K. LAKSHMAN DAS Vs. K. KRISHNA MURTY

JUDGEMENT

(1.) THE complainant (P.W. 1) has come up in appeal against the order of acquittal of the accused -Respondent passed by the Subordinate Judge -cum -Judicial Magistrate, 1st Class, Jeypore in a case under Section 406, Indian Penal Code.

(2.) THE case against the accused -Respondent may be briefly stated as follows: During the period from 17 -11 -1973 to 17 -6 -1974 the complainant borrowed Rs. 670/ - from the accused and as security pledged one gold necklace weighing 3 tolas, one necklace billa weighing 1/4 tola, one Papidi Bindi weighing one tola and one ring weighing 1/4 tola. The complainant, P.W. 1 wanted to redeem the mortgage and asked the accused to calculate and intimate the total amount including interest payable. On 8 -1 -1975, it is alleged by the complainant, the accused have a receipt. Ext. 1, giving the particulars of money outstanding and the gold ornaments pledged. Thereafter the complainant approached the accused several times to return the ornaments and lastly on 28 -11 -1975 he sent his son, P.W. 3, with the money to the accused for redeeming the mortgage, but the accused refused to return the ornaments. Thereafter the complainant issued a registered notice office copy of which is Ext. 2 to which the accused gave a reply on 8 -12 -1975 vide Ext. 3 denying the transaction and claimed that he had purchased the gold ornaments alleged to have been pledged by the complainant. The complainant's further case is that out of the gold ornaments which had been pledged with the accused some of them had been earlier pledged with one Banker at Vizianagaram and they have been redeemed in presence of the accused with the money advanced by the accused.

(3.) IN this case it is not disputed by the accused that he has received the ornaments from the complainant and has paid Rs. 1200/ -. The question now arises for determination is whether the ornaments were sold or were pledged. It is the settled principle that more transaction or sale cannot amount to an entrustment and 'entrustment' means that the person handing over any property or on whose behalf that property is handed over to another continues to be its owner and the person handing over the property must have confidence on the person taking the property so as to create a fiduciary relationship between them. P.W. 1, the complainant, has deposed that he used to take money on loan by pledging gold ornaments of his family and in between the period from 17 -11 -1973 to 17 -6 -1974 he pledged the gold ornaments weighing about 41/2 tolas and borrowed Rs. 670/ -. According to him, he offered the money to the accused in the month of January, 1975 and wanted to release the ornaments, but the accused avoided and under pressure the accused had to give a receipt Ext. 1, acknowledging the pledge of the ornaments with him. According to him, he sent his son (P.W. 3) with money for redeeming the mortgage, but the accused did not give the ornaments and so he issued a registered notice a copy of which has been marked as Ext. 2. A reply has been given by the accused to P.W. 1 mentioning that the ornaments have been sold, not pledged. P.W. 2 who has scribed the document, Ext. 1, has stated that on the instruction of the accused giving details of the ornaments which were pledged by P.W. 1 he has scribed Ext. 1 which was signed by the accused. He has further stated that he went along with P.W. 3, the son of the complainant, on 8 -1 -1975 on which date according to the dictation of the accused Ext. 1 was scribed and the accused signed the same after it was read over and explained to him. He also stated that he went with P.W. 3 on 28 -11 -1975 to redeem the mortgage, but the accused refused to accept the money and told that no ornaments had been pledged with him. P.W. 3, the son of P.W. 1, has stated that on 8 -1 -1975 P.W. 2 scribed the document, Ext. 1. He also stated that on 28.11 -1975 he went to the accused with a total sum of Rs. 1000/ - and asked him to take the money and return the ornaments, but the accused, refused to receive the same. The learned trial Court after considering the evidence and documents came to the finding that the ornaments were actually sold to the accused; that there was no question of any pledge; and that Ext. 1 has been manufactured subsequently on a signed blank paper handed over to the complainant who is an Advocate by the accused for the purpose of a case. It may be mentioned that the filing of the civil suit has not been disputed in this case. That there was a case for recovery of Rs. 300/ - advanced on promissory note as mentioned earlier in which the accused was a party has been found by the trial Court. The learned trial Court considered all these aspects and believed the plea of the accused. In this case it is to be noted that though the complainant stated that he pledged the ornaments between 17 -11 -1973 and 17 -6 -1974 not a scrap of paper has been produced in support of such pledge, but Ext. 1 has been produced which is dated 8 -1 -1975 to show that the ornaments were pledged. The plea of the complainant is that the money was offered to the accused to redeem the mortgage, but the accused instead of handing over the ornaments gave Ext. 1 which was written by P.W. 2. It is not understood why instead of getting back the ornaments though he was ready with the money the complainant was satisfied in obtaining Ext. 1. His case is that after obtaining Ext. 1 he sent his son for redeeming the mortgage after a period of 11 months i.e. on 28 -11 -1975. But there is nothing to show that during the intervening period i.e. from 8 -1 -1975 to 28 -11 -1975 the complainant demanded return of the ornaments. P.W. 1 says that he demanded the ornaments several times, but there is no other evidence in support of the contention of P.W. 1. The learned trial Court has accepted the plea of the accused that a signed blank paper was handed over to the complainant who is an Advocate in connection with a case for recovery of Rs. 300/ - advanced on a promissory note. The learned trial Court has also disbelieved the evidence of P.W. 1 and has found that as the accused is a literate man it is not understood why Ext. 1 was not written by him but was scribed by P.W. 2 who is admittedly a friend of the son of the complainant. In the circumstances he also did not place any reliance on Ext. 1 on the ground that P.W. 1 himself has, admitted that the first portion of Ext. 1 was written as per his dictation. But P.W. 2 has stated otherwise and according to him Ext. 1 was written as per the dictation of accused. Once Ext. 1 is taken out of consideration, there is no reliable evidence that the ornaments were pledged with the accused, in the circumstances the finding of the trial Court that the ornaments were sold to the accused cannot be discarded.