Shri Dina Nath vs Shri Hans Raj etc.

D.B. Lal, J.—This rule in revision has been obtained by Dina Nath against the order dated 26-2-1971 of the Additional Sessions Judge, Kangra, wherein he was affirmed the finding of the Judicial Magistrate, First Class, Hamirpur, discharging the accused Hans Raj from the offence under sections 406 and 408 of the I.P. Code. The facts giving rise to the petition may briefly be stated.

Hans Raj accused was employed by Dina Nath Petitioner as salesman in his cloth shop at Hamirpur. He was getting Rs. 125 per month as salary and worked for a period of 11/2 years. According to complainant Dina Nath, he got suspicion that Hans Raj was not keeping-proper accounts and that some money was short which might have been misappropriated by him. Accordingly on 25-11-1966 he directed Hans Raj that he would look up the accounts of the shop. On the next day, i.e. on 26-11-1966, the accused disappeared and left the keys of shop with his brother, one Bihari Lal. On 28-11-1966 Dina Nath checked up the accounts of the shop and found Rs. 4,917.16 short and since he considered that the said amount was misappropriated by Hans Raj, he went to the Police Station to lodge a report. According to complainant, the Police did not care to accept his report and no investigation was made. Thereafter Dina Nath made some complaint to the Judicial Magistrate and at his instance the Police report was instituted and investigation started. After investigation, a police challan was submitted to the Court and it was stated that Hans Raj had misappropriated the amount of Rs. 12,709.13. As the case had started upon a police report u/s 251A of the Code of Criminal procedure, the learned Magistrate considered the documents referred to in Section 173 and also ascertained other facts and circumstances. He found that no case was made out against the accused and accordingly he was discharged on the two counts, namely, sections 406 and 408 of the I.P. Code.

According to the learned Judicial Magistrate who has written an elaborate order, the dispute was of a civil nature and mens rea could not be deducted against the accused and as such no offence was formulated for which the challan was submitted to the Court. The result was that the accused was discharged. Against the order of discharge, the complainant Dina Nath came in revision before the learned Additional Sessions Judge, but could not succeed. The revision petition was dismissed on the very same grounds as were stated by the learned Judicial Magistrate.

Dina Nath has now come up in another revision before the High Court and the learned Counsel contends that there has been illegality and impropriety in the order of discharge. According to him, the entire purview of the case has been wrong, inasmuch as, u/s 251A of the Code, the accused could only be discharged if the Magistrate considered the charge against him to be groundless. On the other hand, the learned Magistrate gave a finding that no prima facie case was made out against the accused and that was the ground which he has taken for discharging him. The learned Counsel, of course, contended that all the necessary ingredients were prima facie made out against the accused for the two offences with which he was imputed against. The learned Counsel submits that at any rate, it could not be held that the charge was groundless and therefore this Court should interfere in revision and must send the case back for re-consideration.

It is manifest, the present revision petition has been pressed into service with reference to sections 436 and 439 of the Code of Criminal Procedure. The impropriety and illegality of the order made by the Magistrate or by the Sessions Judge has to be ascertained before the Petitioner can succeed in getting interference by this Court. The offences under sections 406 and 408 of the I.P. Code necessarily refer to criminal breach of trust which in turn incorporates dishonest intention on the part of the accused. The word "dishonestly" has been defined in Section 24 of the IP. Code and the accused has to be charged with the intention of wrongful gain to himself or wrongful loss to the complainant. Therefore, the ingredient of intention or mens rea was necessary ingredient to formulate the offence of criminal breach of trust. It was a question for inquiry both before the Magistrate and the learned Sessions Judge as to whether such a criminal intention could be inferred upon the facts and circumstances which were in existence before them with reference to the documents which were procured during the stage of investigation which included the first information report. According to the two courts below, this criminal intention could not be inferred from any circumstance whatsoever. That is the main ground on which the accused has been discharged.

In a criminal revision where lack of jurisdiction or wrongful exercise of jurisdiction is not pleaded, interference by Court is only made on certain well-defined principles. If there was some evidence before the Court below and on the basis of that evidence any reasonable person could have drawn an inference in favour of the accused, it would be difficult to say that the case did not lack insufficient evidence and the order of discharge was improper. It would not be a good argument that another Court left to itself would have taken a different view and would have perhaps refused to discharge the accused. If it is found in this case that some evidence existed on the basis of documents and upon evidence a reasonable inference could be drawn that criminal intention was not present so that the offence of criminal breach of trust was not made out, it would not afford a ground for interference in revision.

The two Courts below have found, on the basis of evidence that certain circumstances existed which, to my mind, were sufficient to hold that criminal intention could not be inferred against the accused. It is admitted case of the prosecution that the accused was a salesman at the shop and used to give cloth on credit. As observed by the learned Sessions Judge, some amounts remained to be realised and there were "bad debts". The learned Magistrate has also mentioned in his order that the accused has shown in the account-books these debts or these outstandings which were yet to be realised from the purchasers. In the first information report, it was mentioned that with the consent of the complainant, two arbitrators were appointed and they were of the opinion that the accused was responsible to pay back the outstandings which were due to credit supply of cloth to purchasers. In this manner, the parties had squared up the account and certain definite sum was found due which was only Rs. 3,000, much less than what was stated in the police challan submitted to the Court. It is evident that the amount was much inflated initially by the complainant. The local police, as admitted by the complainant, was reluctant to investigate the case. Perhaps they did not find sufficient grounds to make out the offence against the accused. As observed by the learned Sessions Judge, there was every indication that the case was of bad investments rather than of any crime committed by the salesman accused. All this material definitely indicated that the liability which existed between the parties was of a civil nature. The necessary ingredient of mens rea or criminal intention was absent. Upon this material, a reasonable view could be taken that the charge for criminal breach of trust was groundless.

The learned Counsel pointed out that the accused had left the shop immediately after the proposal was made for inspection of accounts. That was a cricumstance relevant against the accused. I do not think much could be made out, barely, by this circumstance. It is apparent the accused had shown the outstandings in the account itself. He must be afraid that he would be caught up immediately. In these circumstances, he might have gone away somewhere. Nonetheless he left the keys of the shop with his own brother and the complainant was not debarred from opening the shop and inspecting the accounts.

In the circumstances stated above, the controversy about the prima facie nature of the case or of the charge being held groundless loses much of its significance. Both the Courts below can safely be stated to have inferred that the charge was groundless and I do not consider that this Court would be justified to interfere by setting aside the finding of discharge. In the circums-stances, I do not find any rational ground to take a different view and dismiss the petition.