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Deivanaiammal Vs. Nachammal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1973CriLJ727
AppellantDeivanaiammal
RespondentNachammal and anr.
Excerpt:
- .....in february, 1967, and at the time of the execution of the mortgage, he handed over five prior title deeds to the first accused that subsequently he got the mortgage discharged through the land mortgage bank, and that despite the discharge, the mortgagee failed to hand over the prior title deeds and was therefore guilty of the offence under section 420, indian penal code.2. the case of the accused was that actually the title deeds were handed over by them to the land mortgage bank and the latter bank must have misplaced the same.3. even assuming the complainant's case to be true, no offence has been made out. if at the time of the discharge of the mortgage, the mortgagee had even perversely refused to return the title deeds, it might constitute a violation of an implied contract, and.....
Judgment:

Maharajan, J.

1. There is little substance in this appeal against the order of acquittal of the respondents. The case of the complainant was that he granted a mortgage in favour of the first accused for Rs. 10,000/- in February, 1967, and at the time of the execution of the mortgage, he handed over five prior title deeds to the first accused that subsequently he got the mortgage discharged through the Land Mortgage Bank, and that despite the discharge, the mortgagee failed to hand over the prior title deeds and was therefore guilty of the offence under Section 420, Indian Penal Code.

2. The case of the accused was that actually the title deeds were handed over by them to the Land Mortgage Bank and the latter Bank must have misplaced the same.

3. Even assuming the complainant's case to be true, no offence has been made out. If at the time of the discharge of the mortgage, the mortgagee had even perversely refused to return the title deeds, it might constitute a violation of an implied contract, and it is open to the mortgagor to sue the mortgagee for recoverv of thp title deeds in specie or for damages in the alternative. I fail to see (how this violation of the contract could constitute an offence either under Section 405 or under Section 415, I.P.C. Section 405 prescribes:

Whoever, 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.

There is no proof. that the title deeds have been misappropriated or converted by the accused, much less dishonestly. They are not negotiable instruments or valuable securities and I fail to conceive how the accused could misappropriate or convert to their own use the ancient title deeds of the mortgagor. Even assuming that the mortgagee had wantonly refused to hand over the title deeds in this case there is no basis for this assumption the likelihood being that the title deeds were actually handed over at the office of the Land Mortgage Bank and inadvertently misplaced by the clerks of that Bank - no question of dishonest misappropriation or conversion can be said to have been established.

4. As for Section 415, I.P.C. whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'. I have read the evidence of P.W. 1 and I find nothing m it to show that the accused at the time of the grant of the mortgage practised any deception upon the mortgagor by fraudulently or dishonestly inducing him to deliver any property. The delivery of the title deeds to the mortgagee at the time of the mortgage is effected to satisfy the mortgagee about the title of the mortgagor and sometimes to ensure that no equitable mortgage by deposit of title deeds had already been effected without the mortgagee's knowledge. It is impossible, therefore to hold the mortgagee induced the mortgagor to part with the title deeds at the time of the mortgage. If the mortgagor had refused to part with the title deeds the mortgagee would have refused to advance monies on the security of the property. Therefore there is no question of the mortgagee having fraudulently or dishonestly induced the mortgagor to deliver the title deeds. Nor am I satisfied that the title deeds can be regarded as property within the meaning of Section 415, I.P.C especially when they are not negotiable, nor are they of the nature of valuable security. None of the ingredients of Section 415, Indian Penal Code has been satisfied in this case. The learned Sessions Judge was therefore right in acquitting the respondents. I see no reason, much less any compelling reason to disagree with the learned Sessions Judge. The appeal will stand dismissed.


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