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K.C. Thomas Vs. Avirah Varghese - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1974CriLJ207
AppellantK.C. Thomas
RespondentAvirah Varghese
Cases ReferredState of Gujarat v. Jaswantlal
Excerpt:
.....more than four years for no fault of the petitioner, the maxim actus curiae neminem gravabit applies. petition is not barred by limitation. - the learned magistrate discharged the accused, having found that the prosecution had failed to make out a case, which, if unrebutted, would end in conviction. i am not therefore, in agreement with the contention of the learned counsel for the revision petitioner that there is no fiduciary relationship between the hirer and hiree in an agreement like the one spoken to by p. 1. it may be noticed that in all such transactions like consignor and consignee, bailer and bailee and hirer and hiree there is an element of trust implied in the transaction. then the question is, in a case like this whether the retention is with dishonest intention or not......motor was to be returned to him after the reason was over, but in violation of the condition of entrustment the accused did not return the motor on the expiry of the stipulated period. the complainant goes to the extent of saying that actually on inquiry being made, he came to know that the accused had disposed of the motor in favour of a cooperative society of which p. w. 6 was the secretary.3. that the accused had received the motor on 7-9-1970 is a fact which admits of no doubt. however, the defence has a case that the entrustment was not in the manner alleged by the prosecution. according to the defence, a large sum of money was due from the complainant to the accused, and it was for that reason that the accused was allowed to keep possession and make use of the motor.4. sri c. k......
Judgment:
ORDER

K. Bhaskaran, J.

1. This criminal revision is at the instance of the accused against whom the respondent had filed a complaint alleging criminal breach of trust with respect to a motor pump and accessories which he had entrusted with the accused. The learned Magistrate discharged the accused, having found that the prosecution had failed to make out a case, which, if unrebutted, would end in conviction. However, the revisional Court reversed this finding of the learned Sub-Magistrate, and remanded the matter to the trial Court with a specific direction that a charge might be framed against the accused and the case be tried and the property be disposed of according to the result of the case. It may incidentally be noted that when the order of discharge was passed, the accused had filed an appeal before the District Magistrate questioning the propriety of the order passed by the learned Magistrate directing the property seized to be handed over to the complainant, and in reversal of the order passed by the learned Magistrate, the Dist. Magistrate had passed an order directing that the property might be handed over to the accused. It was subsequent to that, revision against the order of discharge was filed and the learned District Magistrate was pleased to allow the revision.

2. In this revision the main question is whether an offence falling within the purview of criminal breach of trust has been made out. The facts to be stated are as follows : - The accused who is the complainant's brother's son-in-law had received from the complainant his motor pump with its accessories for pumping out water for his cultivation during the agricultural season 1970-71 agreeing to pay a hire of Rs. 1,200/- for that period. According to the complainant, this motor was to be returned to him after the reason was over, but in violation of the condition of entrustment the accused did not return the motor on the expiry of the stipulated period. The complainant goes to the extent of saying that actually on inquiry being made, he came to know that the accused had disposed of the motor in favour of a cooperative society of which P. W. 6 was the Secretary.

3. That the accused had received the motor on 7-9-1970 is a fact which admits of no doubt. However, the defence has a case that the entrustment was not in the manner alleged by the prosecution. According to the defence, a large sum of money was due from the complainant to the accused, and it was for that reason that the accused was allowed to keep possession and make use of the motor.

4. Sri C. K. Sivasankara Panicker, the, learned Counsel for the revision petitioner, contends that the learned District Magistrate had fallen into error in reversing the order of discharge that was passed by the learned Magistrate in a considered order. It is also argued that it was not open to the learned District Magistrate sitting in revision to pass an order directing the trial Court to frame a charge and to proceed with the trial. The further contention is that in any event, the learned District Magistrate who had earlier ordered the release of the motor in favour of the accused in revision could not have, in review of his own earlier order, passed an order directing that there may be a fresh order of disposal of the property according to the result of the case.

5. Criminal breach of trust' has been defined in Section 405 of the I. P. C. as follows:

Whenever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust.

The ingredients of the offence are:

(1) There should be an entrustment by one person to another of the property, or with any dominion over property; (2) such entrustment must be in trust; (3) there must have been a misappropriation or conversion to his own use by the person who received the property in trust; and (4) such conversion or retention of the property must be against or in violation of any direction, or law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust.

6. Sri Sivasankara Panicker argues that there has not been any entrustment in the sense in which the term has been used in Section 405 of the Code. According to him, the accused received, on the prosecution's own showing the motor under a hire agreement whereby for use for one season the accused was entitled to keep possession, and offence, if any, would start only after the expiry of the period of possession in terms of the contract. The argument is that it is only if thereafter there has been an entrustment the provisions of the section could be attracted. Regarding the term 'entrustment' lucid exposition is given at page 2868 of Gour's Penal Law of India, 8th Edition, Volume 4. It reads as follows:

Entrustment is an essential element of the offence defined in Section 405, Penal Code. The word 'entrust' is not a term of art. In common parlance it embraces all cases in which a thing is handed over by one person to another for specific purpose. Entrustment need not be express; it may be implied.

