U.L. Bhat, J.
1. The 3rd accused in C.C. No. 63 of 1980 on the file of the Judicial I Class Magistrate, Cochin, has filed this petition under Section 482 of the Cr. P.C. (for short the Code) to quash the proceedings.
2. The respondent herein filed a private complaint which was taken on file as C.C. No. 63 of 1980 by the Judicial First Class Magistrate, Cochin. Four persons were shown as accused in the complaint. The 1st accused is the proprietor of Western Carriers, which is described as a common carrier in this petition. The Head Office is at Calcutta. The 2nd accused is the Manager of the Calcutta Office of the Carrier. The 3rd accused is the Manager of the Cochin Office of the Carrier and the 4th accused is the New Delhi Manager of the Carrier. The allegations in the complaint can be summarised as follows : The complainant entrusted certain goods shown in the schedule (13 consignments, two of which were entrusted on 13-9-1977 and the rest on 10-1-1978) at Cochin to the 3rd accused for carriage and safe delivery against presentation of consignee copies of Lorry Receipts at New Delhi by the consignees. The Carriers are bound in law to deliver the cargo on surrender of the consignee copies of lorry receipts. The consignee copies were sent through Central Bank of India and negotiated through M/s. Gandhi Sons, Cochin. But the lorry receipts were not honoured by the consignees with reference to the 13 items in the schedule. There were three different consignees. The complainant through his representatives demanded delivery of the cargo by presenting all the lorry receipts to the 4th accused. But delivery was not made. The complainant again asked for delivery from the 4th accused through the Notary Public of Delhi without any success. The accused jointly and dishonestly misappropriated or converted to their own use the goods in the 13 consignments of the total value of Rs. 1,07,400/- and Lhereby committed criminal breach of trust. They have fraudulently disposed of the goods in violation of law and thereby made unlawful profit for themselves and caused illegal loss to the complainant. In order to cover their own fraud and criminal breach of trust, they have raised false, illegal and untenable contentions in writing while verbally promising to settle the matter by making good the losses to the complainant. The consignments were insured with the Oriental Fire & General Insurance Co. Ltd. The accused as well as the insurer were promising to settle the matter by reimbursing the losses incurred by the complainant. But they have failed to do so. Hence the complaint was filed alleging offences punishable under Sections 407 and 193, I.P.C. read with Section 34 I.P.C.
3. A careful reading of the complaint, is sufficient to show that the complaint alleges all the ingredients of an offence under Section 407 read with Section 34 I.P.C. Specifically, I may refer to paragraph 5 of the complaint which deals with the mens rea of the offence. Therefore, it cannot be said that the averments in the complaint do not disclose an offence under Section 407 I.P.C. I may also say that the same Is not the position with reference to the offence under Section 193 I.P.C.
4. The learned Counsel for the petitioner contended that notwithstanding the fact that the averments in the complaint make out an offence under Section 407 I.P.C. the complaint cannot lie inasmuch as the act alleged is an act in breach of contract or an act in breach of a statutory duty under Section 8 of the Carriers Act, Act III of 1865.
5. A careful reading of Section 405 I.P.C. will show that it takes in within its fold acts amounting to breach of contract or violation of law. Such an act may be an offence if it is done with the requisite mens rea. Such an act will not be an offence if the requisite mens rea is absent. The duty of the carrier as per the contract between the parties was to deliver the goods to the consignee on presentation of the consignee copy of the lorry receipt, or in the alternative, return the goods to the consignor. It is alleged in the complaint that the accused have done neither of these acts. Section 8 of the Carriers Act lays down that the common carrier will be liable for the criminal acts of its servants. That is not sufficient to show that the act alleged to have been committed by the accused cannot fall within the definition of criminal breach of trust under Section 405, I.P.C.
6. Till the Carriers Act of 1865 was passed, the law governing common carriers was the same as the Common Law of England. The Act was enacted with the intention of enabling the common carriers to limit their liability for the loss or damage to the property delivered to them to be carried and also to declare their liability for loss or damage to such property occasioned by the neglect or criminal act of themselves, their servants or agents. Under the provisions of the Act, in particular of Section 8 of the Act, a common carrier cannot be permitted to limit his liability for loss occasioned by the criminal acts of the carrier, his servant or agent. This is the only effect of the provision? of the Act regarding criminal acts. It only means that the Carriers Act recognises the liability of the carrier for loss occasioned to the consignor on account of the criminal act of the carrier or his servant or agent. That does not mean that the criminal act cannot be punished under the provisions of the I.P.C. if the necessary ingredients are brought out or established. Just as an act in breach of contract could also be an offence under Section 405 I.P.C. an act which would attract the provisions of Section 8 of the Carriers Act could also come within the scope of Section 405 I.P.C. if the other ingredients exist. It is not correct to say that merely because the Carriers Act, 1865, declares the liability of a carrier for loss occasioned by criminal acts of himself or servant or agent, the criminal act cannot be dealt with under the provisions of the I.P.C.
7. The learned Counsel for the petitioner placed reliance on the decision reported in Yusuff v. Theyyu 1969 Ker LT 667 in support of his contention that the act complained of is a mere breach of contract or breach of condition of an agreement and therefore does not amount to criminal breach of trust. It may be noted that in that decision, this Court had to consider the correctness of a conviction entered for the offence of breach of trust. On the evidence on record, this Court came to the conclusion that the act was merely one of breach of contract and did not amount to criminal breach of trust. It may be that a similar conclusion may be arrived at in the light of evidence which may be placed before the Court. But at this stage, it cannot be said that the act complained of is merely an act in breach of contract or breach of a statutory obligation and does not involve criminal breach of trust.
8. The learned Counsel for the petitioner has produced photostat copies of two letters written by the complainant to one of the accused. One letter refers to the alleged delivery of two consignments to the consignee without production of the consignee copies. The other letter refers to the fact that the goods reached Delhi late in a deteriorated and damaged condition for which a warning was given that claim for damages or losses would be put forward. I fail to see how these letters at this stage can help the petitioners to show that the mens rea is absent in the case.
9. The last argument urged by the learned Counsel for the petitioner is that Section 407 I.P.C. cannot be attracted because the accused represent a common carrier and not merely a carrier. Section 407 I.P.C. does not make any distinction between a carrier and a common carrier. It refers only to the expression 'carrier' and not 'common carrier'. It is clear that the expression 'carrier' in Section 407 I.P.C. includes all types of carriers, including a common carrier or a private carrier. The distinction sought to be drawn is plainly unsustainable in regard to Sec 407 I.P.C.
10. In the result, I do not find any ground to quash the proceedings as requested. The petition, is dismissed.