High Court · 2025
Legal Reasoning
Cri.Appeal.509.2005-1-IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 509 OF 2005Karbhari S/o. Saluba Pawar, Age : 54 years, Occu. : Stamp Vendor, R/o. Khadki, Tq. Kopargaon,Dist. Ahmednagar… Appellant (Orig. Complainant)Versus1.The State of Maharashtra 2.Sanjay S/o. Changdeo Pote, Age : Major, Occu. : Cushion Work,R/o. Laxminagar, Datta Cushion Works, Dharangaon Road, Kopargaon.3.Aslam S/o. Gafur Shaikh}} Appeal dismissed as against4.Rajendra S/o. Murlidhar Zaware}Resp. Nos.3 to 5 as per courts}dated 22.08.20055Kalidas Dwarkanath Jadhav}… Respondents…..Mr. A. S. Gandhi, Advocate for Appellant.Mrs. A. S. Mantri, APP for Respondent No.1 – State.Mr. S. S. Daga, Advocate for Respondent No.2.…..CORAM :ABHAY S. WAGHWASE, J.RESERVED ON :12 SEPTEMBER 2025PRONOUNCED ON :23 SEPTEMBER 2025 JUDGMENT : 1.Original complainant Karbhari, who initiated criminalproceedings by filling private complaint for commission of offencepunishable under sections 379, 406 read with section 34 of Indian Cri.Appeal.509.2005-2-Penal Code, is hereby taking exception to the judgment and orderdated 21.06.2005, whereby the present respondents were acquittedfrom above charge. FACTS GIVING RISE TO THE PROSECUTION CASE ARE AS UNDER2.PW1 Karbhari, who claimed to be owner of auto-rickshawbearing no. M.W.A.7701, lodged complaint against respondentsaccused for taking away his auto-rickshaw without his consent andthereby committed criminal breach of trust. It is his case that, on22.07.1992, he took his auto-rickshaw to accused no.1, whoundertakes the work of cushion work and accordingly parked it infront of shop of accused no.1. After 2 to 3 days, he claims that whenhe went to bring back the auto-rickshaw, he did not receive it. Whenhe asked about the whereabouts of the said rickshaw, it is his casethat Ramesh Sontakke, Ananda Dawange and Suresh Sonawaneinformed about seeing accused nos. 2 to 4 taking away the auto-rickshaw. Thus, having been deprived of his auto-rickshaw, he lodgedcomplaint culminated into investigation and finally filing of charge-sheet. On explanation of charge to the accused, the same was deniedand as such trial was undertaken. After appreciating the oral and documentary evidence,learned J.M.F.C. Kopargaon was pleased to acquit the accused from
Legal Reasoning
Cri.Appeal.509.2005-3-the charge under section 406 of IPC read with section 34 of IndianPenal Code. Hence instant appeal. SUBMISSIONS3.Learned counsel for the appellant questioning the abovejudgment and order submitted that apart from evidence ofcomplainant, there is evidence of eye witnesses, who had seenaccused persons taking away auto-rickshaw owned by him i.e.without his consent. He further pointed out that on due verificationof complaint, learned trial court was pleased to issue process.However, by erroneously appreciating available evidence, thelearned trial court acquitted the accused. He pointed out that, therewas entrustment of rickshaw with accused and witnesses had seenall accused persons taking away the rickshaw and not returned it,and therefore, required essential ingredients for attracting thecharge was very much available in the evidence i.e. evidence ofcomplainant himself as well as PW2 an independent witnesses. Theirtestimonies have remained unshaken. He pointed out that, even inthe impugned judgment, learned trial court has itself observedtestimony of complainant being corroborated by PW2 and PW3 and assuch it was improper to accord acquittal. Thus, according to him, asacquittal was unwarranted and being contrary to the evidence onrecord, learned counsel urges for setting aside the impugnedjudgment and award by allowing the appeal. Cri.Appeal.509.2005-4-4.Learned APP also supported the above contentions.5.Learned counsel for respondent No.2 would point out thatcomplainant had miserably failed to establish the charges. He pointedout that, there is no distinct, cogent and reliable evidence suggestingownership of auto-rickshaw or its entrustment with accused.Answers given by the witnesses in cross examination has renderedcase of prosecution doubtful, as according to learned counsel, auto-rickshaw was itself found standing in the premises of police station.Complainant himself failed to collect the same. It is pointed out thatnecessary ingredients for offence punishable under section 406 ofIPC being patently missing, learned counsel emphasizes that no faultcan be found in the order of acquittal and so he finally prays todismiss the appeal.6.On complete re-appreciation of both, oral substantiveevidence as well as documentary evidence, it is clearly emergingthat, though complainant came with the case that he took his auto-rickshaw to accused no.1 for cushion work, in his examination-in-chief itself he has stated that he went and parked his rickshaw infront of shop of accused no.1 for cushion work. No documentaryevidence whatsoever is placed on record regarding entrustment of Cri.Appeal.509.2005-5-auto-rickshaw. In his cross examination, he has admitted that he didnot obtain receipt from accused no.1 after alleged handing over ofrickshaw on 22.07.1992 so as to accept his case of entrustment ofproperty.7.PW2 Ramesh in his evidence at Exh.106 claims that hehad been to shop of one Sanjay Pote for delivering scrap and thattime he allegedly saw accused persons asking said Sanjay Poteregarding the ownership of rickshaw and he being informed that itbelonged to complainant. However, in cross examination heanswered that he does not have personal knowledge as to whenrickshaw was parked in the shop of Sanjay Pote. 8.PW3 in his evidence at Exh.112 claims to have seenaccused nos.2 to 4 taking away rickshaw from the shop of accusedno.1. He claims that after 2 to 3 days, he met complainant and claimsto have told about seeing accused no.2 Aslam along with the saidrickshaw. It has also come in his evidence and not disputed thatrickshaw of complainant was found to be parked in the police station,but there is no document or panchanama in this direction. 9.What section 406 of IPC requires is, firstly, entrustmentof property, and secondly, said property to be converted for personal Cri.Appeal.509.2005-6-use without consent of owner. Though case of complainant is that hetook his auto-rickshaw to accused no.1, there is nothing to indicateactual entrustment with accused no.1. He testified about going toshop of accused no.1 and parking auto-rickshaw in front of it. Merelybecause he has learnt from witnesses about accused persons takingaway the rickshaw itself would not attract the charge, for the simplereason that, auto-rickshaw was found to be parked in the compoundof police station. Under such circumstances, necessary ingredientsfor attracting section 406 of IPC regarding both entrustment and itsfurther conversion for personal use, are patently missing.10.In cross examination, there are suggestions aboutcomplainant and accused to be of rival political group. There isadmission to this extent by both complainant as well as PW2. Hence,this court does not find availability of necessary ingredients ofsection 406 of IPC which calls upon prosecution to establish firstlyentrustment and secondly commission of criminal breach of trust byconverting the property for their personal use. Though charge undersection 406 of IPC has been framed by invoking section 34 of IPC,patently common intention has not been established. For abovereasons, prosecution case fails.11.Perused the judgment under challenged. It is noticed that Cri.Appeal.509.2005-7-the available evidence has been appreciated in the light of legalrequirements and findings are supported by sound reasons. Noperversity or illegality is brought to the notice of this court so as tointerfere in the instant appeal. No case being made out forinterference, I proceed to pass the following order : ORDERThe criminal appeal stands dismissed. (ABHAY S. WAGHWASE, J.) Tandale