioner acknowledging the fact that he had placed indent to the suppliers for the supply of books on the letter head of the school (ext.-12). the documents introduced in evidences also include the acknowledgment of payment of bills made by the petitioner (ext.-16).4. placing reliance upon the testimonies of the complainant read with the fact admitted by the petitioner that he was the principal of the school at the relevant point of time and that he had placed indent with various publishers / suppliers for the supply of books and that such indent was placed by the petitioner by using the letter head of the school and drawing an inference that the petitioner misrepresented before the publishers, making them to believe that the orders for the supply of books was made by him on behalf of the s.d.a. mission and that the price for the books supplied, would be paid by the s.d.a. mission, the learned trial court had recorded its findings that the petitioner had committed criminal breach of trust and was liable for the offence under sections 408 ipc and was also guilty for the offences under sections 418 and 420 ipc.5. the appellate court on considering the entire evidences on record, on its own, had set aside the conviction recorded by the trial court for the offence under section 408 ipc, holding that there being no case of entrustment of any properly with the petitioner, the essential ingredient of section 408 ipc was apparently lacking and, therefore, the conviction for the offence under section 408 ipc is not sustainable. likewise, on the basis of the same evidence, the appellate court had further recorded its finding that since the case of the prosecution and the evidence on record suggests that it was the suppliers of the books who could at best be considered as being cheated by the petitioner, but since no complaint or grievance was made by any of the books' suppliers. the offence under section 420 ipc is not made out and, therefore, conviction for the said offence is not sustainable. however, while placing reliance on a particular document (ext.-6) which bears signature of the petitioner and which is admittedly a letter issued by the petitioner on the letter head of the school in his capacity as the principal of the school, addressed to the publishers placing indent for the supply of the books, the appellate court had inferred that the petitioner not being authorized to utilize the letter heads of the school to place orders for supply of the books for his clandestine business of selling books in the market, had intended to cause wrongful loss to the s.d.a. mission, although being an employee of the mission, he was bound to protect the interest of the mission and, therefore, the petitioner is guilty for the offence under section 418 ipc. thus, while setting aside the conviction recorded by the trial court for the offences under section 408 and 420 ipc, the appellate court sustained the conviction and sentence of the petitioner for the offence under section 418 ipc.6. assailing the impugned judgment of conviction recorded by the appellate court, learned counsel for the petitioner has raised several grounds inter-alia that the learned appellate court has drawn a misconceived and erroneous inference against the petitioner for the offence under section 418 ipc, although none of the ingredients of the offence under section 418 ipc has been made out even on the basis of the entire evidence of the prosecution. learned counsel explains that one of essential ingredients of section 418 ipc is cheating. in the instant case, there is no such evidence that the complainant or the mission represented by the complainant was cheated or that any attempt was made by the petitioner to cheat the mission. referring to the impugned judgment of the appellate court, learned counsel submits that even the appellate court has recorded its findings that section 420 ipc is not made out in view of the fact that the allegations and the evidences at best suggest that it was the publishers who were cheated by the acts of the petitioner, but they having not made any grievance, the offence under section 420 ipc therefore fails. learned counsel adds that neither the trial court, nor the appellate court has drawn any such inference that the complainant or the mission represented by the complainant were cheated by the petitioner or that any attempt was made by the petitioner with intent to cheat them. learned counsel adds further that it is not the prosecution's case that either the complainant or the s.d.a. mission was made liable in any manner for payment of the bills to any of the publishers against the books supplied by them. rather, it is the admitted case of the complainant that it was the petitioner who had paid the bills and, therefore, in this view of the matter also, it cannot be said that the petitioner had caused any wrongful loss to the complainant or to the s.d.a. mission by any of his acts and deeds. learned counsel adds further that after institution of the case, at a later stage, the complainant had entered into an out of court understanding with the petitioner and a petition for compromise along with a petition praying for allowing the complainant to withdraw the case in respect of the compoundable offences was filed both before the trial court as well as the appellate court, but neither of the courts had considered the compromise petition, nor assigned any reason for not allowing the case to be compounded, although the offence under section 418 ipc is compoundable with the permission of the court, as envisaged under section 320(2) cr. pc. contending that the judgment of conviction, as recorded by the learned appellate court for the offence under section 418 ipc is totally perverse and illegal, learned counsel for the petitioner has prayed for setting aside the impugned judgment of conviction.7. from the impugned judgment of appellate court, it appears that the inference of guilt against the petitioner for the offence under section 418 ipc was drawn on the basis of the inference that the petitioner had unauthorizedly used the letter heads of the school and had obtained supply of books from the various publishers by representing before them that the order for the supply of books was being made on behalf of the s.d.a. mission and that he was acting in the capacity of intermediary and that the price of the books would be paid by the s.d.a. mission and further, that by obtaining the books in such unauthorized manner in the name of the mission, the petitioner was indulging in his private business of selling the books in the market. the appellate court has inferred that the petitioner in his capacity as the principal of the school, was bound to protect the interest of his employer namely the s.d.a. mission, but instead, he had cheated them by his aforementioned acts.8. i have gone through the evidence of each of the witnesses as also documents adduced in evidence by the prosecution and i find that some of the documents have not been proved in evidence by way of proper and legal procedure. it appears that both the trial court as well as the appellate court has placed strong reliance on ext.-12, which is a letter bearing signature of the petitioner and purported to be the letter of indent placing orders for supply of books addressed to the suppliers. from the contents of the letter (ext.-12). there does not appear any such representation that the order for the supply of books was being made on behalf of the s.d.a. mission and neither does it contain any such representation to the effect that the petitioner had made any inducement to the publishers to supply books to him. the evidence do not suggest that the petitioner had made any willful representation to defraud either the book publishers, nor is there any such suggestion in the entire evidences that the petitioner had made the s.d.a. mission responsible and liable for the payment of price of the books supplied. from the entire evidences on record, there appears no element of cheating at all. the facts indicated in the prosecution's case and evidences may at best suggest that the petitioner had committed a breach of trust by mis-utilizing his post and position as the principal of the mission school, but in absence of any definite evidence that the petitioner had caused any wrongful loss to the mission or had made any wrongful gain for himself, mere breach of trust cannot attract criminal liability, although the mission under whom the petitioner was employed, may have a cause of action for initiating disciplinary proceeding against the petitioner. the inference of guilt, as drawn by the appellate court against the petitioner for the offence under section 418 ipc, appears to be based on misconceived inferences.9. furthermore, it also appears that a compromise petition was filed under the joint signatures of the complainant and the petitioner both before the trial court and before the appellate court, but for the reasons undisclosed, neither of the courts had considered the compromise petition, nor allowed the parties to compound the offence, though the offence under section 418 ipc is compoundable under section 320(2) cr. pc.10. for the reasons assigned, i find merit in this application. accordingly, the same is allowed. the impugned judgment of conviction and order of sentence dated 2.5.1998 (signed on 4.5.1998), as recorded by the 8th additional judicial commissioner, ranchi in cr. appeal no. 14 of 1994, is hereby set aside and the petitioner is acquitted from the charges for the offence under section 418 ipc. petitioner, who is on bail, is absolved from the liability of his bail bond.