Rajvi Roop Singh, J.C.
1. This is a Criminal reference made by the learned Sessions Judge, Tripura, in Criminal Motion No. 6 of 1964 with a recommendation for quashing the charge as framed under Section 406 I. P. C. in C. R, Case No. 379 of 1963, by the Magistrate First Class, Sadar.
2. The facts leading up to this reference are as follows:
On 18-7-63 P. W. 1 G. W. Wadhwani, Executive Engineer, Agartala Division No. 1 filed a complaint in the Court of the Sub-Divisional Magistrate, Sadar, Agartala, Tripura against the accused petitioner Ajoy Kumar Roy, a Contractor, working under different Divisions of the local P. W. D. to the following effect:
A tender having been Invited for executing a work namely construction of 2 Nos. sheds and platforms attached to the prefabricated food storage godown at Arundhutinagar, Agartala the accused submitted a tender and the same was accepted by the competent authority concerned on 2-8-61. After the acceptance of the tender a work order was Issued in favour of the accused petitioner on 30-8-61. As per terms of the contract, in order to facilitate the same the accused was entrusted with the Government (P. W. D.) materials of the value of Rs. 6,662/13nP. on different dates as detailed below:
8-9-61 - Cement 150 bags;
11-9-61 - G.C.I. sheets 22 bundles.
11-9-61 - P. J. Brinks 20,000 Nos.
11-9-61 - 950 Cft. of bats.
The accused who was entrusted with the said materials had full dominion over the said properties. The accused began the work and only excavated the trench in foundation. The work remained stopped for sometime for certain technical things, after which the accused was duly informed to proceed with the work; but he did not. Several requesting letters were sent and verbal requests were made to the accused for executing the work. But he paid no heed to it nor did he return the materials with which he was entrusted.
In the petition of complaint the allegation was made that the accused being entrusted with the properties as stated and having dominion over those properties dishonestly misappropriated the same in violation of the directions prescribing the mode in which such trust was to be discharged and thus he had committed an offence punishable under Section 406 I. P. C.
A prayer was also made in the petition of complaint for issue of a search warrant for recovery of the materials mentioned therein.
On the basis of the above petition of complaint the accused was duly summoned and was released on bail after his appearance by the Sub-Divisional Magistrate, Shri S. R. Chakraborty. Thereafter the case having been transferred to Shri B. M. Choudhury, Magistrate 1st Class, 4 witnesses including the complainant P. W. 1 G. W. Wadhwani were examined on behalf of the prosecution before him. The case was then withdrawn and transferred to the file of Shri N. C. Sinha, Magistrate 1st Class under the orders of the District Magistrate dated 14-11-68. On 7-12-63 Shri N. C. Sinha, Magistrate 1st Class framed a charge under Section 406 I. P. C. against the accused petitioner who pleaded not guilty. The charge framed is as follows:
I, Shri Navadwip Sinha, Magistrate 1st Class, Sadar, hereby charge you Shri Ajoy Kumar Roy S/o Sri Rash Behari Roy resident of College Road, Shibnagar, Agartala as follows:
That on 30-8-61 a work order for construction of 2 Nos. sheds and platforms to the prefabricated food storage Godown at Arundhutinagar was issued in favour of you by the Executive Engineer, Agartala Division I, after acceptance of the tender submitted by you, and for construction of the sheds and platforms you were given (1) Cement - 150 bags on 8-9-61 (2) G. C. t. Sheets - 22 bundles, (3) P. J. bricks - 20,000 (4) 950 Cft. of bats on 11-9-01, the value of all the goods given to you being Rs. 6,662.13 nP., and thus being entrusted with the materials for the construction of the works mentioned above you did neither do the work nor return the materials and thereby committed breach of trust; and that you thereby committed an offence punishable under Section 406 of the Indian Penal Code, and with my cognizance.
And I hereby direct that you be tried on the said charge.
3. Being aggrieved by it, the petitioner filed a revision petition to the Court of Sessions Judge, Tripura, for quashing the charge. The learned Sessions Judge has made this reference that upon the evidence on record, framing of charge under Section 406 is unwarranted in law and as such the charge and the proceedings against the petitioner should be quashed.
