Dwarka Das Jaju And Ors. @APPELLANT@Hash State of Rajasthan

Heard learned counsel for both the sides and perused the record.

This Criminal Revision Petition has been preferred by the complainant-petitioner to assail the order dated 26.12.2014 passed by learned Lower

Appellate Court whereby the order dated 23.11.2011 passed by the trial court convicting the accusedrespondent for the offence under Section 406

IPC and sentencing him for three years simple imprisonment with fine of Rs.3,000/was quashed, and set aside and the accused-respondent was

acquitted of the aforesaid offence.

On perusal of the relevant record, factual matrix of the case is that complainant Dwarka Das handed over some sapphire beads to accused Rajesh

Fofaliya vide receipt dated 13.10.1994 for approval. On 06.05.1995 accused Rajesh Fofaliya told the complainant that he had handed over the sapphire

beads to one Bina Modi on approval basis. As soon as the goods or the payment in lieu of sale of goods is received by the accused he will pay amount

to the complainant. Further, on 26.08.1996 the accused handed over a written agreement (Ex.P-4) stating that he had sold the sapphire beads to Bina

Modi for a sum of Rs. 8 lakhs out of which Rs. 4 lakhs have been received by him. He will pay to the complainant the amount whatever will be now

received by him. Thereafter, neither the sapphire beads were returned nor the amount was paid by the accused to the complainant.

FIR No.521/1997 was lodged at Police Station Manak Chowk, Jaipur against the accused and after investigation chargesheet for the offence under

Section 406 IPC was filed against him.

Learned trial Court framed the charge against the accused under Section 406 IPC and after concluding trial the accused was convicted and sentenced

for the offence under Section 406 IPC, as stated above.

Accused preferred an appeal against the judgment dated 23.11.2011 passed by the trial Court. The Appellate Court allowed the appeal and after

setting aside the judgment of the trial Court acquitted the accused for the offence under Section 406 IPC on the ground that there was no mens rea of

the accused to dishonestly misappropriate or convert to his own use the goods entrusted to him. It was also stated that even if some amount received

by the accused for the goods entrusted to him was not paid to the complainant or withheld by the accused, it comes only within the nature of civil

dispute, nor the criminal offence.

Counsel for the revisionist-petitioner vehemently argued that in view of the factual matrix of the case, the reasoning given by learned Lower Appellate

Court is contrary to law and cannot be sustained. Counsel submits that in view of approval memo (Ex.P-1) which was signed by the accused, it is

proved that three pockets of sapphire beads were received by him and thus these were entrusted to him. It is further stated that the goods were given

by the accused to one Bina Modi on approval basis. Counsel for the petitioner submits that in view of the agreement dated 26.08.1996 (Ex.P-4) it is

proved that the accused sold the sapphire beads to Bina Modi for a sum of Rs. eight lakhs and out of that, a sum of Rs. four lakhs were received by

him. Despite, this he did not pay even a single penny to the complainant. Counsel contends that it clearly shows that the criminal intention of the

accused. In view of this the finding of the learned Lower Appellate Court that there was no mens rea of the accused is totally perverse and contrary

to the established facts.

Per contra, learned counsel appearing for the respondent has contended that the finding of the learned Lower Appellate Court is in consonance with

the oral evidence and the documents tendered in evidence. Counsel for the respondent has contended that the complainant has admitted in

crossexamination that the goods were handed over by the accused to one Bina Modi on approval basis. Those goods were further sent by Bina Modi

to America. Therefore there was no criminal intent on the part of the accused-respondent to misappropriate the goods.

Having considered the arguments submitted by rival sides, I am of the considered opinion that so far as the fact of entrustment of sapphire beads by

the complainant to accusedrespondent is concerned, it is very well proved in view of the approval memo (Ex.P-1). It is also established by the

evidence that those sapphire beads were further delivered by the accusedrespondent to one Bina Modi. The said fact is proved by the receipt (Ex.P-

14) which is also admitted by complainant PW-1 in his cross examination. But it appears that learned Lower Appellate Court has failed to take into

consideration the agreement (Ex.P-4) executed by accused-respondent whereby he has admitted that the entrusted goods were sold by him for Rs.

Eight lakhs to one Bina Modi. It has also been stated that he had already received some amount against the said transaction and Rs.4 lakhs are yet to

be received by him. Despite this admission no amount was paid by the accused to the complainant. Learned Lower Appellate Court has taken note of

this document (Ex.P-4), but has wrongly arrived at a conclusion that simply because the amount was not paid by the accused to the complainant, it

cannot tantamount to the offence of criminal breach of trust.

The accused-respondent has admitted the fact that out of the transaction money of Rs. 8 lakhs he has received part payment from Bina Modi. He also

undertook that whatever amount thereafter will be received by him, will be paid to the complainant. Despite that not paying any amount or value of the

goods to the complainant, clearly shows that he dishonestly misappropriated the goods and converted it to his own use and profit. This is a clear proof

of dishonest intention on the part of the accused-respondent. The order passed by learned Lower Appellate Court cannot be said to be correct or

proper in this aspect and deserves to be quashed and set aside.

However, looking to the provisions contained in sub-section (3) of Section 401 Cr.P.C., the matter is remanded back to the learned Lower Appellate

Court for being heard afresh after affording opportunity of hearing to both the sides and to appreciate the oral as well as documentary evidence

afresh. Both the parties shall remain present before the First Appellate Court on 04.04.2018.

In the result, this Revision Petition is allowed and the order passed by learned Lower Appellate Court dated 22.12.2014 is quashed and set aside.