Telangana High Court

T. Narsimhulu, vs The State Of Telangana, on 5 June, 2024

     THE HONOURABLE SMT. JUSTICE K. SUJANA

         CRIMINAL PETITION No.1234 OF 2024

ORDER:

This Criminal Petition is filed under Section 482 of the

Code of Criminal Procedure, 1973, (for short 'the Cr.P.C.') to

quash the proceedings against the petitioner/accused, in

Crime No.52 of 2023 of Shanthi Nagar Police Station,

Jogulamba Gadwal District, registered for the offences

punishable under Sections 420 and 409 of the Indian Penal

Code, 1860 (for short 'the I.P.C').

2. Brief facts of the case are that respondent No.2/de facto

complainant, who is the District Manager of the Telangana

State Civil Supplies Corporation Limited, Jogulamba Gadwal

District, lodged complaint before the Shanthi Nagar Police,

Jogulamba Gadwal District against the petitioner, who is the

Proprietor of Surya Traders (Rice Mill), Doudarpally village,

Jogulamba Gadwal District, stating that the petitioner has

entered into written agreement with Telangana Civil Supplies

Corporation wherein it is stated that the Corporation supplies

its own stocks of paddy to the petitioner and he shall supply

the rice back to the Corporation for the purpose of Public

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Distribution System. It is stated that the petitioner entered

into an agreement with the Civil Supplies Corporation in the

year 2021-22 (Rabi season) for supply of rice to the

Corporation. Later, the Custom Milling Paddy has been

issued to the petitioner i.e., Surya Traders (Rice Mill),

Doudarpally village, Jogulamba Gadwal District. Respondent

No.2 has conducted inspection of the mill on 21.05.2023 and

after completion of inspection, they noticed that

approximately 1076.086 MTs of paddy worth about

Rs.3,50,49,948/- for the 2021-22 (Rabi season) were

misappropriated. Since the petitioner was not delivered the

said paddy to the Corporation, the Police registered a case in

Crime No.52 of 2023 for the offences punishable under

Sections 420 and 409 of the IPC. Hence, the present Criminal

Petition.

3. Heard Sri K. Rathanga Pani Reddy, learned counsel for

the petitioner as well as Sri Palle Nageshwar Rao, learned

Public Prosecutor for respondents.

4. Learned counsel for the petitioner submitted that as per

the agreement as well as the G.O.Ms.No.15, dated 19.06.2023

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even after expiry of the due date, the Government has issued

instructions to receive the CMR rice or paddy with certain

penalties. However, respondent No.2 conducted physical

inspection on 21.05.2023 i.e., before the extension time to

deliver the paddy up to 31.05.2023, as such, there are no

ingredients to constitute the offences under Sections 420 and

409 of IPC.

5. Learned counsel for the petitioner further submitted

that Section 409 is not applicable in the case of petitioner as

there is no entrustment of liability and there exists only a

contractual liability on his part as there is a contract between

the Civil Supplies Department and the firm i.e., Surya Traders

(Rice Mill), under which the Department has to provide paddy

to the rice mill and they in turn, would supply the rice.

Thereby, there is no way that Section 409 attracts in the case

of petitioner.

6. In support of his submission, learned counsel for the

petitioner relied on the Judgment of the Hon'ble Supreme

Court in N. Raghavender vs. State of Andhra Pradesh,

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CBI 1 , wherein, no opinion was expressed with regard to

Sections 409 and 420 of IPC though it was argued that

Sections 409 and 420 of IPC cannot go together. The

paragraph No.78 of the said judgment reads as under:

"78. We may at this stage, briefly note that the learned Senior Counsel for the appellant had raised another contention, namely, that the charges under Section 409 and section 420 of IPC cannot go together. He eloquently argued that the essential ingredients of the two offences are conflicting in nature. Section 409 (or 405) IPC deals with offfences where the accused has been "entrusted" with the property and Section 420 IPC deals with offences where the accused has "dishonestly induced" the vicitm/complainant to depart with the property in question. It was, therefore, argued that an accused cannot be charged under both the sections simultaneously. This contention, however, has been rendered academic in the light of the aforesaid discussion and conclusion(s). We thus do not express any opinion and leave this question open for adjudication in an appropriate case."

7. Further, learned counsel relied on the judgment of the

Hon'ble Supreme Court in Lalit Chaturvedi and others vs.

State of Uttar Pradesh 2, wherein, in paragraph No.10 it was

held that "the chargesheet also refers to Section 406 of the IPC,

but without pointing out how the ingredients of said section are

satisfied. No details and particulars are mentioned. There are

decisions which hold that the same act or transaction cannot

result in an offence of cheating and criminal breach of trust

(2021) 18 SCC 70

2022 SCC Online SC 579

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simultaneously. For the offence of cheating, dishonest intention

must exist at the inception of the transaction, whereas, in case

of criminal breach of trust there must exist a relationship

between the parties whereby one party entrusts another with

the property as per law, albeit dishonest intention comes later.

In this case entrustment is missing, in fact it is not even

alleged. It is a case of sale of goods. The chargesheet does

refer to Section 506 of the IPC relying upon the averments in

the complaint. However, no details and particulars are given,

when and on which date and place the threats were given.

Without the said details and particulars, it is apparent to us,

that these allegations of threats etc. have been made only with

an intent to activate police machinery for recovery of money"

whereas, in the present case, the Government entrusted the

paddy to the petitioner and they failed to supply the same.

Learned counsel further submitted that Civil Supplies

Corporation has inspected the rice mill and filed false

complaint, as such, prayed to quash the proceedings against

the petitioner

8. On the other hand, learned Public Prosecutor

vehemently opposed the petition and the submissions made

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by learned counsel for the petitioner and submitting that

crores of amount was involved and the Qty of 1076.086 MTs

worth about Rs.3,50,49,948/- was missing from the mill

premises of the petitioner. As per the agreement conditions,

cost of the paddy has to be recovered @ 125% besides 12%

interest per annum. He further contended that miller has

cheated the Government and sold away the Government

paddy with a mala fide intention to cause loss to the public

exchequer. Therefore, prayed to dismiss the petition.

9. In support of his submission, learned Public Prosecutor

relied on the judgment of the Hon'ble Supreme Court in

Sadhupati Nageswara Rao vs. State of Andhra Pradesh 3

wherein in paragraph No.21 it is held as follows:

"Section 409 enables the Court to award imprisonment for life or imprisonment up to ten years alongwith fine. Considering the fact that the appellant was awarded imprisonment for 6 months alongwith a fine of Rs. 1,000/- only, we feel that the same is not excessive. On the other hand, we are of the view that persons dealing with the property of the Government and entrusted with the task of distribution under FFWS, it is but proper on their part to maintain true accounts, handover coupons to the Mandal Revenue Office and to execute the same fully and without any lapse. Such recourse has not been followed by the appellant. The courts cannot take lenient view in awarding sentence on the ground of sympathy or delay, particularly, if it relates to distribution of essential commodities under any Scheme of the Government intended to benefit the public at

2012 8 SCC 547

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large. Accordingly, while rejecting the request of the learned Senior Counsel for the appellant, we hold that there is no ground for reduction of sentence."

10. Having gone through the submissions made by both the

learned counsel and having gone through the material

available on record, it is to be noted that the complaint was

filed by the District Manager of TSCSCL, Jogulamba Gadwal

District, stating that the Commissioner of Civil Supplies

issued guidelines vide G.O.Ms.No.15, for receiving the CMR

rice or paddy with certain penalties even after the expiry of

due date during Rabi 2021-22. During that season the

petitioner has entered into an agreement with the Civil

Supplies Corporation, Jogulamba Gadwal District.

Accordingly, the Custom Milling Paddy has been issued to

Surya Traders (Rice Mill), Doudarpally village, Jogulamba

Gadwal District. Later respondent No.2 has conducted

inspection of rice mill on 21.05.2023 and found that

1076.086 MTs of paddy was misappropriated worth of

Rs.3,50,49,948/-.

11. The contention of learned counsel for the petitioner is

that Section 409 of the IPC is not applicable to the present

case as the petitioner is neither merchant nor the agent. On

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the other hand, learned Public Prosecutor argued that Section

409 of the IPC is very much applicable to the case as the

petitioner not complied with the conditions and instead of

supplying the rice, he misappropriated the same. Having

regard to the judgments rendered by the Apex Court in the

case of N.Raghavender (Supra 2) and Sadhupati

Nageswara (Supra 3) which are similar to the facts of the

present case, it cannot be said that Section 409 of IPC is not

applicable to the present case. Therefore, there is no force in

this contention as well.

12. Having regard to the rival submissions made by both

the learned counsel and having gone through the material

available on record, to quash the proceedings under Section

482 of Cr.P.C, the Court has to see whether the averments in

the complaint prima facie shows that it constitute the offence

as alleged by the Police.

13. At this stage, it is pertinent to note the Judgment of

the Hon'ble Supreme Court in State of Madhya Pradesh

vs. Surendra Kori1 , wherein in paragraph No.14 it is held

as follows:

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"The High Court in exercise of its powers under Section 482 Cr.P.C. does not function as a Court of appeal or revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 Cr.P.C., though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 Cr.P.C., should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material."

14. Considering the facts and circumstances of the case, it

is pertinent to note that the averments in the complaint show

that, there is misappropriation of funds/public in the present

case and basing on the complaint lodged by respondent No.2,

respondent No.1 has rightly registered a case in Crime No.52

of 2023 against the petitioner. Since the case is at the stage of

investigation, at this juncture it cannot be said that the

offences under Sections 420 and 409 of IPC do not constitute.

15. In view of the above discussion as well as the law laid

down by the Hon'ble Supreme Court in Surendra Kori

(Supra), this Court does not find any merit in the criminal

petition to quash the proceedings against the petitioners and