GHANSHYAM vs. STATE OF RAJASTHAN

NON-REPORTABLE

CRIMINAL APPEAL NO.2085 OF 2013 (Arising out of SLP(Crl.) No. 8101 of 2009) Ghanshyam .... Appellant Vs. State of Rajasthan .... Respondent J U D G M E N T JUDGMENT V.Gopala Gowda J. Leave granted. 2. This appeal is filed by the appellant/accused questioning the correctness of the judgment and Page 1 2 Crl.A.@SLP(Crl.) No. 8101 of 2009 final Order dated 04.02.2009 passed by the High Court of Judicature at Rajasthan, Jaipur in S.B.

the matter back to the trial court for fresh decision in the light of the statements of the witnesses and also the material and evidence available on record, urging various facts and legal contentions in justification of his claim. 3. Necessary relevant facts are stated hereunder to appreciate the case of the appellant/accused and also to find out whether he is entitled for the relief as prayed in this appeal. JUDGMENT At the time of filing of this appeal, there were two respondents, respondent no.1 Ram Dayal – the complainant and respondent no.2 – the State of Rajasthan. Name of the complainant-Respondent no.1 th has been deleted vide this Court’s order dated 13 Page 2 3 Crl.A.@SLP(Crl.) No. 8101 of 2009 September, 2010 as the appellant could not take steps of service upon him.

gave three gold chains weighing 6.5 tola to the accused-appellant for making a new design chain after melting the old chains. But according to the complainant, neither the three old chains nor a new gold chain were returned to him. On 2.11.1994, the complainant sent a telegram asking the accused appellant to return the gold chains. He further sent a legal notice through his advocate to the appellant on 6.5.1995 making allegation of taking JUDGMENT the gold chains and not returning the same. All the allegations were denied by the appellant. The complainant then filed a complaint under Section 156(3) of the Criminal Procedure Code (in short ‘CrPC’) for an offence under Section 406 of the Indian Penal Code. Statements of witnesses were Page 3 4 Crl.A.@SLP(Crl.) No. 8101 of 2009 taken under Section 161, CrPC by the Additional Chief Judicial Magistrate, Gangapur City. The

Section 190 of CrPC before the Additional Metropolitan Magistrate bringing to his notice the commission of the alleged offence. Investigation was conducted by the SHO, PS Gangapur City, District Sawai Madhopur and report was submitted by him who concluded that the FIR was false and the case was without merit. The complainant filed a protest petition against the said report. The Additional Chief Judicial Magistrate, while considering the protest petition, confirmed the JUDGMENT negative report. The complainant challenged the said Order of the Additional Chief Judicial Magistrate before the Additional Sessions Judge by filing a protest petition. The Court of Additional Sessions Judge set aside the Order of the Additional Chief Judicial Magistrate and sent the Page 4 5 Crl.A.@SLP(Crl.) No. 8101 of 2009 matter back to the Additional Metropolitan Magistrate to rehear the matter after considering

Metropolitan Magistrate considered the entire evidence on record and came to the conclusion that no case was made out and the protest petition filed by the complainant deserved to be dismissed. 4. The complainant being aggrieved by the Order of the Additional Metropolitan Magistrate preferred a criminal revision before the Court of learned Additional Sessions Judge which upheld the Order passed by the Additional Metropolitan JUDGMENT Magistrate. The complainant, therefore, preferred a petition under Section 482 of CrPC challenging the Order of the learned Additional Sessions Judge. The Hon’ble High Court exercised its inherent jurisdiction to set aside the findings of Page 5 6 Crl.A.@SLP(Crl.) No. 8101 of 2009 the courts below and allowed the petition of the complainant.

4.2.2009, held that the statement recorded by the ACJM clearly reveals that the complainant handed over three gold chains to the accused-appellant at the time of purchase of cloth by the appellant from the complainant’s shop but the same were not returned. Therefore, according to the High Court, a prima facie case of criminal breach of trust was clearly made against the accused-appellant. The trial Court erred in observing that no entry could JUDGMENT have been made by the complainant in his record book simultaneously when the clothes were purchased by the accused appellant from the complainant’s shop. The High Court further held that trial court erred in proceeding on any presumption when the evidence available on record Page 6 7 Crl.A.@SLP(Crl.) No. 8101 of 2009 proved otherwise and there was admission by the accused. In such cases, the burden was on the

him. Therefore, the High Court remanded the matter back to the trial court for fresh decision in the light of the statements of the witnesses and evidence on record. 6. In the light of the facts and circumstances presented before us on the basis of evidence on record, and also based on the contentions raised by the learned senior counsel on behalf of both the parties, we are inclined to frame the JUDGMENT following issue to be answered by us: 1.Whether the High Court was justified in remanding the matter back to trial court for consideration on merit against the concurrent findings of the courts below? Page 7 8 Crl.A.@SLP(Crl.) No. 8101 of 2009 7. It is to be noted here that the case made against the accused in this case is that of

The punishment for Criminal breach of trust is provided under Sections 406-409 of IPC.

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The first consists of the creation of an

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(emphasis laid by this Court) 10. In the light of the above legal principle laid down by this Court, the High Court was correct in holding that presumptions have been made by the Page 11 1 Crl.A.@SLP(Crl.) No. 8101 of 2009 trial court where it was not necessary in fact situation at hand. The decision reached by the

JUDGMENT ……………………………………………………………………J. [SUDHANSU JYOTI MUKHOPADHAYA] ……………………………………………………………………J. [V. GOPALA GOWDA]

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