RAMESHCHANDRA PARMANAND PATHAK Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by the accused who has been convicted and sentenced under Section 124 of the Bombay Police Act, 1951 of the offence of being found in possession of 14 gold biscuits and a cash amount of Rs. 10,000/ -, which according to the prosecution, there was reason to believe to be stolen property, or property "fraudulently obtained", within the terms of that section. The accused in this case was arrested on 9.9.1967 in connection with the offence of having cheated one Manekchand. It is the prosecution case that shortly after the arrest of the accused, the accused made a statement and led the police party and the panchas to the house of one Champabai and, from a trunk in a room there, he produced a packet containing 14 gold biscuits with foreign markings and a cash amount of Rs. 10,000/ - After investigation was completed the accused was charged and was convicted and sentenced by the learned Presidency Magistrate, 18th Court, Girgaum, Bombay and it is from that conviction and sentence that he has preferred the present appeal.

(2.) THE observations made by me, in my judgement delivered yesterday in Criminal Appeal No. 642 of 1969 (Bom) in regard to the legal position under Section 124 of the Bombay Police Act, 1951 applies to the present case also. Though the charge mentions that there was reason to believe that the property in question was stolen property or property "fraudulently obtained", Mr. Gambhirwala has frankly taken up the position that the prosecution can only urge that it wag property "fraudulently obtained" and has not addressed me at all on the question as to whether there was reason to believe it to be stolen property. As stated by me, in ray judgement, in Criminal Appeal No. 642 of 1969 (Bom) and also in the judgement delivered by me today in Criminal Appeal No. 643 of 1969 (Bom) in order to lead to the inference that there is reason to believe that the property in question had been "fraudulently obtained", it must be shown that there must be an element of deceit on the part of the accused brought out by the proved facts and circumstances of the case. Merely because some facts and circumstances lead to the inference that the accused had illegally possessed that property, it cannot follow that the same had been "fraudulently obtained" by the accused. The circumstance that the accused in the present case had kept the amount of Rs. 10,000/ - with a lady who was a stranger, with whom according to him, he merely boarded, no doubt shows that the accused bad not legally possessed that amount.I am, however, unable to infer from that circumstance alone that there is reason to believe that he had obtained it by practising deceit on somebody. Curiously enough, the accused has himself led evidence, which if believed, might have led to the inference that the accused had attempted to play a fraud on witness Sarimal Kapurchand, for whom, according to the defence evidence, the said sum of Rs. 10,000/ - was intended. Mr. Gambhirwala himself has however urged that I should not accept the defence evidence and the learned Magistrate has rightly disbelieved the same. Under those circumstances, no inference whatsoever can be drawn in favour of the prosecution from the defence evidence, as far as tha said sum of Rs. 10,000/ - is concerned.

(3.) AS far as the 14 gold biscuits are concerned, the accused has in his statement denied that any gold biscuits were recovered from the house of Charopabai and, though the prosecution has examined the Police Officer and the panch to prove the same, Champabai has, not only, not been examined as a witness in the trial Court, but the evidence of Sub -Inspector Dabholkar shows that he has not even recorded her statement in the course of the investigation of the case. Champabai was, in my opinion, a very material witness who could have deposed to facts to which none else could depose in the present case namely, whether the accused had brought gold biscuits to her place, for what purpose he had left them there, in what manner he had placed them in the trunk, and so on. Unlike the position taken by the accused in regard to the sum of Rs. 10,000/ -, which ho had admitted to have been recovered from the house of Champabai, the accused has flatly denied that 14 gold biscuits were recovered from that place. Under those circumstances, in the absence of any material to show why Champabai was not examined in this case, I draw an adverse inference against the prosecution under Section 114 of the Evidence Act by reason of the fact that she was not called as a witness. I accordingly draw the inference that if Champabai had been called as witness for the prosecution, she would have given evidence unfavourable to the prosecution, at any rate, as far as the 14 gold biscuits were concerned. Weighting that adverse inference against the evidence of the police Officer and the panch, I hold that the prosecution has not proved the recovery of the 14 gold biscuits at the instance of the accused.