MAHADEO KOSHTI Vs. NARAYAN

JUDGEMENT

(1.) THE present applicant filed a complaint in the Court of the City Magistrate against the five non-applicants on the ground that they had conducted a sawda shop for dealing in American Futures in Nagpur City, that he had entrusted them with certain moneys with a view to sawda dealings and although he claimed to have fulfilled the conditions necessary for the successful termination of the deal, they had failed to pay him the amount due and were guilty of offences under Sections 420 and 406, Indian Penal Code.

(2.) THE City Magistrate dismissed the complaint on the ground that the acts alleged against the non-applicants only amounted to a breach of a wagering contract and did not constitute any criminal offence. The Sessions Judge, on an application for revision made to him, remarked that the complainant could have no remedy against the non-applicants in a civil Court and was also of opinion that no criminal offence had been committed.

(3.) THE trust contemplated by Sections 405 and 406 need not be in furtherance of a lawful object, The present case seems to me absolutely analogous to that of a stake-holder who misappropriates to his use the stakes deposited with him for a wager. It would, in my opinion, be no defence in a criminal prosecution, for an offence under Section 406, Indian Penal Code, for such a stake holder to say that there was no legal contract to pay the stakes over to the winner. There was, in any event, a legal contract and obligation legally enforceable on the part of the stake-holder to repay the deposit to the person who had made the wager. If, therefore, instead of paying over the money to the winner, the stake-holder misappropriates it or converts it to his own use, I am unable to see why the fact that there was no legal contract to pay the stake-money over to the winner, should absolve the stake-holder from criminal liability if he misappropirates the amount himself. A case which presents some analogy to the present one is that of Chinna Karuppa Muppan, in re 1 Weir 463. The complainant there left his flock of sheep in possession of the accused in pursuance of an absolutely illegal purpose, viz., to prevent them for being taken in execution of a decree against him. The accused misappropriated some of the sheep to his own use, Collins, C. J., and Parker, J., held that though the trust created with regard to the sheep was for an illegal purpose, that was no sufficient answer to a charge under Section 406, Indian Penal Code. I am, therefore, of opinion that, on the allegations made in the present case, the lower Courts were wrong in summarily dismissing the complaint in the way they did, and also, on the allegations put forward in the complaint, there seems to me a case for enquiry as regards cheating.