Hit Narain Mahton vs Bed Narain Mistry

Meredith, J.—This rule has been issued on the application of one Hit Narain Mahton, who was convicted u/s 406, Penal Code, and sentenced to rigorous imprisonment for three months and to pay a fine of Rs. 200, with rigorous imprisonment for one month more in default, and whose appeal has been dismissed by the learned Sessions Judge of Gaya.

The facts that have been found by the Courts below are that on 11th November 1941, the complainant executed a handnote in favour of the petitioner for Rs. 106-4-0. The same day the complainant also pawned with the petitioner silver ornaments for Rs. 18. The petitioner evaded settlement of the account and return of the handnote and the ornaments, so the complainant took punches to his place. The panchas settled the total dues at Rs. 155. The complainant paid this amount in the presence of the panchas. On the pretext of bringing the document from inside the house, the petitioner went inside and would not come out. Subsequently on enquiry from the inmates of the house it was learnt that he had gone out the backway and gone off.

The defence was a refusal to admit that the money had been paid, and, in the alter, native, that if it had been received, no criminal offence had been committed.

The first question is, for what sort of misappropriation the petitioner was charged and convicted. The learned Judge is not clear upon that point, but a reference to the charge shows -that it related to the misappropriation of Rs. 155 entrusted to him and not to the misappropriation of the handnote and ornaments.

The question then is, whether any offence u/s 406 can be said to have been committed by Hit Narain in accepting this sum of Rs. 155 and retaining it for himself. I am of opinion that on those facts there was no breach of trust with regard to this money, simply because there was no entrustment. The money was not given to Hit Narain in trust but in discharge of a debt; and having been paid in discharge of a debt, it became Hit Narain''s property as soon as he received it.

A precisely similar question was considered by a Division Bench of the Calcutta High Court in Gulam Hossain v. Emperor AIR 1919 Cal 155. In that case the complainant owed money to the accused on a mortgage bond. He went to their house and paid the amount settled in full satisfaction. The accused went inside their house with the bond and the money saying that they would return the bond, but they did not come back that day and afterwards denied the receipt of the money. On these facts their Lordships said:

It seems clear that there was no trust which would bring the case u/s 406, Penal Code. Payment was made to the petitioners of a debt, directly that sum was paid the debt was paid off, and the money so paid they were entitled to retain. What they failed to do was to carry out the condition on which the money was paid, namely to return the bond. The learned Magistrate in his explanation suggests that the matter might constitute an offence u/s 403, Penal Code, but there, again, he is met with the objection that there was no dishonest misappropriation of this money or wrongful conversion to the use of the petitioners. The money was paid in satisfaction or part satisfaction of a debt. Their offence really consists in their subsequently denying the fact of payment. That, however, could not be taken into account in the present trial.

In the present case there is not even an unqualified denial of the receipt of the money. The petitioner refrained from specifically denying receipt. He merely said:

This petitioner does not accept the version but even assuming for argument''s sake that the allegations were correct this petitioner begs to submit that it was purely a civil liability and no conviction in a criminal case could be obtained on the said allegation.

It is clear that the conviction in respect of breach of trust with regard to the sum of Rs. 155 cannot be sustained.

It is, however, argued for the opposite party that there was misappropriation and conversion to his own use of the ornaments. But here the first difficulty is that the petitioner was not charged with that. Secondly, it cannot be said that the petitioner has converted the ornaments to his own use, because he does not deny that the ornaments were pledged with him, and, on his own case, he is still holding them in trust against the time when what he claims is paid off. The learned advocate for the opposite party has relied upon a Single Bench decision in Abinas Chandra Kumar v. Dhani Suksh (35) 62 CriLJ 487 a but the case is clearly distinguishable. In that case the accused subsequently denied that the ornaments had been pledged with him at all or that he had made any loan, and consequently there could be a finding that he had intended to and had converted the property to his own use. Moreover, in that case there was at the time of payment no dispute at all as to its amount, and it could not, therefore, be said that the payment had been received under protest or in part satisfaction, and the ornaments retained because of a further claim. Thus, this case is not in point.

We have considered also whether the petitioner could properly have been charged with cheating and whether we should order a retrial upon such a charge. Here, however, the difficulty is that the learned Judge has himself held that

we do not know whether the petitioner had any dishonest intention at the time when he received the money.

Obviously we do not. It may be that he took the money with a dishonest intention, saying he would return the ornaments but not intending to; but the inference is equally possible that he took the money and subsequently repented and decided to hold out for more. There will then be no dishonest-intention in the taking of the money. Or it may be that the petitioner took the amount under protest, in part payment, because it is clear that he had nothing to do with the calling of the panchas, and it is not very clear whether he ever agreed to accept Rs. 155 in full satisfaction. The complainant in his evidence said that he himself collected and took the panchas there and he never said that the accused had agreed to the matter being referred to arbitration and to abide by the result. The head panch (P.W. 5), it is true, said that when they fixed the amount at Rs. 155 Hit Narain agreed to accept it. But there again, he may have done so under protest, and also, as I have said, he might have accepted it in good faith and subsequently repented of the bargain.

In the circumstances, it does not appear that a charge of cheating could be sustained.

I would make the rule absolute, set aside the conviction and sentence and acquit the petitioner.

Agarwala, J.

I agree.