HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Revision No. 459/2015
Dwarka Das Jaju Son of Shri Hari Narayan Jaju, by caste
Maheshwari, aged about 68 years, R/o House No.1048, Jadion
Ka Rasta, Johari Bazar, Jaipur. Proprietor Firm M/s Dwarka Jaju
Impex, Jaipur.
—-Petitioner
Versus
1. State Of Rajasthan through PP.
2. Rajesh Fofaliya S/o Shri Padam Chand Fofaliya, by caste
Maheshwari, R/o House No.3758, Kundigar Bhairon Ka Rasta,
Johari Bazar,Jaipur.
At present resident of 416, Cross Road Tower, A-5, Central
Spine, Vidhyadhar Nagar, Jaipur. Working Place at Barkha Caters,
B-25, Central Spine, Vidhyadhar Nagar, Jaipur.
—-Respondents
For Petitioner(s) : Mr. R.K. Daga
For Respondent(s) : Mr. V.S. Godara, PP
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI
Order
12/03/2018
Heard learned counsel for both the sides and perused
the record.
This Criminal Revision Petition has been preferred by
the complainant-petitioner to assail the order dated 26.12.2014
passed by learned Lower Appellate Court whereby the order dated
23.11.2011 passed by the trial court convicting the accused-
respondent for the offence under Section 406 IPC and sentencing
him for three years simple imprisonment with fine of Rs.3,000/-
was quashed, and set aside and the accused-respondent was
acquitted of the aforesaid offence.
On perusal of the relevant record, factual matrix of the
case is that complainant Dwarka Das handed over some sapphire
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beads to accused Rajesh Fofaliya vide receipt dated 13.10.1994
for approval. On 06.05.1995 accused Rajesh Fofaliya told the
complainant that he had handed over the sapphire beads to one
Bina Modi on approval basis. As soon as the goods or the payment
in lieu of sale of goods is received by the accused he will pay
amount to the complainant. Further, on 26.08.1996 the accused
handed over a written agreement (Ex.P-4) stating that he had sold
the sapphire beads to Bina Modi for a sum of Rs. 8 lakhs out of
which Rs. 4 lakhs have been received by him. He will pay to the
complainant the amount whatever will be now received by him.
Thereafter, neither the sapphire beads were returned nor the
amount was paid by the accused to the complainant.
FIR No.521/1997 was lodged at Police Station Manak
Chowk, Jaipur against the accused and after investigation charge-
sheet for the offence under Section 406 IPC was filed against him.
Learned trial Court framed the charge against the
accused under Section 406 IPC and after concluding trial the
accused was convicted and sentenced for the offence under
Section 406 IPC, as stated above.
Accused preferred an appeal against the judgment
dated 23.11.2011 passed by the trial Court. The Appellate Court
allowed the appeal and after setting aside the judgment of the
trial Court acquitted the accused for the offence under Section 406
IPC on the ground that there was no mens rea of the accused to
dishonestly misappropriate or convert to his own use the goods
entrusted to him. It was also stated that even if some amount
received by the accused for the goods entrusted to him was not
paid to the complainant or withheld by the accused, it comes only
within the nature of civil dispute, nor the criminal offence.
(3 of 5) [CRLR-459/2015]
Counsel for the revisionist-petitioner vehemently
argued that in view of the factual matrix of the case, the
reasoning given by learned Lower Appellate Court is contrary to
law and cannot be sustained. Counsel submits that in view of
approval memo (Ex.P-1) which was signed by the accused, it is
proved that three pockets of sapphire beads were received by him
and thus these were entrusted to him. It is further stated that the
goods were given by the accused to one Bina Modi on approval
basis. Counsel for the petitioner submits that in view of the
agreement dated 26.08.1996 (Ex.P-4) it is proved that the
accused sold the sapphire beads to Bina Modi for a sum of Rs.
eight lakhs and out of that, a sum of Rs. four lakhs were received
by him. Despite, this he did not pay even a single penny to the
complainant. Counsel contends that it clearly shows that the
criminal intention of the accused. In view of this the finding of the
learned Lower Appellate Court that there was no mens rea of the
accused is totally perverse and contrary to the established facts.
Per contra, learned counsel appearing for the
respondent has contended that the finding of the learned Lower
Appellate Court is in consonance with the oral evidence and the
documents tendered in evidence. Counsel for the respondent has
contended that the complainant has admitted in cross-
examination that the goods were handed over by the accused to
one Bina Modi on approval basis. Those goods were further sent
by Bina Modi to America. Therefore there was no criminal intent
on the part of the accused-respondent to misappropriate the
goods.
Having considered the arguments submitted by rival
sides, I am of the considered opinion that so far as the fact of
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entrustment of sapphire beads by the complainant to accused-
respondent is concerned, it is very well proved in view of the
approval memo (Ex.P-1). It is also established by the evidence
that those sapphire beads were further delivered by the accused-
respondent to one Bina Modi. The said fact is proved by the
receipt (Ex.P-14) which is also admitted by complainant PW-1 in
his cross examination. But it appears that learned Lower Appellate
Court has failed to take into consideration the agreement (Ex.P-4)
executed by accused-respondent whereby he has admitted that
the entrusted goods were sold by him for Rs. Eight lakhs to one
Bina Modi. It has also been stated that he had already received
some amount against the said transaction and Rs.4 lakhs are yet
to be received by him. Despite this admission no amount was paid
by the accused to the complainant. Learned Lower Appellate Court
has taken note of this document (Ex.P-4), but has wrongly arrived
at a conclusion that simply because the amount was not paid by
the accused to the complainant, it cannot tantamount to the
offence of criminal breach of trust.
The accused-respondent has admitted the fact that out
of the transaction money of Rs. 8 lakhs he has received part
payment from Bina Modi. He also undertook that whatever
amount thereafter will be received by him, will be paid to the
complainant. Despite that not paying any amount or value of the
goods to the complainant, clearly shows that he dishonestly
misappropriated the goods and converted it to his own use and
profit. This is a clear proof of dishonest intention on the part of the
accused-respondent. The order passed by learned Lower Appellate
Court cannot be said to be correct or proper in this aspect and
deserves to be quashed and set aside.
(5 of 5) [CRLR-459/2015]
However, looking to the provisions contained in sub-
section (3) of Section 401 Cr.P.C., the matter is remanded back to
the learned Lower Appellate Court for being heard afresh after
affording opportunity of hearing to both the sides and to
appreciate the oral as well as documentary evidence afresh. Both
the parties shall remain present before the First Appellate Court
on 04.04.2018.
In the result, this Revision Petition is allowed and the
order passed by learned Lower Appellate Court dated 22.12.2014
is quashed and set aside.
(DEEPAK MAHESHWARI),J
JKP/M-81