B MEENAKSHISUNDARAM CHETTY Vs. KUTTIMALU

JUDGEMENT

(1.) Plaintiff in O.S. No. 42 of 1947 of the Subordinate Judge's court, Kozhikode is the appellant in this second appeal. He is a forest contractor at Coimbatore, and, according to him, a sum of Rs. 14,050/- kept by him in his house at Coimbatore was stolen by defendant 2 on the 11th May 1945. Immediately after the alleged occurrence he made a complaint to the Police, and in due course they apprehended defendant 2 who is a habitual offender. At the time of his arrest for this theft he was living with a girl in a lavish style, and it was this circumstance which first roused the suspicion of the police officers. During the search following the arrest the police recovered a sum of Rs. 2,000/- from defendant 2. Part of this amount, namely, Rs. 1,800/-, was in one rupee notes and was kept stitched up in a pillow and the rest, namely, Rs. 200/-, was in hundred rupee notes and was kept in a trunk. The police also recovered from the trunk a deed (Ext. Al) taken in the name of defendant 2's mother, defendant 1, for the assignment of a kanam right in respect of the plaint property for Rs. 3,100/-. They also recovered numerous other articles which are not material for the present case. At the time of his trial for the theft defendant 2 pleaded guilty to the charge and he was convicted under S.457, 380 and 75, Indian Penal Code, and sentenced to undergo rigorous imprisonment for six months. According to the plaintiff, the consideration for Ext. Al was paid by defendant 2 with part of the amount stolen from him and defendant 2 took that deed in defendant 1's name benami for him, and so the plaintiff is entitled to get the benefit of that assignment, and he had been asking defendants l & 2 to transfer the right thereunder to him and they were also promising to execute an assignment in his favour. But some time after the release of defendant 2 from the jail, defendant 1 executed an assignment (Ext. B10) in favour of defendant 3 conveying to the latter the rights under Ext. Al. This assignment, the plaintiff alleges, was executed without consideration and at the instigation of defendant 2 and in order to defeat him. Plaintiff alleges further that, at the time he took Ext. B10, defendant 3 was fully aware of the fact that Ext. Al was taken with the funds belonging to the plaintiff and stolen from him. On these allegations plaintiff brought the suit for a declaration that he is the true and beneficial owner of the plaint property and for directing the defendants to surrender possession of the same with mesne profits. Defendant 4 is a person who has taken an assignment from defendant 3 after the institution of the suit. He was impleaded in the rase after the assignment in his favour, and after he was impleaded the plaintiff also claimed damages from him for quarrying and removing stones from the plaint property. Defendants 1 to 4 contested the suit. They denied that the consideration for Ext. Al was paid with the money stolen from the plaintiff and contended that the plaintiff was trying to take undue advantage of the fact that defendant 2 was convicted for the theft. According to them, Ext. Al was not taken with defendant 2's funds or benami for him and it was really taken by defendant 1 for her own benefit and with her own funds. Defendants 3 and 4 contended that they had taken the assignments in their favour for valuable consideration and bona fide and that, therefore, the plaintiff was not entitled to get any decree as against them. Defendant 4 also disputed the claim for damages and he claimed in his turn that he was entitled to get Rs. 7,000/- as value of improvements in case of the plaintiff being found entitled to recover possession of the property. The learned Subordinate Judge repelled the contentions of the defendants and gave a decree to the plaintiff for recovery of possession of the plaint property with mesne profits at Rs. 100/- per year payable by defendants 1 and 3 from the date of plaint till the date of surrender of possession and for recovery of Rs. 341-4-0 from defendant 4 as damages. He also dismissed defendant 4's claim for value of improvements. From the decree of the subordinate judge defendant 4 filed an appeal in the District Court of South Malabar, and the learned District Judge allowed that appeal and dismissed the plaintiff's suit holding (1) that it had not been proved that defendant 2 had committed theft of plaintiff's money, (2) that there was no proof that Ext. A1 was taken with the stolen money belonging to the plaintiff or even with defendant 2's funds, and (3) that defendant 3 had taken the assignment, Ext. B10, bona fide and for valuable consideration and without notice of any invalidating circumstance. This second appeal is filed against the appellate decree of the learned District Judge.

(2.) To prove the theft of Rs. 14,050/- belonging to him by defendant 2 and the recovery of a part of the stolen money and Ext. Al from defendant 2, the plaintiff mainly relies upon Ext. A2 which is the judgment in the criminal case in which defendant 2 was convicted for the said theft and the evidence of Pw. 3, a retired police constable who assisted the Sub-Inspector in arresting defendant 2 and conducting the search and recovering the money and document from him; and it was relying on Ext. A2 and Pw. 3's evidence that the learned Subordinate Judge found that the amount had been stolen by defendant 2 from the plaintiff and that Ext. Al was recovered from him at the time of his arrest for the theft. In the appeal the learned District Judge has discarded both these items of evidence, Ext. A2 on the ground that the conviction of defendant 2 by the criminal court is no evidence of the theft so far as the civil court is concerned, and the evidence of Pw. 3 on the ground that he had no direct knowledge of the theft and was not therefore competent to say whether defendant 2 had stolen the money belonging to the plaintiff or not. Plaintiff himself was not examined in the Trial Court, and the learned District Judge has emphasised the omission to examine him as a circumstance tending to cast suspicion on his case of theft of the money.

(3.) It may be said at once that so far as the factum of theft was concerned the learned District Judge was perfectly right in refusing to act upon the evidence of Pw. 3 since he had no direct knowledge of the theft and could only speak to the recovery of Rs. 2,000/- and Ext. Al and the other articles from defendant 2 at the time of his arrest. The recovery of these articles by itself is insufficient to prove the theft, and Pw. 3's statement that defendant 2 had stolen the money from the plaintiff can only be regarded as his opinion based on the recovery of the money. Such opinion is perfectly irrelevant and inadmissible. But the learned District Judge was not right in brushing aside Ext. A2 as irrelevant and in considering that the omission to examine the plaintiff was suppression of material evidence tending to cast suspicion on his case of theft. No doubt, it is a well recognised principle of law that a conviction in a criminal case is no evidence of the facts on which that conviction was based in a civil case in which those facts are in issue or form the subject matter of the suit. But the authorities are clear that, when the conviction is based on a plea of guilty, that plea is relevant and to prove it the judgment in the criminal case is admissible in evidence in the subsequent civil suit in which the facts giving rise to the charge are in issue or form the subject matter of the suit. In Taylor's Treatise on the law of Evidence, volume II, 1931 Edition, it is said in Para.1694: