PRITHWIRAJ BHADANI Vs. STATE

JUDGEMENT

(1.) THIS second appeal is at the instance of one of the two plaintiffs in a suit for restoration of certain properties, in the alternative, for recovery of price thereof.

(2.) THE facts, on which the suit is premised and not in dispute, are that the plaintiff No, 1, who is the appellant before us is the proprietor of a shop at Mathabhanga. The plaintiff No. 2, the pro forma respondent herein is his son and also constituted agent holding a power of attorney on behalf of the plaintiff No. 1. The plaintiff No. 1 had another son by the name of Malchand Bhadani who was murdered in the night of Dec. 18, 1956. In connection with the case started over the said murder, the Investigating Officer seized certain articles and money, detailed in the schedule of the plaint from the plaintiff No. 2 and granted a receipt therefor. The articles, so seized, were exhibited before the Sessions Judge, Cooch Behar during the trial of the persons accused of the said murder. The trial ended on Sept. 21, 1957 with capital punishment of two of the accused persons. For all intents and purposes the criminal proceeding terminated on Sept. 19, 1958 when their appeal before the Supreme Court failed. The plaintiff No. 2 on behalf of the plaintiff No. 1, the owner thereafter filed an application before the Trial Court on April 27, 1960 for getting back the money and articles seized from him and the learned Sessions Judge on June 1, 1960 passed an order directing their return. Having failed to get back the articles and the money in spite of the order of the Court, the plaintiffs served a notice under S. of the civil P.C. upon the Collector of Cooch Behar but any response. The plantiffs prayed for restoration money and articles seized, in the alternative for recovery of a sum of Rs. 5,625/ - in lieu thereof.

(3.) THE learned trial Court, on consideration of the various documents exhibited at the instance of the de - fendant and the oral evidence adduced found that Ananta Mazumdar misappropriated the cash and the gold seized that negligence of some superior Police Officers in supervision of the Malkhana provided all opportunities to Sri Mazumdar to misappropriate the goods. The only other question that fell for consideration before the Trial Court was whether the defendant was liable to make good the loss caused to the plaintiffs by one of its such act was done by him outside the employees. The finding of the Trial Court on this point was that the misappropriation committed by said Sri Mazumdar was outside the scope of his employment and relying on a number different High Courts, held, that the State was not in any not way liable for loss caused to the plaintiff s by one of its officers in absence of any proof of positive negligence on the State. On the above findings, the Trial Court held that the plaintiff was not entitled to get equivalent cash and price of gold seized which were misappropriated by Mazumdar but he was entitled to get of back all the other articles as mentioned in the schedule of the plaint, which were admittedly lying in the malkhana. Accordingly, the trial Court decreed the suit in part in favour of the plaintiff No. 2, from whom the articles were seized, and directed the defendant to return the articles described in items Nos. 3 to 13 of the plaint schedule in the alternative, to pay Rs. 548/ - to the plaintiff No. 2.