DFNA NATH PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application in revision under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code') is directed against the judgment dated 18-8-1992, passed in Cr. Appeal No. 133 of 1991 by Shri Aditya Sharan, Sessions Judge, Gaya, by which the learned Sessions Judge confirmed judgment dated 23-9-1991, passed by Sri U. S. Prasad, S.D.J.M., Gaya, convicting the petitioner under Section 406 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs 5,000 in default, to undergo rigorous imprisonment for six months.

(2.) The prosecution case, in short, is that for the benefit and welfare of the persons of Kasera community at Gaya as maintained as "Hai Hai Vanshi Khatriya Kanskar Gaya Manpur Nagar Society" (in short 'the Society') was formed. The complainant-opposite-party No. 2, filed a complaint petition against the present petitioner under the various sections of the Indian Penal Code in the Court of the Chief Judicial Magistrate, Gaya (Complaint Case No. 995/81) alleging therein that the petitioner was elected as the Secretary of this Society and was functioning as such since 1954. Further allegation against the petitioner is that he used to manage the entire affairs of the Society and also used to collect the funds from its members and ours. The Society purchased a house in Muhalla Katothar Talab through its President and the Secretary (the petitioner) for the purpose of a Dharamashala for this Society. Subsequently through another sale-deed another house was purchased by the Society in the name of the petitioner as the Secretary of the Society and also in the name of Jag Narain Prasad as a member of the Society for the Dharamashala. A piece of land was also purchased by the petitioner lying adjacent to this house. The rooms constructed in this Dharamashala were let out to different tenants from whom the petitioner collected the rpnt in the name of the Society in the capacity being its Secretary. However, in a partition suit of the family the petitioner included this Dharmashala building also in the list of the joint family property and got the same partitioned. Accordingly a case under Section 406 of the Indian Penal Code was instituted against him in which he was convicted by the trial court in the manner indicated above. On appeal this judgment of conviction was upheld.

(3.) In this application the petitioner has contended that the learned courts below grossly erred in deciding the title of the suit property and exceeded their jurisdiction since the question of title could only be gone into by a civil court. As a matter of fact the question of its title is pending decision in T. S. No. 6/1987 before Sub-Judge I Court, Gaya. The Society in question was established in the year 1954 with the petitioner as its, Secretary. The Society seized to function after 1960, as no meeting of the Society was called. The learned court below exceeded their jurisdiction in deciding the title of the Dharamashala building. The real fact is that the petitioner being annoyed with the members of the old Society decided to built a Dharamashala for the community out of his personal fund and accordingly, purchased the property as mentioned above through Ext 7 and Ext. 7/A. Since the Dharamashala property was purchased out of the personal fund of the petitioner, there was no question of its belonging to the Society. The judgment of conviction against the petitioner is based on wrong facts and the same could not be sustained. The learned court below committed gross errors in law as also on facts in arriving at their findings. The amei (sic) against the weight of evidence on record. The conviction of the petitioner is bad in law and is fit to be set aside. On these grounds amongst others it has been prayed that the impugned judgment and the order of conviction of the courts below be set aside and the petitioner be acquitted.