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