IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (U/S) No.4 of 2010 Satyendra Prasad Versus State Of Bihar & Ors ----------- 11. 29.06.2011. After having been granted Special Leave to Appeal against the judgment of acquittal dated 30.11.2009 passed by Sri Sheo Prasad Shukla, Judicial Magistrate, Ist Class, Danapur in Complaint Case No.735(C)of 2007, the present appellant who happens to be the complainant of the above noted case has presented this appeal. I have heard Sri Ram Chandra Singh, learned counsel appearing for the appellant, Sri Mrigank Mauli, learned counsel appearing for the respondents and Sri Ajay Mishra, learned counsel appearing for the State. The short fact of the case may be noticed, the complainant(P.W.2) was stating that he had a very cordial and good relationship with the respondent no.1 who approached him for borrowing some money for paying back the loan which he had taken out from the Bank of India, Khagaul Branch to the tune of seven lacks for purchasing a tractor and which was required to be paid up. It was 2 stated that the respondent approached the complainant with his wife, the other respondent Rita Singh, for receiving the amount on 16.8.2004 who was given a cheque bearing no.72299 dated 16.08.2004 and was to be drawn on Bank of India, Khagaul Branch and which was in fact credited into loan account no.7259. It is further stated that the two respondents again approached P.W.2 on 27.12.2004 at the same time, i.e., 9 A.M. with the same request of advancing some more amount to them for paying up the loan and on that day by two different cheques bearing no.99565 and 99564 an amount of Rs.4,8,934/- only as also another cheque bearing no.99564 of the value of Rs.89,806/- only was handed over to respondent no.1 which was again credited into the same loan account standing in the name of the respondents. The complainant stated that he requested for the return of the borrowed amount, but after initial promises respondent no.1 refused and then abused and also threatened the complainant of dire consequences. During the trial three witnesses 3 were examined which included P.W.2, the complainant. P.Ws.1 and 2 were supporting him by claiming that they were present on the relevant two dates at the house of the complainant so as to witnessing the handing over the cheques to respondent Dinesh Kumar Singh and the same facts were stated by the complainant(P.W.2), i.e., the two respondents approached P.W.2 on two different dates as indicated above with a request to lend money to them and, accordingly, the complainant handed over three cheques, one on one day and another on the other day, which were received by respondent Dinesh Kumar Singh for being deposited in his bank loan account. The learned trial court after considering the evidence identified certain circumstances, like, as to why the complainant should issue two cheques of two different amounts on the second day when he could have done it by issuing a single cheque. He was further doubting the case of the complainant that there was indeed the transfer of the cheques from P.W.2 and the receipt of the same by respondent Dinesh Kumar Singh or respondent Rita Singh as the 4 documentary evidence in that behalf, besides the admission of the appellant(P.W.2) in paragraphs-22 and 23 of his evidence indicates that neither of the respondents had ever received the cheques in question and had as such not credited the cheques and the amount covered by them into his loan account. The learned trial Court further found that the claim of witnesses no.1 and 3 of remaining present at the house of the appellant to witness the transfer of the cheques from the complainant to the respondent, appears contrary to the basic prosecution case and as such they could not be eye witnesses to the occurrence as there is no mention in the petition of complaint about their presence. The learned trial Judge was also reading the petition of complaint so as to rejecting the evidence of P.W.2 the complainant/appellant on his claim that he had entrusted the cheques to respondent Dinesh Kumar Singh. Sri Ram Chandra Singh, learned counsel appearing for the petitioner took me through the evidence of the witnesses and then urged to consider the circumstance 5 appearing there from that there was indeed a transfer of cheques and as such there was entrustment of a property and the evidence on refusal of paying back the money to the complainant and further evidence on threats being held out to the complainant were sufficient enough to indicate that it was a case of misappropriation. In 2010(4) PLJR 1096 Arun Kumar Sharma Vrs. State of Bihar I had the occasion of considering the scope and ambit of Section 405 IPC and the relevant discussion appears in paragraph-16 of the judgment at page-1103 which refers to four decisions of the Supreme Court as regards the definition of criminal breach of trust or misappropriation, specially that part of the offence which relates to its most important of ingredients of entrustment. I was observing that for establishing that there was an entrustment of any property, ‘it was necessary that the property should be entrusted to the person. What is implied by entrustment was that the property should have been transferred from its real owner to the accused so that he could have done in his possession’. 6 Thus, what I was attempting to point out was that there should be a physical transfer of a property and physical receipt of the same from its original owner to the person who received the property on account of its transfer. I want further to add to the above observation of mine in Arun Kumar Sharma(Supra) that the mode of entrustment might be various. By means whatsoever the entrustment is alleged by the prosecution, it must be shown that the accused had received the property in his domain consciously and had his possession, over the property consciously. If there is a lack of evidence showing the conscious receipt of the property on its transfer by any legally recognized mode, then the most important ingredient of entrustment could be lacking and in that case no charge of criminal misappropriation or breach of trust could be established. Before I apply the above principle to the facts of the present case, I must point out that it is true that there is oral evidence of P.W.2 and his witnesses also that the three cheques were handed over by P.W.2 7 to respondent Dinesh Kumar Singh, but there is documentary evidence as also the admission of P.W.2 in paragraphs-22 and 23 of his evidence which indicate that in fact the cheques were never handed over to respondent Dinesh Kumar Singh and the appellant/complainant was carrying the cheques himself to the bank for checking out the balance he was having in his respective accounts and thereafter pulling out the leaves of paying slips to himself fill in the relevant column so as to credit the cheque into the loan account of the respondents. There is no evidence in the light of the documentary evidence to indicate that there was any conscious knowledge of this mode of transfer of the property from the domain of the complainant into the domain of the respondent. In that view of the matter what I find is that the complainant was hopelessly failing in establishing the entrustment of the three cheques to the respondents. It was very strenuously argued by Sri Singh that because the cheques were credited into the loan account of the accused, this court should assume that the 8 entrustment was there and this court should further assume that the respondents Dinesh Kumar Singh and Rita Singh were consciously in know of this fact and they had sent the complainant for to credit the cheque amounts into their respective loan account. The court could not assume things unless there is evidence indicating those facts on probability. There is complete lack of evidence that the respondents were ever aware of the creation of the three cheques or had consented or requested the complainant to himself credit the cheque amounts by creating three cheques into their loan account rather the appellant/complainant has admitted as already noted, that he himself went to credit the cheques in the account of the respondents. He does not say that either of the respondents had requested him to oblige him or her by doing it. If the evidence is not available then this court is simply reluctant to raise any inference as was urged to be raised by Sri Singh through his forceful submissions. The defence is not required to explain as to why a case has been foisted 9 upon it. There could be various reasons. It could be one of the reasons that the reasons could only be known to the person who had filed a false case. The court could not draw any inference. But, it could draw one inference that the purpose for which the cheques are alleged to be credited or handed over to the respondent has not been established and in that view the learned Magistrate was perfectly justified in taking the view he had taken. If there are two views or multiple views which could be taken on facts of a particular case and if the view taken by the Magistrate appears also a probable view even then in that case, the appeal against acquittal is necessarily to be dismissed. In the result, the appeal is dismissed at the very admission stage itself. B.Kr. ( Dharnidhar Jha,J.)