iminal Appeal No 67 of 1968
Appeal by special leave from the judgment and order dated January 18 1968 of the Patna High Court in Criminal Appeal No 407 of 1966
208 section C Agarwala and V J Francis for the appellant
B P Jha for the respondent
The Judgment of the Court was delivered by Grover J
This is an appeal by special leave from a judgment of the Patna High Court upholding the conviction of the appellant under section 411 of the Indian Penal Code for which a sentence of three years  rigorous imprisonment was imposed
According to the case of the prosecution a Sen Raleigh cycle was stolen from the possession of Sheo Charan Lal
He reported the matter to the Police on March 25 1965
It appears that on May 11 1965 the Station House Officer Incharge Giridih Police Station ADN Sinha learnt while he was moving about in the town on the Moharram day that a thief was running away with a Sycle
The alleged thief was apprehended and the cycle in his possession was taken into custody
The name of that person was Mohnd
Siddique
He made a statement to the police officer which led him to search the premises of the appellant
As a result of the search seven cycles including the Sen Raleigh cycle belonging to Sheo Charan Lal which was stolen on March 24 1965 and three other cycles were recovered from the house of the appellant Mohd Siddique and the appellant were tried the former under section 379 and the latter under section 411 of the Indian Penal Code
Siddique was convicted and sentenced but he did not file any appeal
It was not disputed before the High Court that the Sen Raleigh
cycle was recovered along with nine other cycles as a result of the search of the house of the appellant by ADN Sinha the SHO on May 11 1965
It was also proved that that cycle was stolen
The explanation given by the appellant was that three out of the 10 cycles belonged to the members of his family and the other seven had been pledged with him as he carried on the business of a pawn broker
The Sen Raleigh cycle had been pledged by Siddique with him and that is how the said cycle was recovered from his possession
PW I Jayantilal and PW 2 Shyam Narain Singh deposed that the appellant as well as his brothers and other members of his family lived in the same house
It was further stated by them that the appellant and his brothers worked as contractors and they also took things on pawn and advanced money
According to Shyam Narain Singh he had seen ornaments and utensils being taken on pledge by the appellant and members of his family although he had not seen him taking any cycle on pledge
The appellant also produced a document Exh
DA which was scribed by one Baldev Pandit and had been attested by some witnesses
In this document it was stand that Rs 80 bad been received by Siddique by way of advance from the appellant and 209 that the cycle in question had been pledged with the latter
Neither the scribe nor Mahabir Sao or Nanden who were the attesting witnesses gave evidence
I Ramjit Sao a neighbour deposed that the document Exh
A had been scribed in his presence and that Rs 80 had been paid to Siddique
Siddique had pawned the cycle by way of security for the advance
The courts below found that this document had been manufactured for the purpose
of the case implying thereby that it was not genuine
The appellant does not appear to have produced any evidence about the pledging of the other cycles which were found in his possession nor did he point to any other article apart from the cycles which had been pledged with him in the course of his business when the search was made of his house by the SHO AD N Sinha
The High Court apart from other facts took the following matters into consideration while upholding the conviction of the appellant 1 Although two defence witnesses had been examined by the appellant there was nothing to show that he had taken the ordinary precaution of making proper enquiries about the ownership of the cycle before advancing any loan on its security
2 It was significant that the document Exh
A was quite silent as to the source from where Siddique had got that cycle and  when he had acquired it
3 These facts showed that the transaction could not have been a bona fide transaction by the person carrying on bona fide business of advancing loans on pledge
4 The Investigating Officer had deposed to the fact that after the recovery of 10 cycles he made a verification from the records of the Police station and found that besides the Sen Raleigh cycle cases had been instituted earlier with respect to four more cycles out of the recovered cycles
5 Even if it be assumed that this evidence was not admissible according to the charge as framed with regard to two cycles the same had been recovered from the place of the appellant which had been admitted by Siddique as having been stolen by him
6 There could be no doubt that at least two of the 10 cycles recovered from the possession of the appellant were stolen properties
7 Considering the above aspect as well as the fact that the conduct of the appellant in connection with the taking possession of the cycle in question from Siddique was not at all consistent with the conduct of a man of ordinary prudence it was not possible to accept the appellant s contention that he had taken possession of the cycle without knowledge or belief that it was stolen
210 Learned counsel for the appellant has subjected the above reasons given by the High Court for sustaining the conviction to criticism on several grounds
It has been firstly pointed out that admittedly the trial was confined to the alleged theft of the SenRaleigh cycle and its having been received by the appellant in circumstances which made him guilty of an offence under section 411 of the Indian Penal Code the prosecution relating to the other cycles should not have been taken into account
It has next been urged that the whole approach with regard to the appellant not having made bona fide enquiry from Siddique before accepting the Sen Raleigh cycle in pledge was unsustainable in law
We may in this connection refer to a judgment of Lord Widgery CJ in Atwal vs Massey1 in which it was laid down that in order to establish an offence under section 22 of the English Theft Act 1968 which is similar in terms to section 411 of the Indian Penal Code it was not sufficient to show that the goods had been received in circumstances which would have put a reasonable man on enquiry the question was a subjective one was the appellant aware of the theft or did he believe the goods to be stolen or did he suspecting the goods to be stolen deliberately shut his eyes to the circumstances  The next submission on behalf of the appel lant is that the correct ambit and scope of the presumption which can be drawn under section 114 illustration a of the Evidence Act was not considered by the High Court or the courts below
Section 114 provides that the court may presume the exist ence of any fact which it thinks likely to have happened regard being had to the common course of natural events human conduct and public and private business in their relation to facts of the particular case
Illustration a is as follows  that a person who is in possession of stolen property soon after the theft is either the thief or has received the goods knowing that to be stolen unless he can account for his possession
In Otto George Gfeller vs The King  2  the law as enunciated in Rex vs Abramovitch3  was accepted as representing the correct statement on the subject of the presumption to be drawn in such cases
That was in the following terms  Upon the prosecution establishing that the accused were in possession of goods recently stolen they may in the absence of any explanation by the accused of the way in which the goods came into their possession which might reasonably be true find them guilty but that if an explanation were given which the jury think might reasonably be true and which is consistent with innocence although they were not convinced of its truth the 1 3 1914 84 LJ KB 391
2 211 prisoners were entitled to be acquitted inasmuch as the prosecution would have failed to discharge the duty cast upon it of satisfying the jury beyond reasonable doubt of the guilt of the accused
It has been urged before us that the appellant had given an explanation of how he came into possession of the Sen Raleigh cycle his explanation being that it had been pledged with him by Siddique in the ordinary course of business which he was carrying on and that explanation had been sought to be supported by evidence
The two prosecution witnesses had testified that the appellant and other members of his family were carrying on the business of pawn brokers apart from other avocations which they were following
It is emphasised that according to the above statement of law even if the courts were not convinced of the truth of the explanation but if the same could be held to be reasonably true the prosecution must be considered to have failed to discharge the duty cast upon it of satisfying the court beyond reasonable doubt of the guilt of the appellant
The question that the courts therefore had to decide was whether the explanation given by the appellant in view of the admission that the Sen Raleigh cycle was stolen property could be held to fall within the above rule namely whether it might reasonably be true even though the courts were not convinced of its truth
Since the courts below and the High Court have taken some irrelevant and inadmissible matters into consideration we have examined with care the explanation given by the appellant in the light of the entire facts and we are unable to come to the conclusion that the explanation could be regarded such as might reasonably be true
The first and the most important fact is that the appellant had sought to prove the document ext
DA to support the transaction of pledge
That document bad rightly been found not to have been proved
Apart from the Sen Raleigh cycle several other cycles were found in the possession of the appellant which he claimed to have been pledged with him
No articles of any other kind were either pointed out or claimed to have been pledged with the appellant or with members of his family which would normally have been done if the version given by him that the business of pawn brokers was being carried on had any truth in it
Pawn brokers are ordinarily and in normal course expected to maintain some books of account or some documents which contain the particulars of the transactions relating to pledge
There was no indication or suggestion by the appellant that he was maintaining any such books of account or documents
The above circumstances in our opinion were sufficient to show that the court would be justified in holding that the explanation given by the appellant could not reasonably be true
A 212 presumption therefore could immediately be drawn in accordance with section 114 Illustration a of the Evidence Act
There was hardly any evidence worth the name by which it could be said that the presumption had been rebutted by the appellant
In the result the conviction and the sentence of the appellant are maintained and the appeal is dismissed
He was released on bail he shall surrender to the bailbonds
GC Appeal dismissed


Summary:
A Sen Raleigh cycle which was stolen by one S was recovered from the house of the appellant along with several other cycles
The appellant s explanation was that some of the cycles belonged to members of his family and the others were pledged with him in the course of his business Ext
DA was produced by the appellant to show that the Sen Raleigh cycle in question had been pledged with him by section The Trial Court did not accept the document as genuine rejected his explanation as to how the said cycle came into his possession and convicted him under section 411 IPC
The conviction was upheld by the High Court Dismissing the appeal this Court HELD The appellant had sought to prove the document ext
DA to support the transaction of pledge
That document had rightly been found not to have been proved
Apart from the Sen Raleigh cycle several other cycles were found in the possession of the appellant which he claimed to have been pledged with him
No article of any other kind was either pointed out or claimed to have been pledged with the appellant or with members of his family which would normally have been done if the version given by him that the business of pawn brokers was being carried on had any truth in it
Pawn brokers are ordinarily and in normal course expected to maintain some books of account or some documents which contain the particulars of the transactions relating to pledge
There was no indication or suggestion by the appellant that he was maintaining any such books of account or documents
211F The above circumstances were sufficient to show that the court would be justified in holding that the explanation given by the appellant could not reasonably be true
A presumption therefore could immediately be drawn in accordance with section 114
Illustration a of the Evidence Act
There was hardly any evidence worth the name by which it could be said that the presumption had been rebutted by the appellant
211H The appeal must accordingly be dismissed
Atwal vs Massay  Otto George Gfeller V The King and Rex vs Abramoitch referred to