EMPEROR Vs. SILAS MOSES

JUDGEMENT

(1.) This is an appeal from a conviction and sentence passed under Section 406 of the Indian Penal Code on a charge of criminal breach of trust in respect of a motor car of the value of about Rs. 7246.

(2.) When the appeal was admitted, my learned brother, Mr. Justice Seaman, took occasion to express certain doubts which, upon the arguments and the materials then before the Court, occurred to him as to the propriety of this conviction, and I desire to say in deference to that expression of doubt that full weight has been given to the circumstances to which the learned Judge made allusion. But we have now had the advantage of a full argument on both sides together with a study of various exhibits and documents which were not before the Bench when this appeal was admitted. In the light cast upon the conviction by these fuller materials I am of opinion that the conviction is good and must be sustained.

(3.) The appellant was the hirer of a Charron Motor Car from the Company, and the case for the prosecution is that he dishonestly disposed of that car in violation of the terms of his legal contract with the Company, so that he was guilty of the offence of criminal breach of trust as defined in Section 405 of the Indian Penal Code. Mr. Godinho, on behalf of the appellant, made some attempt to suggest that the real transaction between the appellant and the Company was an out-and-out sale and that the hire-purchase agreement, which is Exh. A in the case, was merely extorted, or cajoled out of the appellant by way of being held in terrorem over him. After some little discussion, however, Mr. Godinho, as I understood him, was fain to concede that no such line of defence was fairly open to him, but that his client must be regarded as bound by the written contract which he accepted and executed, that is, the contract of hire-purchase embodied in Exh. A. Now that being so, Clause 5 of the contract provided that until the hirer, that is, the appellant, exercised his option to purchase in the manner prescribed and by the date prescribed, which would be the 11th October 1914, the car was to remain the absolute property of the Company, and the clause continues that "the hirer shall not, during the hiring, assign, underlet or part with the possession of the same in any way whatsoever, nor shall have any right or interest in the same other than that of the hirer under this agreement". Those, then, were the rights secured by the contract to the appellant; yet, on the 1st of April 1914 and on the 15th of November 1914 and on the 9th of March 1915, he mortgages the car to three other persons for the respective sums of Rs. 500, Rs. 300 and Rs. 1500. In describing all these transfers as mortgages, I am putting the case most favourably to the appellant. For it is very susceptible of argument that the last transaction of March 1915 was an out-and-out sale. This, however, there is no need to press against the appellant, and I am content to regard all the transactions as being mortgages. The argument that they cannot amount to mortgages but must be regarded as mere pledges or hypothecations seems to me inconsistent with the record, and I am satisfied that the transactions were mortgages of this motor car and that such mortgages are allowed in India is shown by the decision in the case of Damodar v. Atmaram (1905) 8 Bom. L.R. 344. Having regard to the general terms of the contract and especially to the terms of Clause 5 which I have quoted, it is, I think, certain that the mortgaging of this car by the appellant was, in the language of Section 405 of the Indian Penal Code, a violation of the legal contract made by the appellant in regard to the hire of this car.