In the first place, then, there must be a trust connected with the use of property. A trust is defined to be 'an obligation annexed to the ownership of property and arising out of confidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of another, or of another and the owner'. But it is not in this narrow sense that the term has been used in this section, for it includes not only trustees, properly so-called, but also those whose position is analogous to that of trustees, who become liable to the other by similar obligations arising out of a relationship implied by act and conduct which give rise to the same or similar confidence and duties. 'Entrusted' is not necessarily a term of law. It may have different implications in different contexts. In its most general significance all it imports 'is a handing over the possession for some purpose which may not imply the conferring any proprietary right at all'. The word 'entrusted' used in this section is not a legal term which has a definite precise meaning attached to it. It is an ordinary word, a word in common use.

7. Placing reliance on the decision of the Supreme Court in State of Gujarat v. Jaswantlal : 1968CriLJ803 Sri Sivasankara Panicker argues that the mere handing over of the article will not constitute the offence if it is a case of hire purchase or sale etc. The passage relied upon by the learned Counsel from the Supreme Court decision runs as follows:

The expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an entrustment. Thus where the Government sells cement to its contractor solely for the purpose of being used in connection with the construction work the circumstance does not make the transaction anything other than sale. After delivery of the cement the Government has neither any right nor dominion over it. If the purchaser or his representative fails to comply with the requirements of any law relating to cement control he should be prosecuted for the same. But it cannot be held that there was any breach of trust.

8. Sri M. N. Sukumaran Nayar, learned Counsel for the complainant, submits that the decision of the Supreme Court cited, cannot advance the case of the accused in this case inasmuch as there is no case that the movable property has been sold to him or that property in the goods had passed to the accused. The prosecution case definitely is that the property was handed over for use by the accused in 'terms of the contract on specific understanding that on the expiry of the period it would be returned to the complainant In other words, the property in the goods remained with the complainant, he continued to be the owner, and it was only the dominion of the property with the right to use it that was given to the accused. In terms of the agreement the accused was to return the identical motor to the complainant. This makes all the difference. In the case decided by the Supreme Court, the Government gave cement for use by the contractor for the building purpose. The accused (contractor) had no obligation to return the cement to the Government, as the Government had ceased to have both ownership and dominion over the cement once it was handed over to the contractor in pursuance of the sale. Here, the position is quite different, After the period of hire was over the accused was in terms of the contract expected to return the identical motor to the complainant. I am not therefore, in agreement with the contention of the learned Counsel for the revision petitioner that there is no fiduciary relationship between the hirer and hiree in an agreement like the one spoken to by P. W. 1. It may be noticed that in all such transactions like consignor and consignee, bailer and bailee and hirer and hiree there is an element of trust implied in the transaction. Therefore, the contention of the counsel for the revision petitioner that it is purely in terms of the agreement for hire, and for consideration of the hire, that the motor was entrusted to the revision petitioner and, therefore, no question of trust or entrustment in the sense in which that term is used in Section 405, I. P. C. arises in the present case, does not appear to be correct.

9. The next question is whether there has been any conversion or illegal retention of the property by the accused. Here, we have to draw the distinction between criminal breach of trust on the one hand and cheating on the other. In the case of cheating the dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, the person who comes into possession of the movable property receives it legally, but illegally retains it or converts it to his own use against the terms of the contract. Then the question is, in a case like this whether the retention is with dishonest intention or not. Whether the retention involves criminal breach of trust or only a civil liability would depend upon the facts of each case. The expiry of the stipulated period for the user would not by itself mean that the accused has committed the offence of criminal breach of trust If the accused retains possession of the property with dishonest intention, to make either illegal gain for him, or to cause illegal loss to the person who entrusted the property to him, he commits a criminal offence apart from civil liability, if any.

10. In this case unfortunately, there is no written agreement evidencing the terms of the contract. The learned Counsel for the complainant-respondent submits that the motor was entrusted for the season 1970-71 for the purpose of pumping out water from the revision petitioner's property and that in terms of the contract when that season was over, he should have returned the motor without any demur or protest. Without doing so, it is pointed out, he not only retained possession, but made over the motor for the use of somebody else. The purpose for which the motor was taken on hire by the revision petitioner is not very clear in the prosecution evidence. It may be as suggested by the defence, that he was having the work of pumping out water not only from his own land, but also from the land of others. As matters now stand, this suggestion of the defence cannot be said to be absolutely baseless inasmuch as it is in evidence, or at least there is a claim by the accused, that he had two motors, besides this motor hired from the complainant. If, as a matter of fact, the hiring was for the purpose of carrying on pumping work by him without restricting it to the accused's land, it cannot be said that in keeping the motor with the Society of which P. W. 6 is the Secretary, the accused has committed criminal breach of trust. However, the learned Counsel for the revision petitioner points out that when the conduct of the accused is considered in the context of his plea that the entrustment to him was not really on hire, or for a limited period, but by way of security, which is an absolute falsity, the dishonest intention of the accused has to be inferred. As the prosecution evidence is not very positive on this aspect of the matter, I am in agreement with the view of the trial. Court, though for different reasons, that the dispute is of a civil nature, and no offence under Section 405, I. P. C. is made out.

11. Regarding the contention pertaining to the correctness of the direction given by the revisional Court with respect to the disposal of the property, and also with respect to the direction for the framing of charge. I do not think it necessary to go into that question now, as the revision could be disposed of on the point which has already been considered. I, therefore, allow the revision and set aside the order passed by the learned District Magistrate. The order of the trial Court discharging the accused is confirmed, but in modification of the trial Court's order, I direct, as was held by the learned District Magistrate in appeal, that the motor may be handed over to the accused in view of the order of discharge.


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