UNITED PROVINCES Vs. KASTURI LAL RALIA RAM

JUDGEMENT

(1.) The facts leading up to this appeal lie within a narrow compass. At the relevant time the Plaintiff firm was a dealer in bullion and other goods at Amritsar and was registered under the Indian Partnership Act. Ralia Ram, a partner of the firm, arrived at Meerut by the Frontier Mail at about midnight of 20-9-1947 for selling gold, silver and other goods in the Meerut market and while passing through the Chaupla Bazar, was taken into custody by three police constables. After his belongings had been searched, he was taken by the constables to the Kotwali police station. He was detained in the police lock up there and his belongings, which consisted of gold, weighing 103 Tolas in Mashas and 1 Ratti according to the Meerut weight and silver, weighing 2 maunds and 6 seers, were kept in the police custody. He was released on bail on 21-9-1947 and sometime thereafter the entire silver was returned to him. We are, therefore, not concerned any more with the silver in this case. The gold was, however, not returned to him in spite of repeated requests and the Plaintiff firm, which was the owner of the gold, accordingly instituted a suit against the UP Government for a decree directing the return of the detained gold and in the alternative for a decree for a sum of Rs. 11,075/10/0, which was the price of the gold and Rs. 355/- on account of interest thereon by way of damages as well as future interest.

(2.) The UP Government filed a written statement denying its liability to return the gold or to pay its price notwithstanding its admission that the gold was not returned to the Plaintiff firm. According to the Government, the gold was taken into custody by Mohammad Amir, head constable and placed in the police Malkhana under his own charge, but he misappropriated the gold and fled away to Pakistan on 17-10-1947 without giving the key and the charge of the Malkhana. He also misappropriated some cash and articles deposited therein. It was further alleged that a case Under Section 409, IPC and Section 29 of the Police Act was registered against Mohammad Amir and investigations were made against him, but he could not be apprehended in spite of earnest efforts. It was then said that the employer was not liable for the criminal acts of its servant if he did not act in the course of his employment and misconducted himself not for his master's benefit but for his own gain. In the end it was also alleged that the suit was not maintainable against the Government.

(3.) The trial court found that the gold, not returned to the Plaintiff, weighed 103 Tolas 6 Mashas and 1 Ratti according to the Meerut weight, that the police constables arrested Ralia Ram because they suspected that he was carrying stolen property, that in arresting him the constables acted within their power Under Section 54, Code of Criminal Procedure that there was constituted the relationship of bailor and bailee between the Government and the Plaintiff firm, that the Defendant and their employees, namely, the police constables and the Sub-Inspector, in charge Kotwali police station, had not taken reasonable care or the care expected from an ordinary prudent man in keeping and guarding the gold, that on account of the negligence of the Defendant's employees the gold was either lost or stolen away and that the Defendant was liable for the negligence of its employee . In view of its findings the trial court granted a decree for Rs. 11,430/- in favour of the Plaintiff firm against the Defendant with interest and costs. Aggrieved by the judgment and decree of the trial court, the UP Government has preferred the present appeal.