4. The learned Government Advocate while opposing the reference vehemently averred that by the testimony of prosecution witnesses it was overwhelmingly proved that the materials and other articles mentioned in the complaint were Issued to the petitioner to facilitate the work and he, while having dominion over the same, dishonestly mis-appropriated and thereby committed an offence punishable under Section 406 I. P. C. In view of these facts the Magistrate was satisfied and he framed the charge. In the present circumstances, the learned Sessions Judge was not justified to make the recommendations for quashing the charge.
5. The counsel for the petitioner in order to controvert the argument of the learned Government Advocate contended that the material was supplied to the petitioner in accordance with the provisions of Central Public Works Account Code. . He further averred that in this case the cost of the material supplied to the petitioner was to be deducted from his bills therefore it should be presumed that the material was supplied as a loan and not as an entrustment and therefore no offence Under Section 400 or 403 I. P. C. was committed and the learned Sessions Judge was justified in making this reference.
6. Now the sole point for determination Is whether there is prima facie case against the petitioner to frame a charge under Section 408 I. P. C. or 403 I. P. C.
7. In this case this is an admitted fact that the material was issued to the petitioner in accordance with the provisions of Central Public Works Account Code. It is also an admitted fact that the P. W. D. keeps Contractors' ledger and the rule No. 240 of the C. P. W. A. Code in the rule under which the materials are supplied. Rule 1 of the Central Public Works Account Code (hereinafter mentioned as C. P. W. A. Code) shows that the rules contained therein are supplementary to the financial rules contained in the Central P. W. A. Code, the General Financial Rules and the Treasury Rules of the Union Government, Now there are several Rules in respect of Issue of Materials in the C. P. W. A. Code. 'Issues of materials' are classified in the Central Public Works Account Code under two sub-heads in Rule 237 which reads as follows:
Issues of materials to work, whether from stock or by purchase, transfer or manufacture, are divided into two classes:
(1) Issues to Contractors - Issues of materials to contractors with whom agreements in respect of completed items of works, i. e. for both labour and materials, have been entered into. (2) Issues direct to Work-Issues of materials when work is done departmentally or by contractors whose agreements are for labour only.
There are separate sets of rules to regulate 'Issues to Contractors' and 'Issues Direct to Work'. Under the main heading III - 'To Contractors' the Rules 238 and 239 relate to 'General Conditions'; Rules 240 to 244 relate to 'Accounts Procedure' and Rule 245 relates to 'Return of Surplus materials'. Therefore, if the evidence of P. W. 1 be accepted the issue of materials to the accused in this case must have been made under Clause (1) of Rule 237 on the basis of agreement in respect of completed items of work I. e. for both labour and materials. Now under Rule 240 the provision is that after the materials required for issue to a contractor have been made over to him, an unstamped but dated acknowledgment detailing full particulars of the materials including the rates and values chargeable to him should at once be taken from him and the Issue of materials should simultaneously be entered in the issue account of Form No. C. P. W. A. - 35. Rule 242 lays down that on the authority of the Contractor's acknowledgment the cost chargeable to him under paragraphs 238 and 239, as the case may be, should be debited at once to his personal account.
Rule 238 provides that the Contractor should be held responsible for obtaining from Government on such materials required for the work and for making payment therefor, by deduction from his bills at the rates specified, regardless of fluctuations in the market rates or in the stock rates of the division. These provisions for charging the contractor for the value of materials sup-plied as also for deduction to be made from his bills clearly imply that the materials issued to a contractor were not Issued by way of entrustment but were issued in a manner consistent with the passing of the property in the materials to the contractor. That in the case of issue of materials to a contractor the property in the materials passes to the contractor will further appear from Rule 245, where it has been specifically mentioned that surplus materials Issued to the contractors and charged to their accounts under Rule 240 are the properties of the contractors and the Government does not undertake to take over from contractors whether before or after the completion or determination of contract such surplus materials.
In these circumstances, it cannot be held that there is any prima facie case that the materials issued to the accused petitioner as contractor were issued by way of entrustment. There can also be no question of any criminal misappropriation of the materials by the accused petitioner as contractor when under the provisions of the Central Public Works Accounts Code the property in the materials issued was in the accused petitioner. It may be that the allegations made against the accused petitioner may furnish cause of action for a civil suit against him; but certainly the evidence that has been led does not warrant framing of charge either under Section 406 I.P.C. or under Section 403 I.P.C. against him.
8. I, therefore, accept the reference and quash the proceedings and the charge framed under Section 406 I. P. C. by the learned Magistrate.