1. The accused in C.C. No. 57 of 1935 was found guilty of cheating with respect to a jewel. He falsely represented to the owner of the jewel that he wanted it for use at a wedding, and upon that representation the complainant gave it to him. The accused, instead of using it for that purpose, pledged it with the petitioner and raised a sum of money on it. The joint Magistrate, after convicting the accused, ordered the jewel to be returned to the complainant. P.W. 5, the present petitioner, appealed to the Sessions Judge of South Malabar, who upheld the order of the Joint Magistrate with respect to the jewel.
2. Two questions seem to arise in this petition : (1) Whether the order of the Joint Magistrate was right, and (2) whether, even if it was wrong, this Court should interfere in revision. I have been taken through a number of rulings on the question whether a right to possession accrues to a pledgee where the pledge is taken bona fide; but all that it is necessary to say in these proceedings is that the matter is open to doubt, and that in this criminal case the question was of course never raised or decided whether P.W. 5, the petitioner, took the jewel bona fide or mala fide, and neither of the lower Courts could possibly have given a finding on that point. The Joint Magistrate had therefore to decide whether the jewel should be returned to the admitted owner or to a person whose legal right was in doubt, even if he had acted bona fide. Under such circumstances, I am not prepared to say that the order of the Joint Magistrate was wrong. A number of cases has been quoted in which a High Court in revision has found that the order of the lower Court was wrong and has ordered possession to be given back to persons from whom property was taken. One such case is In re Pandharinath Pundlik I.L.R. (1915) 40 Bom. 186, where the right to possession was a very obvious one, in that the property passed was a currency note, with regard to which title passes with possession. In Naini Mal v. Emperor (1923) 74 I.C. 708, 59 bags of mustard seeds were stolen, a part of which was sold bona fide to some merchants. Long afterwards, when the case came up for trial, the Magistrate ordered the merchants to refund to the complainant, not the mustard seeds actually stolen, but the equivalent of them; that is to say, the merchants were ordered to recompense the complainant and not merely to return stolen property. The case in Shwe Wa v. C.I. Mehta I.L.R. (1927) 5 Rang. 553 was more like the present one, in that there Was a breach of trust. The principle was laid down that where a question of right to possession exists between the complainant and a third person, the property should be returned to the third person. With all respect to the learned Judge who decided that case, I doubt whether we are entitled to go as far as that. If that were always the rule, then one would expect the wording of the Criminal Procedure Code in Section 517 regarding the return of property to be much more explicit than it is. Moreover, in that case the Judge assumed that there could be no doubt that the person from whom the property was recovered was entitled in law to retain possession. The Magistrate is given a wide discretion, and unless it is clear that he exercised it on some wrong principle and that he returned the property to somebody obviously not entitled to have it, this Court in revision will be unwilling to interfere.
3. The petition is accordingly dismissed.