Ramdeyal Prasad vs Sayed Hasan

Varma, J.—This is a petition on behalf of one Ramdeyal Prasad Sonar who has been convicted u/s 406, Penal Code, and sentenced to two months'' rigorous imprisonment with a fine of Rs. 200 in default two weeks rigorous imprisonment. The appellate Court has upheld the conviction and sentence but has modified the amount of compensation awarded to the complainant, from Rs. 50 to Rs. 150 out of the fine, if realised. The case for the prosecution is that the complainant had pawned nine gold ornaments between July and December 1941, with the petitioner and that when he went to demand back the ornaments on 2nd October 1942, the petitioner said that he had melted away the ornaments and therefore could not return them.

A complaint was then filed on 6th October 1942 and the petitioner was summoned for 22nd October 1942. It appears that the complainant used to pawn ornaments with the petitioner from time to time. Exhibit D, dated 17th October 1939, refers to a gold bali pawned for Rs. 20; there is no time limit mentioned in it. Exhibit E, dated 19th November 1939, refers to a gold bali for Rs. 20 in which also there is no time limit mentioned. Exhibit C, dated 31st December 1940, refers to a gold jugnu for Rs. 50 in which also no time limit is mentioned. Then Ex. B is a loan of Rs. 10 taken on 30th March 1941.

It may be noted that these exhibits show that no time limit was fixed as to the redemption of the articles pawned. It also appears that the petitioner served a registered notice faux. G) on the opposite party on 29th July 1942, through a pleader, and. Ex. A is the postal acknowledgment which is admitted to be signed by the complainant. By the notice the petitioner demanded that the pawned articles must be redeemed by 15th August 1942, but this was not done. The complainant''s case is that property worth Rs. 131 was actually pawned with the petitioner, and that after the notice served on him he went to the house of the petitioner several times, until on 2nd October 1942, he was informed that the ornaments had been melted away. The complainant further alleged that the ornaments were pawned for three years and $ as the petitioner had misappropriated them before the expiry of the period, his action amounted to a breach of trust u/s 406, Penal Code.

The case for the defence was that after the notice the complainant came and took back the ornaments in August 1942, on payment of the amount due, and that only a sum of Rs. 16-7-7 on account of a dastgardan loan remained unpaid for which the accused pressed for payment, and so the false case was filed by the complainant. This defence has not been accepted by the Courts below. The Courts below have relied upon the statement f that the period fixed for the redemption of the pawned articles was three years. There is nothing in writing to show that this was the condition. Whatever documents have been produced in connexion with the pawning transactions between the parties, do not show that any date was fixed for the redemption of the articles. The lower appellate Court has. observed that it was not contended on behalf of the accused that the pledge was for a. shorter term than three years. That is true; but the documents do not support the statement that it was for three years, and what has been contended before me is that no period was fixed. It is difficult to rely upon the oral evidence that the period fixed was three years.

Now, when there is no fixed period, then the case has to be dealt with from that point of view. In such circum stances the debtor is not in default until notice is given by the creditor that he requires payment on a certain day and that day is past. The debtor is then in default to the same way as where a day for repayment is fixed in the original contract: see Note under Pigot v. Cubley (1864) 33 L.J.C.P. 134 . This view of the matter has been noted by Mulla in his commentaries u/s 176, Contract Act, on & the question of pawnee''s right where the pawnor makes default. Now, according to the notice, the date fixed was 15th August 1942, and when that date passed without redeeming the pawned articles, then u/s 176, Contract Act, the petitioner was entitled to sell the ornaments pledged by giving a reasonable notice of the sale to the pawnor.

Then the question is whether the petitioner-could dispose of the ornaments in the way he did after the expiry of the date given by the notice. In Neckram Dobay v. Bank of Bengal (1992) 19 Cal. 322 it was held that a sale by a pledgee to himself of securities pledged is void; but it does not put an end to the pledge, so as to entitle the pledgor to recover them without payment of the amount thereby secured; nor does it entitle him to damages: further, that the pledgor is bound by re-sales duly effected by the pledgee to third persons after such abortive sales to himself: but that where the pledgee has erroneously represented to the pledgor before such re-sales that the securities have been sold, they can no longer be regarded as pledged, and he becomes on such re-sales liable for the value thereof as for a conversion. So, in the present case, after the notice given to the opposite party, the liability of the petitioner is only of a civil nature. Now, the charge against the petitioner was that

on or about 30th July 1941, to 31st December 1941 at Gurbatta Sonartoli, P.S. Khaja Kalan, being entrusted with certain property, to wit, one gold jugnu, two gold balis, two gold hareh, two gold haraia and two gold surahi of Rs. 8-2-0 bhars and worth Rs. 450 he committed a criminal breach of trust in respect of the ornaments and thereby committed an offence punishable u/s 406, Penal Code.

There are no less than nine ornaments mentioned in this charge and it is not said that the entrustment was one. The evidence discloses that the entrustment was made from time to time. Section 222(2), Criminal P.C., lays down as follows:

When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 234:

Provided that the time included between the first and last of such dates shall not exceed one year

This Sub-section refers to criminal breach of trust of money. That being so, can it be said that the refusal of the petitioner to return the ornaments amounted to one breach of trust? Here although the price of the ornaments is mentioned in the charge, the breach of trust is not said to be with regard to the money but with regard to the ornaments pledged separately on different dates. I am afraid such a charge is not contemplated by Section 234 or Section 222(2), Criminal P.C. As I have already said, this is a matter for the civil Court.

I would, therefore, allow this application, set aside the conviction and sentence, acquit the petitioner and direct that the fine, if paid, be refunded.