Thangaswami Pillai vs State and Another

(1) The facts in controversy in this petition are briefly the following. A girl by name Rajamma was alleged to have been kidnapped by the accused

Ponnuswami Nadar in S. C. No. 73 of 1961 on the file of the court of the Assistant Sessions Judge, Tirunelveli, and then raped her. He was

prosecuted before the Assistant Sessions Judge for kidnapping the minor from lawful guardianship (S. 366 I.P.C.) and rape (Sec. 376 I.P.C.) but

he was acquitted of the latter charge and convicted and sentenced to R. I. For six months under the former charge. The accused is alleged to have

removed from the person of the girl a gold chain weighing about three sovereigns. In the course of the investigation by the police, this chain was

recovered from P.W. 4, a pawn broker of Tuticorin, with whom the accused had pledged it for about Rs. 150. The trial court ordered the return

of the jewel to the father of the girl, on the finding that the property really belonged to the girl''s parents and that the accused had no right to pledge

it having got it by unlawful means from the real owner.

In appeal, the learned Sessions Judge of Tirunelveli acquitted the accused of the charge under S. 366 I.P.C. also. When an application was made

to him by the pawn broker P.W. 4 for the return of the chain, the learned Judge did not interfere with the order of the learned Assistant Sessions

Judge directing the return of the jewel to the father of the girl. The pawn broker P.W. 4 has filed the present criminal miscellaneous petition in this

court.

(2) According to the learned counsel appearing for the petitioner herein there is nothing in the case to show that the pledge was not bona fide, and

that in the absence of such evidence, the court had to return the jewel acting under Sec. 517 Crl. P. C. to the person claiming to be entitled to

possession of it, namely, the petitioner. This application was opposed by the father of the girl and also by the learned Public Prosecutor. Learned

counsel, for the petitioner cited before me a decision of the Nagpur High Court reported in AIR 1942 82 (Nagpur) , in support of his contention.

A reference to this judgment shows that the facts were quite different. A police constable was claiming to be owner of a jewel. The accused

claimed to have obtained the jewel by legitimate means from the constable''s wife and then pledged it with a pawn broker from whom it was

recovered. The accused was tried for the offence of theft of the jewel and acquitted. While setting aside the order of the trial court for the return of

the jewel to the constable, the Nagpur High Court observed that there was nothing to show that the pawn broker acted in bad faith. It is on this

part of the observation in the judgment that the learned counsel for the petitioner has relied, and urged that in this case too there is no evidence to

show that the pawn broker (petitioner) acted in bad faith. But in the Nagpur case, there was the further circumstance that it was with the consent

and under the direction of the constable''s wife that the accused pledged the jewel with the pawn broker and further it was found that the pawn

broker and satisfied himself about the bona fides of the transaction before he accepted the pledge, namely, he had discovered that there was a

prior attempt by the accused to pledge the jewel with a lady, and thereafter he had resorted to the pawn broker, because that lady''s terms were

onerous. But in the present case there is nothing to show that the pawn broker made any enquiry before accepting the pledge from the accused,

apparently a stranger. The pawn broker lives in Tuticorin. The accused as well as the complainant are neighbours and belong to a different village

called Thuvarampadi.

(3) A pawn broker who takes a valuable gold jewel on pledge from a pledger who is a stranger from a different village, without making any

enquiry about the antecedents of the pledger, has necessarily to face the consequence of the property pledged turning out to be stolen property or,

as in this case, obtained by unlawful means by seizing it from a young woman when she was helpless and unprotected. It may be conceded, as

claimed by the petitioner''s learned counsel, that the lower court in this case did not enter into any elaborate enquiry about the bona fides of the

pawn broker. But it seems to be implicit in the circumstances of this case, that the pawn broker was taking a risk in accepting a gold jewel from a

person coming from a different village, and who was a stranger to him. Learned counsel for the second respondent, the father of the girl, has cited

the decision of Horwill J. in Subbaramma Iyer v. Damodaram, AIR 1937 Mad 313 where the facts are analogous. Horwill J. observed:-

................ in this criminal case the question was of course never raised or decided whether P.W. 5, the petitioner, took the jewel bona fide or

mala fide, and neither the lower courts could possibly have given a finding on that point. The Joint Magistrate had therefore to decide whether the

jewel should be returned to the admitted owner or to a person whose legal right was in doubt, even if he had acted bona fide. Under such

circumstances, I am not prepared to say that the order of the Joint Magistrate was wrong"",

and in conclusion the learned Judge also observed:-

The Magistrate is given a wide discretion, and unless it is clear that he exercised it on some wrong principle and that he returned the property to

somebody else obviously not entitled to have it, this court in revision will be unwilling to interfere.

(4) It is not the province of the Criminal Court to enter into any elaborate consideration of the relative rights of the pledger and pledgee under S.

178 and other allied provisions of the Contract Act. In such cases, where it is clear, as in this case, that the pledger had no title at all to pledge the

goods and on the other hand the property had been obtained by him by unlawful means, and where the pawn broker''s conduct shows that he did

not take any precaution to fortify his position by necessary enquiries about the antecedents of the pledger, where he got the jewel from and so on,

it will be a proper exercise of the discretion on the part of the criminal court, in directing the return of the jewel to the person who had been

deprived of his possession by the accused by unlawful means.

(5) The Criminal Miscellaneous petition is dismissed.

(6) Petition dismissed.