1. The applicant Nirmalabai was charged under Section 420 and, alternatively, under Section 406, Penal Code, by the First Class Magistrate, Nagpur, in respect of gold ornaments delivered to her on 1.12.1949 by Bhogilal (P.W. 4) at his shop in Sitabuldi, Nagpur. Her application for quashing the charges was dismissed by the First Additional Sessions Judge, Nagpur; and she has now come up in revision to this Court.
2. The prosecution case was, briefly stated, to the effect that the applicant had on 1.12.1949 taken the ornaments, which were worth about Rs. 2,415/-, on approval from Bhogilal's salesman V.G. Deshmukh (P.W. 3) and promised to return them in the evening. She failed to do so, however, or to pay for them; and a report 'vide' Ex. P-2 was made to the police on 21.7.1950, She was thereafter, challaned, and in examination denied, that she had taken any ornaments from Bhogilal's shop on 1.12.1949.
3. V.G. Deshmukh's description of the transaction was in the following terms:
I showed the articles to the accused. She selected some articles and took them home for approval. At that time no price was paid. If the articles were approved then we were to receive payment.
Bhogilal (p.W. 4) said:
Deshmukh had shown her the articles and asked me if he could give them to the accused on approval to be returned in the evening. I permitted.
Thanharsi (P.W. 5) also declared that the ornaments had been given on approval by Deshmukh and that the applicant had said that she would return them in the evening.
4. The prosecution case thus showed that the ornaments had been given on approval; and the applicant's Learned counsel contended that they had passed to her as buyer under Section 24, Sale of Goods Act, 1930. That section runs as follows:
When goods are delivered to the buyer on approval or 'on sale or return' or other similar terms, the property therein passes to the buyer
(a) When he signifies his approval or acceptance to the seller or does any other act adopting the transaction;
(b) if he docs not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time.
5. The applicant's contention was repelled by the learned Additional Sessions Judge in the following terms:
Section 24 will be applicable only when the goods are delivered to the buyer on approval. It is, therefore, necessary to consider whether the prosecution evidence shows that the applicant was the buyer of the ornaments in question.
According to Section 2(1), the buyer means a. person who buys or agrees to buy goods and, according to Section 4(1), a contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. Thus, in a contract of sale the most essential element is the settlement of price. The prosecution evidence of Bhogilal (P.W. 4) and other witnesses does not, however, show that there was any settlement of price before the applicant took the ornaments in question on approval. From their evidence it appears that a contract of sale, including the settlement of price, was to take place if and when the applicant approved the ornaments in question. Thus from the prosecution evidence it prima facie appears that the applicant had not become a buyer of the ornaments in question when she is said to have taken them on approval on 1.12.1949 from the shop of Bhogilal. Consequently, it cannot be said that Section 24, Sale of Goods Act, can absolve the applicant from the-criminal liability, if any, arising from the transaction in question.
6. The definition of 'buyer' in Section 2(1) is subject to the prefatory words 'unless there is anything repugnant in the subject or context'; and at page 5 of Pollock and Mulla's 'The Indian Sale of Goods and the Indian Partnership Acts', 2nd Edition, 1950 there is the comment that the context of Section 24 shows that 'buyer' is not there used in the sense of the definition, as the person there called the buyer is in law a bailee in possession of goods with the option to purchase. The applicant was, therefore, not a buyer as denned in Section 2(1); and under Section 24(b) the property, which had been delivered to her on approval, passed to her if she failed to signify her approval or acceptance to the seller and retained the property without giving notice of rejection. If a time for the return of the goods was fixed, the property passed to her on the expiration of that time; and if no time was fixed, the property passed to her on the expiration of a reasonable time. As the time fixed was, according to Bhogilal and Thamhasi, the evening of 1.12.1949 and the applicant had not by then signified their approval or acceptance to the seller but retained the ornaments without giving a notice of rejection, property in them had] passed to her.
7. Bhogilal too had, it appears, for a long time not regarded the applicant's failure to return the ornaments as a criminal act, because, although the transaction in question took place on 1.12.1949, a report to the police was not made until 21.7.1950. He too had not issued a written notice to her or to her husband concerning them; and he admitted in cross-examination that her husband was his 'customer for money lending' and that she was his 'customer for purchasing ornaments since 40'. Bhogilal had, clearly enough, trust in the applicant, and the mere retention of property without misappropriation does not constitute criminal breach of trust nor does a mere broach of contract give rise to a criminal prosecution. It is true that the applicant adjured receipt of the ornaments, but this did not relieve the prosecution of the burden of showing that there was a prima facie case against her under Section 406 or Section 420, Penal Code. This burden was not, in my view, discharged, and it seems to me also that the case is one of an essentially civil law character.
8. The application accordingly succeeds and the charge framed against the applicant is quashed.