MULCHAND R THACKER Vs. SM KAMLA BAI

JUDGEMENT

(1.) This application in revision is directed against the order of the District Judge directing that a complaint be lodged against the petitioner before the District Magistrate for the commission of an offence under Section 406, Indian Penal Code, and such other section as may be found applicable in connection with 200 tons of coal and 38 coal tubs which were entrusted to the petitioner on 25-6-1961 as surety after the attachment thereof under a a writ issued by the trial court.

(2.) The facts leading to the application are these. Devji Shivji, husband of opposite party No. 1 and father of opposite party Nos. 2 to 6, obtained a decree for Rs. 72851 against opposite party No. 7 and others in the court of the Subordinate Judge, Dhanbad, and in execution of the said decree realised Rupees 27,306/15/- and cost amounting to Rs. 4252/-from opposite party No. 7. Opposite party No. 7 filed an appeal against the said decree in High Court and the appeal was allowed and the decree against opposite party No. 7 was set aside. Thereafter, opposite party No. 7 filed Execution Case No. 66 of 1960 in the Court of the Subordinate Judge, 1st Court, Dhanbad, for restitution and refund of the amount of cost which had been realised from him. Opposite party No. 7 made a prayer for attachment of 200 tons of coal and 38 coal tubs lying within the colliery premises of Devji Shivji and an order of attachment was passed. The attachment was effected on 25-6-1961 in Jeolgora Gobindpur Colliery and the attached articles were entrusted to the petitioner (brother of opposite party No. 7) as surety and he granted a receipt to that effect. The petitioner alleged that the attached, coal tubs remained in the colliery premises. On 13-7-1961 Devji Shivji deposited the amount for the realisation of which the attachment was effected and he filed a petition on 19-7-1981 for the return of the attached articles. By a notice dated 24-11-1961 the petitioner was directed to release the attached property by 8-12-1961. On receipt of the said notice, the petitioner filed an application on 8-12-1961 stating that the attached articles were never removed by him from the said colliery as they were very bulky and besides that, coal being a controlled commodity could not be removed without a permit. The petitioner expressed his willingness to point out the attached articles in the said colliery premises, if necessary. By an order dated 16-0-1962 the petitioner was directed to point out the articles and deliver possession of them to the judgment debtor. On 23-6-1962 the petitioner filed an application staling that he could not go to the colliery for pointing out the attached articles on account of the obstruction by the judgment debtor. On 6-7-1962 the petitioner was directed to file an affidavit and on 9-7-1962 he filed an affidavit stating that the court peon had no doubt attached 38 tubs and 200 tons of coal within the premises of the said colliery but the coal tubs being heavy and there being no permit for the removal of the coal those articles could not be removed and they were put in his charge. He further staled that he as well could not remove the attached articles and they were still lying in the premises of the said colliery. On 13-7-1962 one Krishna Chandra Sinha, an employee of Devji Shivji filed an affidavit alleging that the petitioner had removed 38 coal tubs and 200 tons of coal in a motor truck on 25-6-1961 and no part of the attached articles were lying in the colliery premises. On 20-7-1962 the court directed the petitioner to point out the attached articles and deliver them to Devji Shivji in presence of the Nazir and 8-8-1962 was the date fixed for that purpose but the petitioner could not go to the said spot and filed an application for some time. On 25-8-1962 the court again directed the petitioner to point out the articles in presence of the Nazir on 30-8-1962. On 31-8-1962 the Nazir submitted a report that the petitioner did not go to the spot but the petitioner filed an application stating that he did go to the spot and the Nazir was not available. Subsequently, Devji Shivji filed an application on 6-10-1961 in the court of the Subordinate Judge. Dhanbad, alleging that the petitioner (surety) did not return the attached articles and he had committed the offence of criminal breach of trust. Devji Shivji made a prayer for an inquiry under Section 476. Criminal Procedure Code. This application was registered as Miscellaneous Case No. 68 of 1962 under Section 476, Criminal Procedure Code, and the petitioner was directed to show cause why action under the said section should not be taken against him for misappropriating the properties given in his custody by the court peon Jahmna Upadheya on 25-6-1961 in Execution case No. 66 of 1960. The petitioner showed cause stating that he had not misappropriated the articles attached, in any manner and he had not removed them from the colliery premises. According to him, those articles were still lying there. The Subordinate Judge held that there was no prima facie case against the petitioner (surety) and it was not at all expedient in the interest of justice to institute a criminal case against him. Accordingly, he rejected the petition of the judgment-debtor.

(3.) Devji Shivji died and hence his legal representatives (opposite party 1 to 6), being aggrieved by the said order of the Subordinate Judge filed a miscellaneous appeal under Section 476B of the Code of Criminal Procedure before the District Judge. Dhanbad. The learned District Judge took a contrary view and held that it was expedient in the interest of justice that a complaint should be made against the petitioner for his prosecution for commission of an offence under Section 406, Indian Penal Code, and such other appropriate section as may be found to be applicable in connection with the said attached articles which were entrusted to him. He allowed the appeal and set aside the order of the court below. Hence, the petitioner has filed this application for the setting aside of the order of the District Judge.