Ram Byas Rai @ Byas Rai vs Emperor

Jwala Prasad, J.—This is an application against the conviction of the petitioner u/s 403 of the Indian Penal Code. The petitioner has been sentenced to an imprisonment of 25 days with a fine of Rs. 20.

The facts and circumstances if lating to this case are shortly as follows:

A sale-deed was executed in favour of ore Gulzar Rai on July the 26th, 19.7, wLere-by some land of the vendor was conveyed to the petitioner. That land was in the possession of the opposite party Inder Rai by virtue of a mortgage deed executed for Rs. 165. Under the terms of the sale-deed the petitioner was entitled to redeem the said mortgage in favour of the opposite party. Gulzar Rai, the executant of the sale-deed, did not register it, and, therefore, the petitioner had to apply to the Sub-Registrar of Koilwar for having a compulsory registration of the deed. The Sub Registrar refused to register tie sale-deed. The petitioner, therefore, appealed to the District Sub-Registrar of Arrah. In support of his case the petitioner filed before the District Sub Registrar certain documents amongst which were the said rehan-deed in favour of Inder Rai and a bahi belonging to him. We are concerned only with these documents in this case. The petitions whereby the documents were filed before the District Sub-Registrar are Exhibits 5 and 6, dated the 5th September and 13th October 1917 respectively. Among other witnesses Inder Rai, the opposite party, was also examined as a witness on behalf of the petitioner in the registration appeal. He is witness No. 7, and was examined on the 5th September. The District Sub-Registrar allowed the appeal of the petitioner and compulsorily registered the sale-deed. Shortly after on the 24th November a petition was filed before the Sub Registrar for the return of the documents. This petition purports to be on behalf of both the petitioner and Inder Rai, the opposite party, through a Mukhtear named Bhagwat Prasad. On the 27th November 1917 the papers were returned to the petitioner in. the presence of the said Mukhtear. Four months after,, on the 1st Marob, the opposite party, Inder Rai, made an application for the return of the documents. He was then told fey the clerk in the registration department that the documents were already returned to the petitioner. , A slip was also written by the clerk to the petitioner requiring him to see him at once. This slip is Exhibit 12. On the 6th March, Inder Rai, the opposite party,, made another application before the Sub-Registrar asking for the return of the documents. In this application he has referred to the previous application made by him: this is Exhibit 9. The Sub-Registrar then called both the parties. The-parties then took time to settle their differences out of Court. This was not done. The opposite party again appeared before the Sub-Registrar complaining to him that the papers which were taken away by the petitioner were not returned to him. The Sub-Registrar then passed an order that the opposite party might take any step he liked in the criminal Court and that the Registrar could not help him. Inder Rai, therefore, instituted proceedings out of which this matter has arisen. The Courts below have convioted the petitioner holding that he did not return the documents to the complainant, Inder Rai, but retained them with a view to misappropriate the money due on the mortgage bond by setting up a redemption of the mortgage and that he thereby committed a criminal misappropriation u/s 403 of the Indian Penal Code.

