Mohan Singh vs State of Punjab

H.K. Sandhu, J.

The present revision petition has been filed by Mohan Singh and others against the order passed by Additional Sessions Judge, Ludhiana, on 10th January, 1992, whereby the revision petition against the order, dated 11th August, 1989, passed by Judicial Magistrate, First Class, Ludhiana was accepted and the case was remanded to the Chief Judicial Magistrate, Ludhiana, for further inquiry.

The brief facts giving rising to this revision petition are that a case was got registered by one Ashwani Kumar against one Narinder Saini and the present petitioners at Police Station, Focal Point, Ludhiana, on the allegation that he had approached Narinder Saini for the purchase of a Maruti car and Narinder Saini demanded Rs. 93,000/ as price of the car as against fixed price of Rs. 84,155/. He reported the matter to the Police and on 18th November, 1988, a raid was conducted when he passed a sum of Rs. 93,000/ to Narinder Saini as the price of the car which was actually booked for M/s O.K. Hosiery Mills, Ludhiana and an invoice was prepared in the name of that Mill but signatures of Ashwani Kumar were obtained on the same as a customer. The car was booked by Rajiv Nayyar, Director M/s O.K. Hosiery Mills, who had deposited Rs. 10,000/ for booking on 14th October, 1986. The allotment letter was also received by M/s O.K. Hosiery Mills. They were required to take delivery of the car either in the first week of August or in the last week of September. They appointed Ranjit Kumar as Special Attorney to take delivery of the car but the car was not delivered to him and it was delivered to Ashwani Kumar, by charging more money. Ashwani Kumar handed over money to Narinder Saini and he entrusted three wads for counting to Jagir Singh, Sales Manager and some money to Mohan Singh, Salesman. On the instructions of Narinder Saini, his clerk prepared the bill. In the meantime, on a signal Sub Inspector Sant Kumar and Inspector Harvel Singh Bajwa entered the premises and recovered 9 wads of currency notes and Rs. 3,000/ in loose form, from Narinder Saini and others. Ashwani Kumar handed over the bill regarding purchase of the car to the Police. Statement of Ashwani Kumar was recorded at about 7 P.M. on the same day on the basis of which case F.I.R. No. 151 dated 19th November, 1988 under Sections 406, 420, 465 and 120B, Indian Penal Code was registered. The case was investigated by different police officers who recorded the statements of various buyers and other persons who had booked the Maruti cars with M/s Saini Brothers, Ludhiana. After completion of the investigation, Narinder Saini, his wife Meenakshi Saini, his son Rajiv Saini and his employees Mohan Singh and Jagir Singh were challaned.

The learned trial Court after hearing A.P.P. for the State and counsel for the accused and perusing the record found that no case was made out against the present petitioners and only Narinder Saini was prima facie liable for an offence under Section 406, Indian Penal Code. The petitioners were thus discharged vide order, dated 10th August, 1989. A revision petition was filed against this order by the State which was allowed by the learned Additional Sessions Judge, Ludhiana, as per the impugned order.

I have heard the learned counsel for the parties and have perused the records.

It was urged on behalf of the petitioners that the case of the State as set up in the first information report was that Ashwani Kumar, had approached Narinder Saini for the purchase of a Maruti car which was in fact booked in the name of some other firm which had deposited Rs. 10,000/ at the time of booking. The price of Maruti Car was Rs. 84,155/but Narinder Saini agreed to sell the car to Ashwani Kumar by charging more money, i.e. Rs. 93,000/. There were no allegations against Meenakshi Saini and Rajiv Saini and even their names were not mentioned in the first information report. They were, therefore, not liable for the offence even if they were partners of Saini Motors, Ludhiana, alongwith Narinder Saini. It was urged that the only allegation against Mohan Singh and Jagir Singh, petitioners, was that some amount was handed over to them by Narinder Saini for counting. All these persons had not deceived Ashwani Kumar in any manner nor they had committed the offence of misappropriation or embezzlement of some amount. In fact, there was no statutory control on the price of cars by the Government; so no offence of misappropriation or breach of trust was made. The wife and the son of Narinder Saini were implicated without any iota of evidence. They were therefore, rightly discharged by the trial Court. This contention of the learned counsel is quite tenable. A perusal of the allegations made in the first information report shows that no averment at all was made against Meenakshi Saini and Rajiv Saini nor any role was attributed to them. They were not present when the amount was handed over to Narinder Saini. Simply because Narinder Saini accepted Rs. 93,000/ as against the price of Maruti car of Rs. 84,155/, will not make other partners of the firm vicariously liable for the commission of any crime. There are no averments that Meenakshi Saini and Rajiv Saini were active partners and took part in the business of the firm and they too had connived with Narinder Saini to sell the car at a greater price, When there are no specific allegations against the wife and son of Narinder Saini regarding the commission of any crime, it would be a traversity of justice to prosecute all partners.

So far as Mohan Singh and Jagir Singh, petitioners are concerned, they are employees of the firm. They were handed over some money by the employer which they were to count. The mere counting of the currency notes will not be enough to attribute any mens rea to the employees, nor it could be said that as they were counting money at the instance of their employer, they were prima facie guilty of offences of misappropriation or criminal breach of trust. They too were rightly discharged by the trial Court.

In view of my above discussion, I allow this revision petition and set aside the impugned order dated 10th January, 1992, passed by the learned Additional Sessions Judge, Ludhiana.