SALEH Versus STATE

I his is all application under section 561 (A), Cr. P. C. for quashment of proceedings pending in the Court of Mukhtiarkar and F. C, M. Mithi, for an alleged offence under section 406, P. P. C.

2. Respondent No. 2 Jumoo filed a direct complaint in the Court of District Magistrate, Tharparkar, on 14th April, 197, claiming therein that the present applicants Saleh and Rahim Dino, brothers inter se, are cattle businessmen who purchase cattle from the rural areas and sell them in big cattle markets, like that of Hyderabad; that two months prior to the filing of the complaint they visited the village of the complainant and in presence of Adam Nohri they purchased four goats at rate of Rs. 80 each and told the complainant that as they did not have ready cash the payment would be made either on the next trip or through a representative appointed by the complainants. The goats were taken away and it was agreed that Adam Nohri, who was scheduled to visit Hyderabad within the next 15 days would be made payment on behalf of the complainant. But when Adam Nohri visited Hyderabad accused/applicants promised to pay him the next day. On the next day, however, they clearly refused to make any payment. The complainant then came to the conclusion that the present applicants had no intention to make the payment and therefore he filed the direct complaint praying for the redress of his grievance.

3. The complaint was transferred to the Court of Mukhtiarkar and F. C. M., Mithi, who after examining the complainant and his witness Adam Nohri, passed the following order:‑

"Offence if any committed is under S. 406, P. P. Code by the accused. Issue B, W, in sum of Rs. 500 against the accused. Put off to 12‑5‑75.

(Sd.)

22‑4‑75 Mukhtiarkar and F. C. M., Mithi."

Being aggrieved by this order the present applicants have moved for the quashment of the proceedings.

4. For an offence under section 40b, P. P. C., the essential ingredient is the entrustment of the property or dominion of the accused over such pro perty; and secondly the dishonest misappropriation or conversion to ones own use of that property. The expression `entrusted' when applied to any thing other than money, clearly indicates that such thing continues to remain the property of the person entrusting it to the other person. In this regard observations made in Emperor v. Ghanshamdas (A I R 1928 Sind 106) illustrate the point:‑

"But the expression "entrusted" in that section is used in its legal and not to its figurative or popular use. The section makes no distinction between the different kinds of movable property. If the expression "entrusted" is applied to a thing which is not money it would indubit ably indicate that such thing continues to remain the property of the prosecutor, during the period in which the accused is permitted to retain its possession or is permitted to have domain over it. There is nothing in the section to indicate that the entrusting of money to an accused person should not receive the same meaning."

5. In a case of transfer of the property for the purpose of entrustment it is received by the person so receiving it not (in account of himself but on account of the person entrusting such property. Section 405 of the Penal Code, which defines 'Criminal breach of trust' creates a relationship whereby the owner of the property transfers its possession to another person for a contingent purpose. But the person transferring such possession does not part with the ownership of the property, and he continues to be its legal owner. The person to whom such property is transferred has only the custody of the property to be disposed of in accordance with the terms of entrustment and for the benefit of the owner.

6. In the present case there was a contract of sale. Four goats were handed over to the present accused applicants by way of sale. The contract of sale would have been complete if the payment of the price of the goats had been made as stipulated. But by no means can it be contended that the handing over of goats was made for any purpose other than of this sale. The moment respondent No. 2 handed over the goats be divested himself of the ownership of the goats, and it cannot be claimed that such transfer amounted to entrustment, pending finalisation of the transaction of sale. As no entrustment has taken place the question of commission of an offence under section 406, P. P. C. would not arise. The case is only of a non per formance of contract and a criminal complaint is by no means the remedy for the sane. The proceedings are, therefore, quashed.

Proceedings quashed.