The Courts below have held that the petitioner took back the documents from the registration department but did not return them to the opposite party. There can, of course, be no doubt that the parties were both on friendly terms prior to the filing of the documents before the Sub-Registrar and also that Inder Rai gave evidence before the Registrar not long before the documents were returned to the petitioner. Gulzar Rai, the vendor of the petitioner, after the execution of the sale-deed resiled from it and would not register the deed and hence the proceedings in the registration department arose. The money due under the mortgage bond to Inder Rai, the opposite party, was not paid and could not be paid because the time for the payment, namely, the end of Jeth stipulated for in the mortgage bond had not arrived. This was admitted by the petitioner. Inder Rai was ready to give every assistance that lay in his power in order to support the case of the petitioner, so much so that although the money was not paid to him he handed over the documents without any demur and the .documents were accordingly filed on behalf of the petitioner. He further supported the petitioner''s case bj giving his evidence on the 5th September 1917, The registration case being over, one would naturally expect that the parties would apply for the return of the documents soon after the order of the Registrar was passed. The petition, therefore, of the 24th. November, which purports to have been filed on behalf of both the parties, is only natural. It is also clear that both the parties joined in the petition for the return of the documents. Some of the documents filed belonged only to the petitioner and others belonged to. Inder Rai, the opposite party. This is supported by the evidence of Bhagwat Prasad Mukhtear, who says that both of them appeared before him and joined in the application filed by him for the return of the documents. This is a very important fact which bears upon the motive in this oase, but unfortunately the Courts below have not considered it and perhaps their attention was not drawn to it. As'' the documents were filed only on behalf of the petitioner, the registration department returned the documents to him in the presence of Bhagwat Prasad. The Courts below have made much of the fact that the registration department clerk ought not to have returned the documents to Ram Byas Rai, the petitioner, but ought to have returned them to both the parties, as the application for the return of the documents was made by both of them. I do not appreciate this, I would rather think that the documents could not be returned to Inder Rai as they were not filed on his behalf. No Court or office can take the responsibility of returning documents to a person on whose behalf they are not filed simply because the documents might- belong to that person. For the purpose of returning a document the Court recognises only the person on whose behalf the document is filed. The fact remains that the petition of the 24th November was filed on behalf of both the parties, and Inder Rai, therefore, knew that the documents were going to be returned. The petitioner, when he appeared before the Sub-Registrar, stoutly denied having retained the documents with him at that time and boldly asserted that the documents were made over, soon after they were taken back from the registration department, to the opposite party. It appears to me that there is a good deal of substance in the plea of the accused, inasmuch as if the documents were not returned to the opposite party for four months he would surely have come to Court and repeated his grievance long before the 1st of March, the date on which he, made his first appearance before the registration department and complained in respect of the documents. This throws a great suspicion on the complainant''s case. The present course adopted by the complainant, opposite party, four months after the documents were returned to the petitioner, is probably due to some unfortunate dispute which has since cropped up between the parties. There is an indication of this in the report of the Sub-Registrar to the Sub-Divisional Officer, in which he says that there was something else in the hearts of both the parties and that he, therefore, advised them to have their grievances settled by arbitration. They took time to do it but could not make up their differences. The evidence in the case is too meagre for a sure and certain finding that the petitioner did not make over the documents to the opposite party. Even if it be admitted that the documents were not returned, there is nothing to show that there was a criminal motive on the part of the petitioner. The Courts below have said that the object of the petitioner was to misappropriate the mortgage money and to set up the redemption of the mortgage. The opposite party is in possession of the land mortgaged to him. The petitioner''s case has all along been that no money was paid to the opposite party and that the mortgage has not been redeemed. This was his case when he applied for the compulsory registration of the sale-deed and has been so throughout the proceedings in the registration department. Even when he appeared before the District Sub-Registrar four months after the documents were returned to him, he said that the mortgage of Inder Rai was not redeemed. This was his case in the trying Court and as well as in this Court (vide the sworn petition of motion). There is nothing to show that there has been any attempt thereto on his part to deprive Inder Rai of his money or to use the documents for his own purposes. In the absence of any overt act on his part, no inference of dishonest motive can be imputed to him simply by the retention of the documents, Queen v. Abdool 10 W.R. Cr. 23A. The chief element for a conviction u/s 403 is the dishonest misappropriation of the property or conversion to one''s own use, Crown v, Muhammada 28 P.L.R. 1906 : 3 Cri. L.J. 299, Bhuban Mohan Banerjee v. Tansuk Roy Seraogi 6 C.W.N. 34. The petitioner''s avowedly honest statement all through that the mortgage has not been redeemed has not been at all considered by the Courts below in imputing a dishonest motive to him.

I, therefore, set aside the conviction and sentence of the petitioner and direct that he be discharged from his bail bond. The fine, if paid, should be refunded.