THE HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE NO.1228 OF 2005 Date: 20.10.2011 Between: S.Narayanachary …..Petitioner And The State, through Sub-Inspector of Police, Central Crime Station, Tirupati, rep. by Public Prosecutor, High Court of A.P., Hyderabad. …..Respondent THE COURT MADE THE FOLLOWING: THE HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE NO.1228 OF 2005 ORDER: Sole petitioner is the accused in C.C.No.318 of 1999 before the II Additional Judicial First Class Magistrate, Tirupati. He was charged for the offences punishable under Sections 406 and 420 I.P.C. The prosecution examined four witnesses and exhibited Exs.P-1 to P-6. Having satisfied with the evidence, the learned trial judge convicted the accused for both the offences. The appeal arising there from failed. It is not relevant as to the quantum of sentence. Aggrieved by the judgment of the appellate court, the sole accused preferred the present revision. 2. Sri C.Masthan Naidu, learned counsel for the petitioner/accused contended that the delay in lodging the F.I.R. was not explained by the prosecution, that the entrustment of property was not proved and that cheating by the accused had not been made out. It is his case that the prosecution has thoroughly failed in establishing the guilt of the accused, so much so, the accused is liable to be acquitted and that the trial court and the appellate court erred in recording the conviction against the accused. 3. The case of the prosecution is: P.W.1 has been running a jewellery shop at Hindupur. In 1998, P.W.1 went to Tirupati along with his friend Mada Subramanyam of Anantapur. He stayed in Bhimas Lodge, Tirupati. He intended to sell a gold necklace embedded with garnet weighing about 54.5 grams apart from intending to sell loose garnets weighing about 72 grams. He also carried a gold ring weighing about 22 grams and a few green stones. P.W.3 has been working as a broker in the sale of gold jewellery. P.W.1 informed P.W.3 when P.W.3 approached P.W.1, about the intention of P.W.1 to sell gold ornaments. P.W.1 produced the precious stones and gold ornaments for the inspection of P.W.3. Along with his friend Mada Subramanyam and P.W.3, the accused went to room No.105, Balaji Lodge, Tirupati, where the accused was put up. P.W.1 produced the gold ornaments and precious stones once again before the accused. The accused informed P.W.3 that the prices were low at that juncture and requested P.W.1 to wait for some time for a profitable bargain. P.W.1 who was in need of money made a request to the accused to lend Rs.2,00,000/- as loan by accepting jewellery as pledge. While P.W.1, P.W.3 and Mada Subramanyam along with accused were proceeding to Chinna Bazar street, the accused slipped away along with the jewellery of P.W.1. P.W.1 and others searched in vain to trace the accused. P.W.1 came to know at that time that the accused belonged to Nellore. Tracing the whereabouts of the accused, P.W.1 went to Nellore and to the house of the accused and demanded for the return of the jewellery. The accused informed P.W.1 that he sold away the gold necklace and green stones ring to one Feroz of Bangalore for Rs.2,50,000/- and sold the garnet chain to P.Babu Reddy of Tirupati. The accused also promised to return the jewellery to P.W.1 within a short time. The promise of accused to P.W.1 was in June or July, 1997. As the accused did not abide by his word, P.W.1 lodged a complaint on 1.2.1998 to the Central Crime Station, Tirupati under Ex.P.1. P.W.4 was the then S.I. of police, C.C.S., P.S., Tirupati. On 7.2.1998, P.W.4 arrested the accused at about 4.00 p.m. at A.P.S.R.T.C. bus stand, Tirupati. The accused at that time claimed that he pledged red stoned necklace weighing 48 grams with a pawn broker at Nellore with the help of P.W.2. P.W.4 consequently contacted P.W.2 and seized Ex.P.2-pawn broker’s receipt from P.W.2. Later the charge-sheet was filed. 4. The prosecution claimed that in June 1997, P.W.1 went to Tirupati along with the jewellery. P.W.3 allegedly introduced the accused to P.W.1. P.W.3 however did not support the prosecution’s story. He claimed that he did not know anything about the case and that there was no question of his introducing the accused to P.W.1. 5. It may be recalled that Ex.P.1-complaint did not show that jewellery was entrusted to the accused. In Ex.P.1, P.W.1 claimed that the accused received the gold ornaments at Balaji Lodge, Bazar Street, Tirupati and later slipped away. I am afraid that when the accused gave jewellery to the accused for examination, it cannot be contended that jewellery was entrusted to the accused. Even in his evidence, P.W.1 did not speak about the alleged entrustment. His evidence is that the accused who took possession of the jewellery ran away with the jewellery. Assuming that the story of the prosecution is true, it would be tantamount to an offence punishable under Section 379 I.P.C and not an offence punishable under Section 406 I.P.C as there was no clear-cut entrustment. Hence, the offence under Section 406 I.P.C cannot be made out. The other offence levelled against the accused is under Section 420 I.P.C. I am afraid that to constitute the offence punishable under Section 420 I.P.C., the prosecution must show that the accused had the intention to cheat P.W.1 right from the beginning and at least by the time he was introduced to P.W.1 at Balaji Lodge. If the accused subsequently developed an idea to dupe P.W.1 and ran away with jewellery, it would amount to theft but not criminal breach of trust, or cheating. 6. Added to it, the evidence itself is not satisfactory in many respects. It is the case of the prosecution that the offence occurred on 4.1.1997 and the F.I.R under Ex.P.4 was lodged as late as on 1.2.1998. If the incident was really true, there was no need for such a delay in lodging the complaint. There was a delay of more than one year. It would appear to be the case of the prosecution that P.W.1 approached the accused and as the accused promised to return the pledged goods or pay value thereof, P.W.1 waited for a considerable time. I am afraid that when a complaint was lodged nearly one year one month after the incident, the delay was not satisfactory explained for the offence of Cheating or Criminal Breach of Trust. 7. As already pointed out, the entrustment was not proved nor was it proved that the accused was guilty of cheating within the meaning of Section 420 I.P.C. The learned counsel for the accused also pointed out that while police arrested the accused, nothing could be recovered from the accused and that the substratum of the prosecution for the entrustment and the cheating was not made out. 8. The learned counsel for the accused would appear to show that the prosecution has foisting the case against the accused and that it was evident from the fact that the prosecution was launched against the accused. He further contended that non- examination of Mada Subramanyam is fatal to the prosecution’s case. 9. The learned counsel representing the Public Prosecutor pointed out that Mada Subramanyam was no more for the prosecution to record his statement under Section 161 Cr.P.C. and to examine as a witness in the Court. Inter alia, it was contended for the Public Prosecutor that Ex.P.2 proved the case of the prosecution. Ex.P.2 merely shows a pawn broker’s receipt. It does not even show whether the jewellery belonged to the accused or P.W.1. The pledge of the jewellery by the accused under Ex.P.2 does not mean that the accused was guilty of the offence punishable under Section 406 or 420 I.P.C. 10. In Janeshwar Das V. State of U.P.[1], the Supreme Court observed that the prosecution must prove two essential facts viz., the factum of entrustment and the factum of misappropriation of the entrusted articles by the accused to constitute the offence punishable under Section 406 I.P.C. Neither of these ingredients is present in the present case. 11. In Roshan Lal Raina V. State of J. & K.[2], the Supreme Court observed that proof of entrustment of money is a condition precedent for the offence punishable under Section 406 I.P.C. As proof of entrustment is not made out barring for the oral testimony of P.W.1, I am afraid that the evidence is not sufficient to prove the guilt of the accused in any manner. 12. Regarding the delayed F.I.R, in Thulia Kali V. State of T.N.[3], the Supreme Court observed that the delay in lodging the F.I.R unsettles the advantage of the spontaneity in lodging the complaint. As already pointed out, while the offence occurred on 4.1.1997, the complaint was lodged on 1.2.1998. The delay has not been satisfactorily explained by the prosecution. The case of the prosecution suffers from the ill of delayed F.I.R. 13. Finally, where the entrustment has not been made out and where the prosecution also failed to show that the accused had the intention of cheating the deceased, the offences punishable under Sections 406 and 420 I.P.C have not been made out. The accused would be liable to be acquitted of the charges levelled against him. The trial court and the appellate court erred in appreciating the evidentiary value of the delayed F.I.R in the absence of the entrustment of jewellery by P.W.1 to the accused. Consequently, the prosecution failed to make out the case under Sections 406 and 420 I.P.C. The accused is liable to be acquitted of the above two charges. 14. For the reasons set out, this revision is allowed. The judgment of conviction recorded by the trial court and confirmed by the appellate court is set aside. The accused is found not guilty under Sections 406 and 420 I.P.C. If the accused is in jail, he shall be released forthwith if he is not required in any other case. On the other hand, if the accused is already on bail, his bail bonds stand discharged. The fine amount, if already paid by the accused, shall be refunded to him. _________________________ JUSTICE K.G.SHANKAR 20th October, 2011 TJMR THE HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE NO.1228 OF 2005 DATE: 20.10.2011 [1] AIR 1981 Supreme Court 1646 [2] AIR 1983 Supreme Court 631 [3] 1972 Criminal Law Journal 1296