C. Jagannadhacharyulu, J.C.
1. These are two references made by the Sessions Judge, Tripura, under Section 438 Cr.P.C. to quash the charges framed by the S.D.M., Sadar, on 30.5.1963 against the petitioner-accused in CR. cases No. 16 of 1963 and 15 of 1963 on his file respectively under Sections 406 and 403 I.P.C. for the offences of criminal breach of trust and criminal misappropriation. As the learned Counsel for both the parties argued both the cases as clubbed and as the same questions of law arise for determination and as the petitioner is the same in both the cases, they are disposed of by this common judgment.
2. In Criminal reference 14 of 1965 the case of the prosecution is that the petitioner is a contractor, who was previously executing contracts in the Public Works Department, Tripura, that on 21.11.1960 he entered into a contract with the Executive Engineer, Agartala Division No. III for construction of a Primary School for 150 days in Dakshina Anandanagar, that in pursuance of the contract the petitioner was entrusted with 100 bags of cement, 15 bundles of G.C.I. sheets and 5 Cwt. M.S. Rod 5/8' diameter, on 17.1.1961, of the total value of Rs. 5.520.76 nP., but that he constructed only the plinth utilizing 30 bags of cement and that he committed either criminal breach of trust or criminal misappropriation of the remaining materials. So, the Executive Engineer, Agartala Division No. III filed a written complaint on 7.1.1963 against the petitioner in the Court of the Sub-divisional Magistrate, Agartala, Sadar, for the prosecution of the petitioner under Section 406 or Section 403 I.P.C.
3. In Criminal reference 15 of 1965 the same petitioner was said to have been entrusted with 3 bundles of G.C.I. sheets on 24.3.1961, 10000 first class bricks on 25.8.1961 and 50 bags of cement on 30.8.1961 of the total value of Rs. 3,987.70 nP. in respect of another contract dated 24.1.1961 entered into by the petitioner with the, Executive Engineer, Agartala Division No. III for the construction of a Primary School in Indranagar, but that the petitioner started only preliminary work such as foundation trench cutting in the site and that he either committed criminal breach of trust under Section 406 I.P.C. or that he dishonestly misappropriated or converted to his own use the property under Section 403 I.P.C. So, the I Executive Engineer, Agartala Division No. III filed a written report against him on 7.1.1963 for prosecution.
4. The learned S.D.M., Sadar, examined witnesses separately and framed alternative charges in each case. He clubbed the Charges for criminal breach of trust under Section 406 I.P.C. and for dishonest misappropriation or conversion to the use of the petitioner of the properties in question under Section 403 I.P.C. by making them alternative in the same composite charge in each case. But, the time included between the first and last of the dates in the charges did not exceed one year. For the sake of clarity, the charges framed in C.R. 16 of 1963 (which are similar to the charges framed in C.R. 15 of 1963) are reproduced below:
I, Shri S.R. Chakraborty, Magistrate 1st class, Agartala hereby charge you as follows.
That you sometime, during the period from March, 1061 to 21st of February, 1962 at Dakshina Ananadanagar under P.S. Agartala, being entrusted with certain property, to wit. 70 bags of cement, 15 bundles of G.C.I. sheets, and 5 CWT of M/S Rod measuring 5/8' on 17.1.61 at Agartala, total value of these materials being Rs. 5,520.76 nP. committed criminal breach of trust; and that you thereby committed an offence punishable under Section 406 of the Indian Penal Code and within my cognizance.
And I hereby direct that you be tried by me on the said charge.
That you some time during the period from March, 1961 to 21st February, 1962 at Dakshina Anandanagar under P.S. Agartala dishonestly misappropriated or converted to your own use certain property, to wit 70 bags of cement, 15 bundles of G.C.I. sheets and 5 Cwt. of M.S. Rod measuring 5/8' total value of the materials being Rs. 5,520.76 nP. belonging to Executive Engineer, Agartala Division III on behalf of Union of India and thereby committed an offence punishable under Section 403 I.P.C. and within my cognizance.
And I hereby direct that you be tried by me on the said charge.
5. The petitioner filed Criminal Motion No. 114 of 1963 and the Criminal Motion No. 115 of 1963 in the Sessions Court in Agartala under Sections 435 and 438 Cr.P.C. challenging the orders of the S.D.M. framing the charges against him. The learned Sessions Judge was of the opinion that the property in the materials supplied to the petitioner by the Executive Engineer, P.W.D., Division No. III under the provisions of the Central Public Works Account Code, Government of India (herein after called as the C.P.W.A. Code) passed to the petitioner, that the petitioner is not liable to be prosecuted for any criminal offence and that at best the respondent should have proceeded against him for breach of the contracts in question. He, therefore, made references to this Court under Section 438 Cr.P.C. to quash the charges.
6. The first contention of the learned Counsel for the petitioner is that the joinder of the charge? for criminal breach of trust and for dishonest misappropriatipn or conversion under Sections 406 and 403 I.P.C. even though made alternatively, is illegal and that it offends against the specific provisions of Sub-section (2) of Section 222 Cr.P.C. Though this contention was not noticed by the learned Sessions Judge, there is much force in it. Sub-section (2) of Section 222 Cr.P.C. is as follows:
When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 234:
Provided that the time included between the first and last of such dates shall not exceed one year.
Sub-section (2) itself is very clear and shows that a joinder of charges for criminal breach of trust or dishonest misappropriation can be made only when they relate to money and not materials. The word used is 'money'. Sub-section (2) of Section 222 does not permit joinder of charges regarding properties even if they have any money value. Even if authorities for this position are required, they can be found at page 452 of Law of Criminal Procedure, Second Edition by S.C. Sarkar. Vide also Jaswantrai Manilal Akhaney v. State of Bombay : 1956CriLJ1116 Their Lordships held that the trial Court was in error in relying upon the provisions of Sub-section (2) of Section 222, which relate to the offence of Criminal Breach of Trust or dishonest misappropriation of money which was not the case therein and which related to entrustment of property namely, Government promissory loan notes and Government promissory notes. So, the learned S.D.M. committed a serious error in framing alternatively charges for criminal breach of trust and criminal misappropriation of the properties in question under Sections 406 and 403 I.P.C. respectively in one composite charge.
7. The second contention of the learned Counsel for the petitioner is that the property in the materials in question, in both the cases, passed to the petitioner-contractor, that he could not commit any criminal breach of trust or criminal misappropriation with regard to his own property, that at best the respondent could have only a civil remedy for breach of contract and that, therefore the charges are liable to be quashed. Article 150 of the Constitution of India ordains that the accounts of the Union and of the States shall be kept in such form as the Comptroller and Auditor-General of India may, with the approval of the President, prescribe. Accordingly, the Government of India framed certain rules and compiled them in the C.P.W.A. Code on the directions given by the Comptroller and Auditor-General of India with the approval of the President as embodied in the Account Code, Volume III. The rules are wholly applicable in the administrations under the direct control of the Union Government. Vide Rules 1 and 2, Chapter I of the C.P.W.A. Code, regarding the scone of application of the rules. It is common ground that the rules do apply to the contracts in question in both the cases. As the contracts-were entered into in 1960, the rules of the C.P.W.A. Code, then in force, would apply. Under Rule 237 issues of materials to-works, whether from stock or by purchase, transfer or manufacture, are divided into two classes, namely, firstly, issues to contractors with whom agreements in respect of completed items of works for both labour and materials have been entered into and1 secondly, issues direct to works of materials when the works are done departmentally or by contractors whose agreements are for labour only. In the present two cases the issues to the petitioner were made for both labour and materials. Sub-rule (a) of Rule 238 lays down when the issue of materials-is generally permissible to contractors, who have contracted for completed items of works. Sub-rule (b) shows that the contractor should be held responsible for obtaining from the Government all the materials required for the work and for making the payment therefor, by deduction from his bills, at the rates specified, regardless of fluctuation in the market rates or in the stock rates of the division. Under Rule 239 no other materials should be supplied to the contractors except in the cases mentioned' therein. The object of that rule is to prohibit the supply of materials to contractors with the intention of giving them financial aid, the grant of which is governed by the other rules. Rules 240 to 244 relate to the procedure about accounts. Under Rule 240 all materials required for issue to a contractor should be made over to him, as soon as they are received, whether from stock or by purchase etc. and an unstamped, but dated acknowledgement, detailing full particulars of the materials including the rates and values chargeable to him, should at once be taken from the contractor. Under Rule 241 full details of the articles received should at once be entered in a measurement book, when the materials are obtained by purchase. Under Rule 242 the cost recoverable from a contractor under Rule 238 or Rule 239, as the case may be, should be debited at once to his personal account by charge to the suspense head 'Contractors-Other Transactions' in the accounts of the work concerned. Rule 243 states that the recovery from a contractor on account of the cost of materials issued to him for use in a work should ordinarily be made by deduction from the first bill authorising an advance payment or an on account payment to him for the work etc. Rule 244 lays down that the issue of materials to contractors should be limited to the reasonable needs of the work. The object of the above rules is to ensure that only the minimum required issue of materials is made and that the full amount recoverable from the contractor is debited to his account as soon as the materials are delivered, so that he may not receive payment at full rates for the completed items of work, prior to the value of the Government materials used by him therein being charged to his account or his final bill for the work done may not be settled before the full value of the materials recoverable from him has been debited to his account. Then, follows Rule 245 which is an important one. It lays down that the materials issued to contractors are the property of the contractors and that the surplus materials may be taken over by the Government, if required, for use on other works in progress, only by special arrangements and at the prevailing market rates.
8. Thus, it is abundantly clear from Rule 238, procedure for maintaining the accounts and Rule 245 of the C.P.W.A. Code that the contractors are charged for the materials supplied to them by way of deduction from the bills and that the property in the materials passes to the contractors immediately after their delivery to them. As such, the petitioner was the owner of the materials supplied to him and he could not be said to have committed either criminal breach of trust or criminal misappropriation of his own property.
9. The contention of the learned Government Advocate is that the note under Rule 245 prohibits the contractors from removing from the site of works, without the written permission of, the Divisional Officer, materials which were issued to them for use on a work, that there is a similar stipulation in Clause (x) of the agreements in both the cases executed by the petitioner in favour of the Executive Engineer, but that contrary to the above note and the agreements the petitioner removed the materials from the site of works and that, therefore, he is liable to be prosecuted for the offences in question. The learned Counsel for the petitioner contended that both the above note and Clause (x) in the agreements are illegal being contrary to the provisions of Rule 245, under which the property in the material passed to the petitioner-contractor, that they are hit by Section 23 of the Indian Contract Act and that, therefore, they are void and inoperative. His contention that the note as well as the provisions in Clause (x) of the agreements are contrary to the rules and especially Rule 245 of the C.P.W.A. Code, which itself lays down that the materials are the property of the contractors, is correct. Though Section 23 of the Indian Contract Act may not directly apply to the contracts in question and though the Criminal Court may not go deep into the question of validity of the contracts, however, as the note and the provisions at Clause (x) in the agreements are in conflict with the provisions of Rule 245 of the C.P.W.A. Code, the prosecution cannot be said to have made out a prima facie case against the petitioner. In view of the specific provisions of the Rule 245 of the C.P.W.A. Code which show that the property in the materials passed to the petitioner, he cannot be prosecuted. At best the respondent has only a civil remedy to sue the petitioner for breach of contracts and cannot prosecute him.
10. There is a decision of this Court in Ajoy Kumar Roy v. G.M. Wadwani AIR 1965 Tripura 36 wherein also the same questions, as herein, arose for determination. this Court held that the materials issued to the accused as contractor could not be said to have been entrusted to him and that there could be no question of any criminal misappropriation of the material, since, under the provisions of the C.P.W.A. Code, the property in the material issued was in the accused. The Government carried the matter to the Supreme Court. But the Supreme Court did not grant special leave and did not admit the case.
11. The learned Counsel for the petitioner pointed out that the S.D.M., Sadar, immediately issued a non-bailable warrant on 7.1.1963 as soon as the reports were filed, that on 9.1.1963 he issued proclamation for the attachment and sale of the properties of the petitioner, that on 19.1.1963 the petitioner surrendered himself before the S.D.M. and that the S.D.M. was not justified in issuing either a non-bailable warrant or proclamation. But, the reports show that the prosecution alleged that the petitioner, who is a muslim, was about be abscond to East Pakistan and that urgent steps should be taken to compel his attendance in the Court. So, the S.D.M. cannot be said to have acted with any indecent haste.
12. The learned Sessions Judge is correct in his opinion that no prosecution lies against the petitioner and that the charges framed against him are illegal.
13. The references are accepted and the charges against the petitioner are quashed in both the cases.