YUSUFF Vs. YYU

JUDGEMENT

(1.) The appellant is the complainant before the Sub Magistrate, Perinthalmanna alleging an offence under S.406 IPC. against the accused. The complainant's case is that the accused committed breach of trust in respect of 15 grams of gold and 81 rupees paid in cash to him on 23-10-1967 for making a pair of earrings. The accused is a goldsmith by profession. He failed to deliver the ornaments within one week as agreed to by him and in spite of repeated demand, he did not comply with his request to return the identical gold and cash or the ornaments made therefrom. But on 21-12-1967, the accused executed a written agreement to the complainant to the effect that the ornaments will be made and delivered to him on or before 8-1-1968. But the accused did not do so. Hence the appellant filed a complaint before the Sub Magistrate on 1-2-1968.

(2.) On a consideration of the evidence adduced by the complainant and his three witnesses examined as pw 2 Muhammed, Pw.3 Moidunni and Pw.4 Velukutty, together with Ext. P1 agreement, the learned Magistrate came to the conclusion that the complainant has failed to establish that the case comes within the mischief of S.405 IPC. and therefore he found the accused not guilty and acquitted him under S.258(1) Cr. P. C.

(3.) Though the accused denied the entire transaction, even the execution of Ext. P1, there is the evidence of pws. 1 to 4 to establish the complainant's case that 15 grams of gold and 81 rupees in cash had been entrusted to the accused on 23-10-1967 and that the accused accepted his liability either to make the ornaments or to return the property to the complainant in Ext. P. agreement dated 21-12-1967. Therefore I assume for the purpose of this appeal that there has been a valid contract between the appellant and the accused with regard to the gold and cash which pw. 1 entrusted to the accused. The question that arises for consideration is whether the offence of criminal breach of trust under S.406 IPC. has been established beyond a reasonable doubt. In a similar case reported in Amritlal v. Ranglal Agarwala (ILR 1963 Cuttack 589), the prosecution case was that on the 5th September 1959, 10 Bharia, 4 as. and 5 ratis of gold was entrusted for the preparation of some ornaments by one Agarwala and in token of his having received the gold a receipt was also executed by the accused in his favour. The accused gave evasive replies whenever demand of either the gold or the ornaments was made by Agarwala. When the case came in revision before Narasimham C. J., he acquitted the accused of the offence under S.406 IPC. on the ground that the case tin hand was hardly distinguishable from a simple case of breach of contract where a person having received money from other person with a promise to repay it within a certain date fails to repay the same in pursuance of the contract or eventually even goes to the extent of denying having received the money. In this regard the following observation of the learned Chief Justice may be quoted as follows: