Rajasthan High Court - Jaipur
Jammu Mal And Ors. vs State on 28 January, 1964
Equivalent citations: 1964CRILJ117
ORDER L.N. Chhangani, J.
1. The Sessions. Judge, Jodhpur, after herding two criminal revision petitions No. 58 of 1963 and No. 89 of 1963 has made a single reference recommending that the charms framed under Section 406 of the Indian Penal Code artist the accused petitioners Jamrmi Mal, Sita Devi and Mayadevi be quashed and the petitioners accused be ordered to be discharged. One order of reference of that Sessions Judge Is not in order and there should have been two cases for reference to this Court . They have consequently been treated as two references and shall be disposed of by one order.
2. The facts giving rise to reference may briefly be given as follows:
On 30710-1962 Kanwalram Sindhi the complainant opposite party lodged a report with the Police Division A, Jodhpur accusing three accused petitioners of an offencs under Section 406 of the Indian Penal Code. The allegations ten the first formation report ware to the following effect:
3. On 24-10-1962 at about 7 P. M. Mayadevi, one of the accused petitioners went to the shop of the complainant and asked the latter to show her necklaces and rings of new designs. She told the complainant that her mother was desirous of getting prepared a necklace and rings of some new designs and she had required some samples for her perusal. She further told the complainant that she would return the jeweler within 10-15 minutes. The complainant showed her necklaces and rings of various designs and the accused-petitioner Maya Devi locaket necklace-Worth about Rs. 650/- and two gold rings, one of the type usually put on by males and the other of the type usually put on by females, of the description given in detail in the first information report. She took away these ornaments stating that if the dsigne were approved by other, her mother would place an order for the preparation of rings and necklaces. The accuse petioner Mayadevi didt the necklace or the tangs even within half an hour. The outing tenant thereupon went to Jammumal, father of Mayadevi and Informed him of the matter. Jammu Mal took the complainant to his house and finding that his daughter was not there and had gone to Gandhi Dham, conveyed the Information to the complainant. The complainant then went to Marwar Junction in a Jaep In order to get hold of Mst. Mayadevi but did not fine her there In the-train. According to the allegations in the first Information report the complainant then intended to file a comp Wirt with the police on 26th of October, 1962, but Jamaal and some persons at his instate dissuaded him to file the first information report The matter thereafter according to the prosecution, was referred to certain Partchas and they also gave their award but the accused petitioner failed to abide the award, He consequently filed a report with the police.
4. The Police after investigation submitted a charge-sheet against all the three petitioners under Section 405 of the Indian. Penal Code before the Additional MunsiffMagistrate, Jodhpur. The Magistrate examined the seemed under Section 251.A(2) of the Criminal Procedure Code and after considering the documents referred to in section 173, Criminal Procedure Code and the statements of the accused framed charges under See. 406, Indian Penal Code against all the three accused-petitioners. : Meyadevi filed a revision application against the order of the Magistrate framing a charge against her which was register as Revision No. 89 of 1963. Jammu Mal and Sitadevi filed a joint revision which was registered as Revision No. 58 of 1963. Both these revisions were filed in the Court of the Sessions Judge Jodhpur. The Sessions Judge heard these revisions together and came to the conclusion that the matter in dispute between the parties is of civil nature. In coming to this conclusion, the Sessions Judge; relied upon certain observations made in Smt. Nirmals Bai Misal v. State, AIR 1953 Nag 301 and quoted the following observations from that judgment:
Mere retention of property without misappropriation does not constitute criminal breach of trust nor does a mere breach of contract give rise to a criminal prosecution. Thus where a person takes away ornaments on approval and promises to return them in the evening the same day her failure to do so Is not enough to sustain charge under either Section 406 or 420. Such a case is essentially of civil nature coming under Section 24 of the Sale of Goods Act.
The Magistrate in her explanation contended that the principle laid down in Smt. Nirmalabai Misal's case, AIR 1953 Nag 301 cannot be applied to the fads of the present case. According to the Magistrate, Mayadevi did not take .the ornaments from the. complainant under any transaction of purchase. On the other hand, she took the ornaments for the purpose of being shown to her mother for approval of the design and pattern and promised to return them within 10-15 minutes. She further told that her mother would talk with the complainant for placing an order for the preparation of such ornaments. On these facts, the Magistrate expressed the view that Smt. Nirmalabai Misal's case, AIR 1953 Nag 301 relied upon by the Sessions Judge is distinguishable. The Magistrate has further observed that Mayadevi did not express any intention of purchasing the jewellery In question and consequently the. doctrine embodied in Section 24(b) of the Sale of Goods Act is not at all attracted. The Magistrate further relied upon the following extracts from Appanna v. Appalaraju, as reproduced in Ratan Lai's Law of Crimes:
Where a person takes from a goldsmith a gold jewel for showing It to his wife and placing an order for a similar jewel if she approved of it but fails to return It and retains it with himself towards some debts due to him by the goldsmith, he will be guilty of an offence under Section 406, Indian Penal Code. He has utilized the jewel for a purpose, not intended and against the express agreement.
5. I have heard Mr. Guman Mal Lodha for the: complainant Kanwalram and Mr. Joshi for the accused' petitioners Jammumal and. Sitadevi. Mst. Mayadevi did not put in appearance in this Court of her own accord. Consequently, when the reference came up for hearing on 29-10-1963 It was directed that notice should be issued to Mayadevi but In spite of service of the notice issued in pursuance of the order dated 29-10-1963 she did not care to appear to support the reference.
6. Mr. Guman Mal has strongly opposed the reference and has contended that the Sessions Judge did not properly appreciate the facts and the circumstances of the case and on a wrong assumption of the facts Invoked the principle of Smt Nirmala Bai Misal's case, AIR 1953 Nag 301 and consequently, the order of reference is not correct.
7. For a proper appreciation of the principle if law which should govern the present base it is necessary to notice Section 24 of the Indian Sale of Goods Act, 1930, which reads as follows:
24. When goods are delivered to the buyer on approval or 'on sale or return' or other similar terms, the property the rain passes to the buyer:--
(a) when he signifies his approval or acceptance to the seller or does any other act adopting the transaction.
(b) if he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time and if no time has been fixed, on the expiration of a reasonable time." ' The section lays down certain criteria for determining when the property in the goods passes to the buyer in cases where goods are delivered to the buyer on approval or on sale or return. According to this section the property in the goods passes to the buyer when the buyer sign figs his approval or acceptance to the seller or does any other act adopting the transaction. It further provides in Clause (b) that even if the buyer does not signify his approval or acceptance to the seller the property In the goods may pass to the buyer if the buyer retains the goods without giving notice of rejection after the expiry of the time, if any, fixed for the return of the goods and if no such time has been fixed after the expiry of a reasonable time.
The first requirement to attract the principle of Section 24 is that there must be delivery of the goods to the buyer on approval or on sale or return. For determining whether the delivery of the gods is made on approval or on sale or return the agreement between the parties must be properly examined. In Smt. Nirmalabai Misal's case, AIR 1953 Nag 301 the accused petitioner had taken the ornaments on approval from Deshmukh salesman of one Bhogilal. On the evidence it was found that the goods were Intended to be purchased by Nirmaila Bai and that they were delivered to her on approval. It was of course found that at the time of the delivery of the goods the price of the goods had not been settled. The absence of the settlement of the price of the goods was emphasized by the prosecution In. that case for an inference that Mst. Nirmala Bai was not a buyer within the meaning of Section 24 of the Sate of Goods 'Art. The learned Judge repelled the contention and, held that in the context of Section 24 the word "buyer" is not in the sense of the definition of the "buyer'' as given, in Section 2(1).
The facts of the present case, however, bear no resemblance to the facts of Smt. Nirmala Bai Misal's case, AIR 1953 Nagpur 301. A perusal of the first information report shows that Mayadevi took ornaments from the complainant with no intention of purchasing them. She took them to show them to her mother to enable her to decide the designs of the ornaments which she would like to get prepared. The delivery of the ornaments to her was not in the capacity of a buyer. There was no question of her signifying approval or acceptance of the sale to the sells. In these facts and the circumstances, I do not sale how the principle of- Section 24(b) can be attracted in the present case. On the other Jiand, the facts of the present case resemble closely with the facts of the casa as cited In Ratan Pal's Law of Crimes and which has been relied upon by the Magistrate in her explanation. Consequently. I am quite unable to agree with the. conclusion of the Sessions Judge that the mite between the parties is of a civil nature and the reference of the Sessions Judge based on this conclusion cannot be accepted. I may also mention, that Mr.Joshi and the Assistant Government Advocate frankly conceded that they could not oppose Mr. Guman Mai on this point.
8. A controversy was, however, raised on behalf of the learned Counsel for the parties as to the liability of Jammumal and Sitadevi. Mr. Gumanmal had to concede that a charge under Section 406, Indian Penal Code is not sustainable against these two accused-petitioners. He however, proposed to argue that charges under Section 406 read with Section 109 or Section 411 of the Indian Penal Code can be framed against these persons also. Mr. Joshi, on the other hand, wanted to argue before me that on the evidence, and the materials on record, the complicity of Jammumal and Sitadevi in the transaction between the complainant and Mayadevi is not at all made out and he insisted that the entire evidence may be scrutinized by this Court for determining Her question of the complicity of these two accused-petitioners. Mr. Guma'l Mai, however, suggested that it will bet proper to leave this matter to be considered and determined by the trial Magistrate and this Court should not assume the functions of the Original court. The Assistant Government Advocate concurred with the suggestion made by the complainant's counsel, although Mr. Joshi insisted on the scrutiny of the evidence by this Court. After giving due consideration to the arguments on either side, I have arrived at the conclusion that the suggestion put forth by the learned Counsel for the complainant is reasonable and should be accepted and acted upon and that the trial Magistrate should in the first instance deal with the controversy that was proposed to be argued before me.
9. In the result, I reject the reference so far as Mayadevi's revision is concerned. The reference so far as Jammumal and Sitadevi are concerned is accepted. Charges under Section 406, Indian Penal Code, framed against them are quashed: No order however is passed for discharging them at this stage. The Magistrate shall hear the complainant and the accused-petitioners, Jammumal and Sitadevi and shall decide whether charges under any section of the Indian Penal Code can be framed against them or not.