RAMALINGAM Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS revision is listed before this Court as a result of the judgment dated 17.1.1991 rendered by the Hon"ble Supreme Court of India in Criminal Appeal No.40 of 1991. The revision petitioners (out of which the second revision petitioner is stated to have died pending revision) were arrayed as the accused in C.C.No.1349 of 1980 on the file of the Sub Divisional Judicial Magistrate, Ulundurpet. That was a private complaint taken on file and the second respondent in this revision was the complainant in that Calendar Case. That private complaint was taken on file for an offence punishable under Sec.406 of the Indian Penal Code and after a full-fledged trial, it ended in a conviction against each of the accused, they being sentenced to one year rigorous imprisonment. The convicted accused appealed in C.A.No.36 of 1982 and the learned Additional Sessions Judge, South Arcot Division, Cuddalore, by judgment dated 3.2.1984, confirmed the judgment of the learned trial Magistrate. The convicted accused took up the matter further before this Court in Criminal Revision Case No.71 of 1984. It may be noticed here that even though the conviction of the trial court was on private complaint, yet in view of the fact that the accused had suffered a conviction, the State was defending the cause of the complainant before the appellate court as well as before this Court in the revision. Hon"ble Mr.Justice Dr.David Annoussamy, as His Lordship then was, by judgment dated 26.9.1986 disposed of that revision. The disposal of that revision is seen to be not on merits but on the basis of a joint memo filed by the parties before him in that revision. It may be noticed that while that revision was disposed of, the complainant in the private complaint was not a party on record to the revision but, however, this Court is informed that the complainant in the private, complaint also signed in the joint memo filed before the learned Judge at the time which enabled the learned Judge to dispose of the revision on the basis of that joint memo. The complainant in the private complaint, who was examined as P.W.1 in that calendar case, took up for challenge the order of this Court in the revision before the Hon"ble Supreme Court of India. Before the Hon"ble Supreme Court of India, P.W.1 in the calendar case disowned the joint memo stating that he was not a party to the joint memo and that he had not signed in the joint memo. It was also his specific case before the Hon"ble Supreme Court of India that he was not present in the court on the date of disposal of the revision petition. It is seen that affidavits were filed before the Hon"ble Supreme Court of India. The Hon"ble Supreme Court of India, taking note of the events that were brought to their Lordships notice, disposed of that appeal in the following lines: "In view of this state of affairs, we have no alternative but to set aside the order of the High Court, remit the matter to the High Court with a direction that the High Court will examine the rival contention in this behalf, record a specific finding whether or not the appellant was a party to this arrangement incorporated in the joint memo and then proceed to dispose of the revision application in accordance with law. The parties are also directed to file copies of the affidavits tendered in this Court before the High Court for the perusal by the learned Judge."

(2.) THUS, the remitted revision is before this Court. A memo is filed by Mr.T.K.Sampath, learned counsel appearing for the respondent No.2, stating that on the orders of this Hon"ble Court, the records were directed to be kept in a sealed cover the Registry was a ways producing the same before this Court. It appears from the records available in the court as on date that Hon"ble Mr.Justice Janarthanam, as His Lordship then was, before whom this revision was listed for disposal, passed an order on 22.8.1991 directing the Registry to keep the records in a sealed cover under the custody of the Additional Registrar of this Court and that the sealed cover should be brought before this Court on the date of hearing. The Registry now informs this Court that despite their best efforts, they are unable to locate the records immediately and there is some difficulty in tracing the records. The learned counsel for the second respondent who had been subsequently impleaded in this revision after the case was disposed of by the Hon"ble Supreme Court of India, had already filed a typed set of papers containing the Oral evidence of P.Ws.1 to 7. Mr.K.V.Sridharan, learned counsel appearing for the revision petitioners, had also produced before this Court the certified copies of Exs.P-1 to P-6. In view of the materials noticed above viz., a typed set of papers containing the oral evidence of P.Ws.1 to 7 filed before this Court by the learned counsel for the second respondent and the production of certified copies of Exs.P-1 to P-6 by the learned counsel for the revision petitioners. I am of the opinion that the disposal of this revision need not wait till the records are actually traced and produced before this Court inasmuch as this revision is of the year 1984. This being a revision, I am of the considered opinion that the revision could be disposed of, on the basis of the materials referred to above in the context of the findings rendered by the courts below in the judgments under challenge. In this judgment hereafterwards the contesting parties to the revision would be referred to as the complainant and the accused. I am hereunder stating the minimum facts which enable this Court to understand the real problem that arises in this criminal case and dispose it of.

(3.) MR.T.K.Sampath, learned counsel appearing for the second respondent, argued that to make out an offence under Sec.405 of the Indian Penal Code, the prosecution party must establish the entrustment followed by the accused not returning the property to the prosecution party. There is no need, according to the learned counsel for the second respondent, to show anything over and above the above facts and establish that the accused promised to return the articles. Normally speaking, entrustment followed by the articles entrusted not being returned would be sufficient. But, again, it depends upon facts of each case. On entrustment being established, whether there should be a premise to return the articles or not would again depend upon facts of each case. In this case, the appellate Judge had categorically found that from Ex.D-1, it is seen that the complainant in the private complaint, namely P.W.1, had admitted that the jewels in question belong to the three temples namely Mariamman temple, Selliamman temple and Draupathiamman temple. In view of this categorical admission of P.W.1 in the earlier case, as extracted above, relating to the very same property it is necessary for the prosecution to establish that the accused while taking the jewels under acknowledgment contained in Ex.P-1 promised to return the same to the prosecution party. Criminal breach of trust is defined under Sec.405 of the Indian Penal Code. A reading of Sec.405 of the Indian Penal Code shows that the prosecution party should not only establish the entrustment but also the dishonest misappropriation or conversion of the property entrusted to the own use of the party to whom the entrustment was made. In other words, dishonest misappropriation or conversion to one's own use or dishonestly using or disposing of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, is an essential requirement. In this case, the prosecution party relies upon a contract in and by which the accused promised to return the jewels. The written contract is Ex.P-1 and it does not contain a promise to return. P.W.1's evidence that the accused promised to return the jewels is not supported by the evidence of P.W.4. Though P.W.6 lent support to the oral evidence of P.W.1 about the promise to return, yet in view of the fact that neither P.W.1 nor P.W.4 speaks about the presence of P.W.6 at the time when the entrustment was made, his evidence is not worth acceptance. On the materials noticed namely that there is an admission on the part of P.W. 1 in the earlier calendar case that the jewels belong to all the three temples, it is all the more necessary that the prosecution must establish that the accused promised to return the jewels.