IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 Crl.Rev.Pet.No. 2161 of 2009() ------------------------------ CRA.306/2008 of ADDL. SESSIONS COURT (FAST TRACK-II), ALAPPUZHA CC.371/2005 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ------------------------------------------------- GANGADHARAN, AGED 68, S/O.MADHAVAN, PRASAD SADANAM, KUNTHIRICKAL, THALAVADY, KUTTANAD. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.M.SUNILKUMAR SRI.PRASANTH M.P RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE ---------------------------------- STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, SESSIONS COURT, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2161 of 2009 -------------------------------------- Dated this the 22nd day of July, 2009. ORDER Faced with a sentence of imprisonment till rising of the court and a direction for payment of compensation of Rs.50,000/- with default sentence of imprisonment for three months, petitioner has come up in revision challenging concurrent finding entered by the courts below and the consequent conviction under Section 406 of the Indian Penal Code (for short, “the Code”). 2. Case of prosecution is thus: Son of petitioner married PW1 on 10.9.2001. He was then working at Chennai. According to the prosecution, at the time of marriage PW1 was given 272 grams of gold ornaments. A few days after the marriage on 30.10.2001 when PW1 and her husband were going to Chennai where the husband was working, she entrusted the gold ornaments weighing 236 grams to the petitioner, her father-in-law. He had requested PW1 to give the gold ornaments to him so that he could pledge the same and raise money for agricultural purposes. On 10.3.2002 husband of PW1 met with an accident and died. A few days later PW1 returned to the matrimonial home. She requested petitioner to return the gold ornaments to her. As the prosecution goes, petitioner somehow evaded that. Ultimately PW1 had to withdraw to her paternal home and thereafter she preferred a complaint to the local SNDP branch committee. There was a mediation talk involving the office bearers of Crl.R.P.No.2161/2009 2 that committee in which PW1, her father, petitioner also took part. In the discussion it was resolved that petitioner would return the 236 grams of gold ornaments to PW1 before 15.9.2003. Petitioner however did not do that. PW1 preferred a complaint before learned magistrate alleging offence punishable under Section 406 of the Code. That complaint was forwarded to the police for investigation. Police after investigation submitted final report alleging commission of the said offence. Prosecution examined PWs 1 to 5 and proved Exts.P1 to P6. Ext.D1 was marked for the petitioner. From that evidence learned magistrate found that a case of criminal breach of trust is made out, convicted and sentenced the petitioner to undergo rigorous imprisonment for one year and to pay fine of Rs.10,000/- with default sentence of imprisonment for one month. In appeal conviction was confirmed but sentence was modified as first above stated. Petitioner is still aggrieved and has come up in revision. It is contended by learned counsel that there is no evidence of entrustment of gold ornaments with the petitioner and that at any rate failure to comply with agreement allegedly reached is only a breach of an agreement which may give rise to civil liability but did not amount to criminal breach of trust punishable under Section 406 of the Code. 3. PW1, defacto complainant given evidence regarding alleged entrustment of the gold ornaments and petitioner evading her demand to return the same even in violation of the decision taken in the mediation talk. PWs 2 Crl.R.P.No.2161/2009 3 and 3 are witnesses who claimed to have seen PW1 entrusting the gold ornaments to the petitioner at the eve of her going to Chennai along with her husband on 30.10.2001. PW4 is the secretary of the SNDP Branch committee. He claimed to have attended the marriage of PW1. He also proved Ext.P2 series and Ext.P3. PW5 is the officer who investigated the case. 4. To prove criminal breach of trust, it must be shown that petitioner was entrusted with the property and he dishonestly misappropriated the same or converted the same to his own use in violation of a direction regarding the mode in which the trust was to be discharged. Learned Additional Sessions Judge has observed that even if evidence of PWs 2 and 3 is not considered, there is evidence to show that 236 grams of gold ornaments were entrusted to the petitioner on 30.10.2001. That finding is based on the evidence of PW1 which gets corroboration from Ext.P2 series and Ext.P3. Ext.P2 is the attested photocopy of relevant page of the marriage register maintained at the SNDP branch committee. Ext.P2(a) is the relevant entry which states that at the time of marriage of PW1 she had 272 grams of gold ornaments. According to PW4, the register is signed among others by petitioner also. Ext.P3 is the photocopy of the relevant page of the minutes book of the said committee. It is seen from Ext.P3 that on 14.5.2003 there was a discussion involving PW1, her father, petitioner and others in which it was agreed by petitioner that he would give 236 grams of gold ornaments to PW1 and settle the issue before 15.9.2003. As per Crl.R.P.No.2161/2009 4 the evidence of PW4 that minutes was signed among others by petitioner also. 5. So far as Ext.P2(a) is concerned, it is pointed out by learned counsel that the entry regarding the ornaments is a subsequent insertion. No doubt that entry is seen in a different handwriting. PW4 has stated that the entry was made by one Chandrasekharan, a committee member. Ext.P3 shows that the fact that 272 grams of gold ornaments being given to PW1 is admitted by petitioner also. In the light of Ext.P3 there is no reason to discard Ext.P2(a) and evidence of PW4. I do not forget that it was suggested to PW4 that false entries were made in the marriage register as well as minutes book but that remained only as a suggestion to PW4. Going through the records I do not find reason to disbelieve the evidence of PW4 and Ext.P2 series and Ext.P3. These documents corroborated the version of PW1 that she was given 272 grams of gold ornaments at the time of marriage out of which 236 grams were entrusted with the petitioner on 30.10.2001. According to PW1, petitioner wanted to raise a loan by pledging those gold ornaments. It is also her case that petitioner was to return the gold ornaments to her. PW1 has given evidence that she demanded petitioner to return the gold ornaments but he evaded it somehow or other. Thus, there is evidence to show that petitioner was entrusted with 236 grams of gold ornaments. There is no case that the gold ornaments were given to the petitioner for ever. It was entrusted to petitioner to be returned to PW1 when she demanded it. That created a trust. Petitioner has not returned the Crl.R.P.No.2161/2009 5 ornaments as per direction of its owner and instead has used the same for his purposes. The question whether act of petitioner misappropriating the ornaments was dishonest, depended on the facts of the case. He has even disputed undertaking he made, not to say that he violated it. These circumstances also indicate that he dishonestly misappropriated the ornaments which amounted to criminal breach of trust as defined in Section 405 of the Code punishable under Section 406 of that Code. I find no reason to interfere with the conviction of the petitioner. 6. So far as sentence as modified by the appellate court or the direction for payment of compensation is concerned, that is not challenged before me and I find no reason to interfere with that as well, at the instance of petitioner. Resultantly this revision fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks