The State of M.P. vs Radhey Shyam

Tarun Kumar Kaushal, J.—This appeal has been preferred by the State against judgment dated 20.02.1996 passed by JMFC, Berasiya, District Bhopal in Criminal Case No. 385/94 acquitting the respondent of charge u/s 406 of IPC.

Facts of the case, in short, are that Hajari (PW1) pledged a silver kardhauna of 450 gm. with respondent and obtained Rs.300/loan from him with a promise to repay Rs.330/after 3 months and will receive the kardhauna back. As promised, money was repaid back to the respondent but kardhauna was not given back to PW1. Instead PW1 was taken by the respondent to Bhopal saying that he had sold kardhauna. After repeated visits kardhauna was not received back by PW1, on 14.09.90 he lodged FIR ExP1 at police station Berasiya against the respondent.

During investigation vide Ex.P3 kardhauna was recovered from the possession of Babulal (PW4). Aforesaid kardhauna was identified by PW1 in Panchayat in Test Identification Parade on 23.10.90. Completing investigation Police Berasiya submitted a chargesheet u/s 406 of IPC against respondent. In support of the charge prosecution recorded statements of Hajari (PW1), Imrat Singh (PW2), Madho Singh (PW3), Babulal (PW4), Prahlad Singh (PW5), Mangolal (PW6), Heeralal, Head Constable (PW7) and Ghanshyam (PW8).

Appreciating aforesaid evidence trial court observing the evidence of PW1 contradictory and insufficient and in view of the fact that kardhauna seized was not the same, which was pledged, acquitted the respondent of the charge.

This appeal has been preferred by the State on the grounds that trial court has not appreciated the evidence of PW1 in right perspective who is a wholly reliable witness. On the other hand learned counsel for the respondent supported the finding of acquittal recorded by the trial court.

On careful perusal of the evidence of Hajari (PW1), it remains no longer disputed that he is not a wholly reliable witness because initially he stated that kardhauna was produced in the court was pledged by him. Later, in cross examination he admitted that kardhauna was not his kardhauna rather it is a substitute seized by police from Babulal (PW4).

Otherwise also in view of the evidence of Madho Singh (PW3) with whom Hajari (PW1) went to the shop of respondent to pledge kardhauna, it appears to be a civil dispute. Crux of the litigation is whether amount has been repaid to the respondent or not. Appropriate step can be taken for recovery of kardhauna on trial side. In so far as ingredients of offence of criminal breach of trust as required u/s 405 of IPC is concerned, it has not been proved beyond doubt that kardhauna of Hajari (PW1) was dishonestly converted by the respondent of his own. Accordingly, I see no perversity or illegality in so far as finding of acquittal given by the trial court. Trial court has rightly appreciated the evidence.

Appeal is dismissed.