P L D 1963 Dacca 983 (PLP)

4. It is not disputed that the complainant did entrust a matia red cow to the petitioner and the latter failed to return it to the former. The defence of the petitioner is that the cow has been devoured by a tiger or lost. The defence examined several defence witnesses to prove that the cow that was sold by the petitioner in the hat was purchased by him from D. W. 1 Susila Bala Debaya and was not the one answering to the descrip tion of the cow that was entrusted to the petitioner by the complainant. The learned Magistrate as well as the learned Sessions Judge have rightly disbelieved the evidence led by the petitioner on this point. The pertinent question for consideration, however, is whether the petitioner's explanation for not returning the cow to the complainant is reasonable and bears any semblance of truth. P. W. 1 Suresh Chandra Sen Gupta has stated in his examination :‑ "My wife again went to the house of the accused Khalil with Renuka Bala Datta on the 3rd Poush 1366 B.S. corresponding to 19‑12‑59 to the cow. She came back and reported tome that the health of the cow had shattered down. We then decided to bring back the cow from the house of accused Khalil. We asked Khalil to return the cow on the following day and on subsequent days. He put us off on different pleas. On 22‑1‑60 Friday corresponding to 8th Magh 1366 B. S. accused Khalil told on query that the cow was not traceable and suspected that the cow might have been taken away by a tiger." Having regard to the facts and circumstances of the case it is quite patent that the petitioner deliberately put off returning the cow with an ulterior motive. P. W. 6 Kishamuddin Ahmed is a Chairman of Sekpura Union Council. He stated in his evidence. "About 10/12 days before the date of seizure of the sale receipt from accused Khalil, accused Khalil reported to me that one heifer of his had been lost." The sale receipt was in respect of the cow sold by the petitioner the cow of the complainant was worth Rs. 500 and was, therefore, a valuable property and yet the petitioner took no steps to inform the complainant about the missing cow, It was only on the complainant's query that the petitioner came out with his suspicion that the cow had been taken away by a tiger. There is reliable evidence besides the evidence of P. W. 1 to show that: the petitioners did not return the cow on various pretexts on repeated "takids" (demands). There is satisfactory evidence to prove that as a matter of fact on 11th Poush 1366 B. S. corresponding to 27‑12‑59 the petitioner actually sold a cow which bore the description of the cow that was entrusted to him by the complainant. It is true that the matia red cow that was actually sold by the petitioner at a price of Rs. 110 in the hat has not been legally identified to be the cow that was actually made over to him by the complainant. Nonetheless the fact remains that a cow answering to the description of the cow that was entrusted to the petitioner was .in fact sold by the petitioner. One cannot be unmindful of the fact that the attempt of the defence to prove that the cow which was sold to one Mayenuddin was not the one entrusted to the petitioner has failed miserably. In the case of Jaikrishnadas Manohardas Dasai and another v. State of Bombay (A I R 1960 S C 889) the Supreme Court of Lidri has made the following observation at page 891, para. 4: ‑‑ "Direct evidence to establish misappropriation of the cloth over which the appellants had domination is undoubtedly lacking, but to establish a charge of criminal breach of trust,) the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property anal failure in breach of an obligation to account for the property entrusted, if . . . . . proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not in all cases be founded merely on his failure to account for the property entrusted to him or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intention may readily be made."

5. In accordance with the principle enunciated in that case, and in the light of the circumstances of this case, an inference of misappropriation with dishonest intention may readily be made against the petitioner. The circumstances are as follows: (i) The petitioner put off returning the cow to the com plainant on several occasions on some pretext or another although the complainant made several requests to return the cow; (ii) it was only on an enquiry made by the complainant that the petitioner came out with an explanation that the cow might have been taken away by a tiger; (iii) P. W. 6 states that a few days before the seizure of the sale receipt Exh. 1 from the petitioner, the latter reported to the former that he (i.e., the petitioner) has lost his heifer; (iv) no information was lodged at the thana and there is no evidence to indicate even remotely that the cow might have been lost as stated by the petitioner; (v) that a cow answering to the description of the cow that was entrusted to the petitioner was actually sold by the petitioner about three weeks preceding the day when com plainant was told by the petitioner that the cow might have been taken by a tiger; and (v) last though not least the fact that the petitioner has utterly failed in his attempt to prove that he had purchased from D. W. 1 Sushila Bala a cow of the description of the cow that was entrusted to him by the complainant and that it was the petitioner's cow that was sold by him.

6. Both the Magistrate and the learned Sessions Judge have rightly disbelieved the explanation given by the petitioner for not returning the cow. There is, therefore, no doubt about the fact that the petitioner has dishonestly misappropriated the cow that was entrusted to him by the complainant and that the petitioner has been rightly convicted and sentenced as above. It is true that the petitioners filed a case of theft against the complainant on the 27th January 1960, a couple of days before the present case was started. It appears, however, that the case ended in acquittal. On the evidence on record it is difficult to hold that the complainant brought a false case of criminal breach of trust against the petitioner because of the aforesaid theft case. The Rule is, therefore, discharged. The conviction and sentence passed on the petitioner are maintained. The petitioner must now surrender to his bail and serve out the remainder of the sentence of imprisonment passed on him. S. B./K. B. A. Rule discharged.