Beg, J. - (1.) The appellant before us by special leave was charged as follows by the Presidency Magistrate of Bombay:"I. B. P. Saptarshi, Presidency Magistrate 6th Court, Mazgaon, Bombay, do hereby charge you: Karnal Singh S/o. Uttam Singh as follows: "That you on or about the 20th day of February, 1968 at Bombay along with one Balwant Singh s/o. Uttam Singh who has absconded, at 171, Kazi Sayyed Street, being entrusted with certain property to wit M/Lorry No. 7372 valued at Rupees 52,000/- belonging to the complainant Shankar Dhondiba Sutar as driver committed criminal breach of trust in respect of the said property and aided and abetted to the absconding accused in commission of the said offence and thereby committed on offence punishable under Sec. 408 r.w. 114 of the Indian Penal Code and within my cognizance. And I hereby direct that you be tried by me on the said charge."
(2.) The prosecution evidence in the case was:One Shankar Dhondiba sutar a member of the Ex-Servicemen Transport Co-operative Society Ltd., Bombay, had purchased the truck No. MRS 7372 after taking a loan of Rs. 50,000/- from the Society out of which he had paid up Rupees 43,000/- He had entrusted Balwantsingh Uttamsingh, the brother of the appellant, with the truck. He had contract with Balwantsingh Uttamsingh under which he used to get a net income of Rs. 2000/- to Rupees 2200/- p.m. from Balwantsingh Uttamsingh who was running the truck and seemed to be incurring all necessary expenses over it. This amount was paid regularly upto Dec., 1967, Thereafter, Balwantsingh Uttamsingh, the driver, avoided meeting the purchaser of the truck and was said to be absconding. On 4-3-1968, the truck met with an accident and Balwantsingh Uttamsingh is said to have sent information of it to S. D. Sutar. On 9-3-1963, according to Sutar, Balwantsingh himself went to Sutar. And, when the owner asked him to take him to the truck, it is alleged that he did not comply with this request. As Shankar Dhondiba Sutar had not paid up the whole amount due for the truck which he had borrowed from the Society, the owner of the truck, as entered in the Insurance papers, was the Society itself. S. D. Sutar stated that he found the truck at Thana Katha where he also found the appellant before us, Karnal Singh Uttamsingh, who had been, apparently, driving the truck. The First Information Report was lodged on 20-4-1968 at 12.30 p.m. by S. D. Sutar. It is against Balwantsingh Uttamsingh and makes no allegations against the present appellant. It is said that Balwant Singh Uttamsingh had met S. D. Sutar again on 12-3-1968 and told him that he would turn up again. Vazir Singh Gaya Singh, P. W. 2, the Secretary of the Bombay Ex.-Servicemen Transport co. deposed that S. D. Sutar was a shareholder in the Company and proved the terms of his contract with Balwantsingh. He also made no complaint whatsoever against the present appellant. All that he said was that the truck was seen near Kashali Bridge and the present accused was it driver. Sub-Inspector Ramesh Damodar, P. W. 3, stated that, on 13-5-1968, Vazir Singh, PW 2, and a police constable brought the truck to Pydhonie Police Station and that it was being driven by the present appellant at that time. This is all the evidence against the appellant.
(3.) The only question that the appellant was asked by the learned Magistrate under Section 342, Criminal Procedure Code and the appellant's reply are: "Q. What do you wish to say with reference to the evidence given and recorded against you A. I do not know whether M/Lorry No. MRS 7372 was handed over to the complainant on sale-purchase agreement and that the complaint had paid Rs. 43,000/- towards the instalment I do not know whether the price was fixed at Rupees 50,000/-, Balwant Sing is my brother but I do not know if the complainant had given lorry in his possession in his capacity as a driver. I do not know whether Balwant Singh left with M/Lorry in Dec. 1967, I do not know anything about Balwant Singh not meeting the complainant thereafter, Mangal Singh told me that this lorry had met with an accident and that I should invest the amount over repair, and after the amount is recovered from the plying of the lorry, the lorry would be returned to him. It is true that Vazir Singh and one P. C. had told me to take the lorry at the Pydhonie Police Stn. I was the driver on the said vehicle at that time. I do not know where is my brother at present. He meets me at time. I have not spoken to him about the case, I want to lead defence witness.";