1977 P Cr (PLP)

Katamsath Appana v. Kappoju Appalaraju A I R 1950 Mad. 49; Khitish Chandra 51 Cal. 796 and Basudeb Patra v. Kanal Lal Haidar A I R 1949 Cal. 207 rel. Ch. Nawab‑ud‑Din Mahmood for Petitioners. Nemo for the State. Date of hearing : 10th March 1976. This is a petition filed under section 561‑A, Cr. P. C. for the quashment of a case under section 420, P. P. C. pending before Magistrate 1st Class, Okara, District Sahiwal. The case arises from a direct complaint lodged in the Court under section 420/406, P. P. C. but the learned Magistrate, after considering the summary statements recorded by him, issued process against the petitioners under section 420, P. P. C. only, for their appearance on 28‑6‑1975.

2. The allegation in the complaint is that on 12‑4‑1975, the petitioners/accused came to Faza1 Din, complainant and asked for loan of ornaments and clothes for use on the occasion of some marriage function, that the complainant, thereupon, banded over to the petitioners 12 gold bangles weighing 6 tolas one gold gulooband weighing 4 tolas, kanta two pairs weighing 4 tolas and 4 rings weighing 2 tolas, in all valued at Rs. 12,110 and 4 silk suits valued at Rs. 500, in presence of witnesses, that although the petitioners had promised to return the articles, they neither turned up for 15 days, nor did they return the goods, that the complainant then went to them and they promised to return the articles within two days but they failed to do so and that when the complainant demanded back the articles on the third day, the petitioners told him plainly that they had taken the goods by fraud and would not return the same.

3. The contention advanced was that on the face of the complaint, there was no cheating involved and as such no liability would arise under section 420, P. P. C. It was further urged that even if the allegations were to be taken as true, a mere refusal to return the articles could not constitute an offence under section 403 or 405, P. P. C. either. Reliance was placed on Hit Narain Mahton v. Bed Narain Mistry (A I R 1946 Pat. 125), Karim Dad v. Shamsuddin etc. (1974 P Cr. L J Note 118 at p. 75) and Smt. Nirmalabai Misal v. The State (A I R 1953 Nag. 301.). In the first cited authority, 'A' had owed money to '8', the amount lead been settled by Panchas at Rs. 155 which 'A' bad paid to 'B', but B' though he had accepted the money, had failed to return the handnote and ornaments. 'B' was held not liable as there was no case of entrustment. In the second cited case, a sure of Rs. 18,700 hind allegedly been paid for purchase and supply of buffaloes and horses but without any writing and without the accused having been known to the complainant previously. The Court held the transaction as too absurd to believe and as such the case was quashed as abuse of process of Court. Obviously, neither of these cases has any analogy here. In the third cited case, the applicant had taken ornaments from a shop for approval with promise to return the same in the evening, but upon her failure to do so, had been prosecuted and charged under section 420 and alternatively under section 406, P. P. C. It was held that the property in the goods had, after the expiry of the time for its return, passed to her under the sale of Goods Act and as such its mere retention without misappropriation did not constitute criminal breach of trust. The circumstance of this cited case, too, has no relevance to the matter before me because the present is not a situation where the property in the goods bad passed on to the petitioners.

4. Even if the contention that the complaint does not disclose an offence under section 420, P. N. C. were to prevail, it is not possible to accept that the complaint does not give rise to any other offence under the Penal Code, parti cularly one under section 405, P. P. C. which relates to a criminal breach of trust. A trust implies confidence placed by one in another, a confidence which has been freely given. Where property is taken away by one with the intention that it will continue to be property of the other from whose possession it has been taken away, there will be an entrustment of the property to the person taking it away. In Katamsath Appana v. Kappoju Appalaraju (A I R 1950 Mad. 49), where the accused had taken jewel from a goldsmith promising to return the same but, instead, had retained and claimed the same as his own, it had been held that the accused was guilty under section 406, P. P. C. A similar view had been taken In re: Khitish Chandra (51 Cal. 796). The case of Basudeb Patra v. Kanai Lal Haidar (A I R 1949 Cal. 207) is almost identical to the present case. Here 'A' had handed over ornaments to `B' for a specific purpose and to be returned to 'A' after the purpose was served. It was held that A's failure to return the ornaments amounted to criminal breach of trust.

5. In the light of above discussion, I am unable to hold that the complaint in question does not, prima facie, give rise to any criminal case against the petitioners. I, therefore, dismiss the petition. Petition dismissed.