Full Judgment Text
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PETITIONER:
SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS, WEST
Vs.
RESPONDENT:
BIRENDRA CHANDRA CHAKRAVARTY
DATE OF JUDGMENT27/11/1973
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
CHANDRACHUD, Y.V.
CITATION:
1974 AIR 290 1974 SCR (2) 481
1974 SCC (3) 661
ACT:
Indian Penal Code s. 401-Respondent was acting as trustee
and agent of the complainant--He transferred certain
properties without knowledge of the real owner--Whether
criminally liable in view of innumerable transactions
between the parties.
HEADNOTE:
The respondent was convicted and sentenced by the Additional
Chief Presidency Magistrate, as trustee and agent of one
Saila Bala Devi, for criminal breach of trust for selling 3
bighas of land to the trustees of one Ashoka Trust and for
misappropriating the profits thereof, thereby, committing an
offence under s. 401 of the I.P.C. On an appeal by the
respondent, the High Court held that the dispute between the
parties was essentially of a civil nature. It did not
decide the question whether a criminal breach of trust could
be committed in respect of immovable property entrusted to
an agent for management on a certain understanding. The
real dispute was whether the respondent, who was the
ostensible owner of some immovable property, was the real
owner or a benamidar holding on behalf of the real owner.
The facts are that the complainant with her family shifted
to Calcutta from East Bengal after partition. The
complainant and her family came under the influence of the
respondent, who was very much trusted by the lady and her
family. Under the advice of the respondent, the complainant
transferred her house in East Bengal and paid Rs. 37,000/-
to one A, but the properties to be given by A in return were
actually transferred to the Respondent as a Benamidar. When
the respondent executed the deed of relinquishment, the
disputed properties (Bansdroni properties) were dishonestly
left out and not transferred. The respondent, was alleged
to have committed criminal breach of trust, in
misappropriating the income of the disputed properties.
Dismissing the appeal,
HELD : (i) In view of the long and intimate relations
between the respondent and the family of the complainant and
the numerous transactions between them. it is difficult to
decide whether the respondent is criminally liable. The
respondent had claimed that he had actually bought the
disputed properties himself for the use of his disciples and
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that there were now trust properties -- the properties stood
transferred in the name of Ashoka Trust when the F.I.R. was
made,-dedicated for charitable purposes.
(ii)It is difficult to decide whether the claim of the
respondent is honest. It is not possible to fasten criminal
liability, beyond reasonable doubt, upon the respondent
before the right and the title to the disputed properties is
properly established by the complainant by means of a civil
suit. Therefore, the civil nature of the dispute be first
decided before any question of criminal liability by
satisfactorily adjudicated upon.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No, 145 of
1970.
Appeal by special leave from the judgment and order dated
the 11th September, 1969 of the High Court at Calcutta in
Criminal Appeal No. 160/65.
D.N. Mukherjee, A. K. Guha, G. S. Chatterjee and P. K.
Gupta, for the appellant.
Hardayal Hardy, L. K. Das Gupta, B. R. G. K. Achar and Suku-
mar Ghosh, for the respondent.
482
The Judgment of the Court was delivered by
BEG, J.-The respondent, Birendra Chandra Chakravarty, was
tried by the Additional Chief Presidency Magistrate,
Calcutta, and convicted and sentenced to undergo one year’s
rigorous imprisonment and to pay a fine of Rs. 2,000/- and,
in default of payment of fine, to a further rigorous
imprisonment for six months, on the following charge held to
have been established against him:
"That you the said Birendra Chandra
Chakraborty, alias Balak Brahmachari on or
about the 29th day of February, 1958, at
Calcutta, as trustee and agent of one Shrimati
Saila Bala Dasi, from or on 26-11-1949
committed criminal breach of trust as such
trustee and agent in respect of 3 Bighas of
land out of about 5 Bighas of land situated in
Village Bansdroni in the district of 24
Parganas by selling the said three bighas of
land to (1).Birendra Lal Sarkar, (2) Birendra
Nath Bose, and (3) Mahindra Lal Chakraborty,
trustees of the Ashoke Trust, and
misappropriated the profits thereof, and
thereby you the said Birendra Chandra
Chakraborty, alias Balak Brahmachari, com-
mitted an offence punishable under section 409
of the Indian Penal Code and within my
cognizance".
On an appeal by the convict respondent, the High Court of
Calcutta by an exceptionally long judgment of more than a
100 pages, in the course of which a number of registered
documents, their correct interpretation, and their effects
were discussed, held that the dispute between the parties
was essentially of a civil nature. It did not decide the
question whether a criminal breach of trust could be com-
mitted in respect of immovable property entrusted to an
agent for management on a certain understanding. The
gravamen of the charge against the respondent was that he
had, in violation of this understanding, set up his own
title to one of the several properties, which should have
been relinquished or transferred to the complainant Smt.
