P (PLP)

The rule was issued in the following circumstances. The opposite party Mahendra Nath Sarkar as complainant filed a petition of complaint before the Magistrate at Jamalpur making certain accusations against an old widow woman by name Jasoda, the foster‑mother of his wife and her husband's brother's son, the petitioner Jogendra Sircar. The allegation was that on or about the 25th of March, 1948, Mahendra Sarkar entrusted to their charge some 57 maunds of gur. On the 18th of June, 1948, he sold some 4 maunds of the quantity which had been kept with the opposite parties Jasoda and Jogendra. On the 16th of September, 1948, Jasoda died and on the 26th of September, 1948, the petitioner Jogendra Sircar repudiated the trust. In these circumstances Mahendra as complainant instituted a case before the Magistrate and under orders of the Magistrate Jogendra was summoned under section 403 of the Pakistan Penal Code. He was convicted under that section, and thereafter he appealed to the Sessions Judge of Mymensingh who was of the opinion that the case was one which fell within the mischief of section 406 of the Pakistan Penal Code and directed the petitioner's trial under that section. The petitioner was duly tried and was con victed, and his appeal to the Sessions judge was dismissed on the 4th of August, 1950. Thereafter he obtained a rule from this Court in the exercise of its Criminal Revisional Jurisdiction. Mr. Talukdar has appeared before the on behalf of the petitioner and has argued that on the fact of this case no case under section 906 of the Pakistan Penal Code has been made out inasmuch as one essential ingredient of the section namely, the entrustment, has not been established. On a scrutiny of the record it is quite clear that Mr. Talukdar's argument must prevail. The record established that Mahendra Nath Sarkar stored some 57 maunds of gur in the kula of the petitioner Jogendra. As is seen from the evidence of Mahendra Nath Sarkar himself, the circumstances did not warrant any finding that there was any "entrustment" of this amount of gur with the petitioner Jogendra. Mahendra, speaking of the transac:ion, says :‑ "I had no pucca kula but accused had. Hence I took the gur for keeping in their kula. With the permission of accused Jogendra and Jasoda I kept the gur in their kulas in the west facing hut. They were entrusted with the same and I would take it and sell at my convenience". It has also been established in the evidence that on the 18th of June, 1948, Mahendra actually did sell some of the gur which had been kept with Jogendra. It is also established in evidence, and has not been denied before me, that at the time when the gur was stocked in the petitioners' house he Was not present ; nor was he present at the time when Mahendra sold the 4 maunds of gur on the 18th of June 1948. Mahendra's own evidence is that he kept the gur in the petitioner's kula with his permission. I am not prepared to hold that this by itself constitutes "entrustment" such as is contem plated under section 406 of the Code. It is true that according, to this statement of Mahendra the petitioner gave permission for the gur to be stored in the house ; but that was all that he did. He was not present at the time when the gur was stored. He was unaware of the quantity that had been stocked there and he was not present at the time when some small portion of it was sold. It is further pointed out that the Magistrate is in error when he claims that the evidence of Mahendra Sarkar is 'supported by that of P. W. 4 Judhistir Ch. Das alone on the fact of the entrustment of the gur with the petitioner. Only a brief reading of the evidence of this witness will show that it is quite incorrect to say that he supported Mahendra as to the fact of entrustment, because in his examination‑in‑chief while saying that he and the complainant put 57 maurds of gur in the kulas in the house of the accused after having dried up the gur ; he went on to say, thal he could not say who took the gur there and when ; and in cross‑examination he roundly stated that he knew nothing about the ,deposit of the gur by the complainant with the accused and that he was not present on that occasion. ' In these circumstances the conviction of the petitioner under section 406 of the Pakistan Penal Code cannot possibly be main tained. The rule is accordingly made absolute and the conviction and sentence set aside. A. H. Rule made absolute.