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Saila Bala Devi just as other properties, mentioned in the
schedule to a registered deed of derelinquisbment (Ex. 8)
dated 24-2-62, were actually transferred or relinquished in
favour of Smt. Saila Bala Devi after acknowledging her
right and title to them, although their ostensible owner,
like that of the property which was said to have been
dishonestly retained and not relinquished, was the
respondent himself. In other words, the real dispute was
whether an ostensible owner of some immovable property was
really its owner or merely a benamidar holding it on behalf
of the real owner.
The rather pathetic story of Smt. Saila Bala Devi was : She
is the widow of Aswini Kumar Das, a retired Chief Engineer
of Dacca Municipality, who died sometime in 1934, leaving
her with seven daughters and four sons. The Engineer. whose
monthly salary was Rs. 1,000/-, had left a two-storeyed
house at Dacca, a Dispensary at Nawabpur, and 200 bighas of
land in Gangarampur, in addition to a deposit of Rs.
10,000/-, a life insurance policy of Rs. 22,000/ and
provident fund of Rs. 25,000/-. Smt. Saila Bala Devi had
also saved
483
about Rs. 25,000/- and had gold ornaments. She and her
family, however, came under the evil spell of the
respondent, Birendra Chandra Chakravarty, alias Balak
Brahmachari, sometime about 1944. She, was so impressed by
the young Brahmachari, aged about 23 years, that she looked
upon him as an avatar or incarnation of God. She and her
family as well as the Brahmachari (also called "Gurudev" by
them) shifted to Calcutta after the partition of the
country. Under the advice of the respondent, Smt. Saila
Bala Devi transferred her house in East Bengal and paid Rs.
37,000,/- to one Abdul Rahman, introduced to her by the
respondent, but the properties to be given by Abdul Rahman
in return for this consideration were actually transferred
to the respondent as a benamidar (the reason for this is
not clear). When the respondent executed the deed of
relinquishment (Ex. 8) dated 24-2-62, she remained under the
impression that her right to all the properties of which the
respondent was benamidar was being recognised, but what may
be called "Banasdroni properties" (which stood in the name
of Ashoke Trust at the time of the First Information Report,
dated 26-11-63) were dishonestly left out and not
relinquished. She made demands upon the respondent to make
the relinquishment or transfer after she discovered, through
one of her sons, the fraud perpetrated upon her. The
respondent had terrorized her by threats of letting loose
goondas upon her. The police was also under the influence
of the respondent who had, by wrongly not relinquishing or
transferring Bansdroni properties to her and misappro-
priating their income, committed a criminal breach of trust.
The F.I.R. dated 26-11-63 was, initially, a letter sent to
Shri Profulla Chandra Sen, the Chief Minister of West
Bengal, which was forwarded on to the Police.
After going through the relevant parts of the judgment of
the High Court and the evidence of Smt. Saila Bala Devi, we
find that the respondent was so closely and so long
associated with the family of Smt. Saila Bala Devi and so
implicitly trusted by the lady and there were so many
transactions between him and the lady concerned that it is
difficult to make out, in this case, the exact nature of the
position of respondent with regard to the Bansdroni
properties. The disillusionment of Smt. Saila Bala Devi
and her family with the respondent actually came after the
respondent had some quarrels with the sons of Smt. Saila
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Bala Devi. One of the reasons for these. quarrels appears
to have been the refusal of a daughter of Smt. Saila Bala
Devi to abandon the company of the respondent with whom she
was said to be living.
it may be that Smt. Saila Bala Devi was sadly mistaken in
reposing so complete a trust and faith in the supposed
goodness and piety of the respondent who may have cheated
her. In view of the long and intimate relations between the
respondent and the family of Smt. Saila Bala Devi and the
numerous transactions between them, it is difficult to
determine the extent to which Smt. Saila Bala Devi was
duped or persuaded by misrepresentations to part with her
rights in properties. She had a remedy by civil suit, for
the declaration of her
484
rights in and return of Bansdroni properties, still open to
her. At the’ time of the First Information Report the
disputed Bansdroni properties stood transferred to the
"Ashoke Trust" which would be a necessary party in such a
dispute.
The respondent had claimed that he had actually bought Bans-
droni properties himself for the use of his indigent
disciples and that these were now trust properties dedicated
for charitable purposes. We are unable to decide, on the
evidence on record, whether the claim of the respondent is
honest or a mere camouflage for cheating and roguery. We,
however, think that it is not possible to fasten criminal
liability, beyond reasonable doubt, upon the respondent
before the right and the title to the Bansdroni properties
is properly established by Smt, Saila Bala Devi by means of
a civil suit. We think that the High Court was correct in
coming to the conclusion, having regard to all the facts and
circumstances of the case, that a dispute of an essentially
civil nature had to be decided between Smt. Saila Bala Devi
and the respondent before any question of criminal liability
could be satisfactorily adjudicated upon.
On the view we have taken on the merits of the case we think
it unnecessary to consider C.M.P. Nos. 1413 of 1973 for
acceptance of additional evidence filed on behalf of
respondent and C. M. P. No. 1414 of 1973 also filed by the
respondent for the revocation of Special Leave to Appeal.
These applications are hereby dismissed.
The result is that we dismiss this appeal by special leave
against the judgment and order of acquittal by the High
Court.
S.C.
Appeal dismissed
485