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2024 DIGILAW 791 (KER)

Shaan Finance Ltd. v. A. K. Shakkeer

2024-07-04

P.G.AJITHKUMAR

body2024
JUDGMENT : This is an appeal against acquittal filed under Section 378(3) and (4) of the Code of Criminal Procedure, 1973 (Code). 2. The appellant filed a complaint alleging that the 1st respondent along with others committed offence punishable under Sections 406, 420 and 120B read with Section 34 of the Indian Penal Code, 1860 (IPC). The 1st respondent alone was summoned and tried. He was tried on a charge for the offence under Section 406 of the IPC. The Chief Judicial Magistrate, Ernakulam convicted and sentenced him as per the judgment dated 03.07.2009. The 1st respondent appealed. The Additional Sessions Judge (Adhoc)-II, Ernakulam allowed the appeal and acquitted the 1st respondent. Challenging that judgment, this appeal has been filed. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor. The 1st respondent did not turn up. 4. The accusation against the 1st respondent was that he obtained possession of a stage carriage having registration No.KL-3-6512 on hire from the appellant. A hire purchase agreement was executed in that regard. The 1st respondent defaulted payment of hire instalments and an amount of Rs.1,62,872/-was to be paid as on 16.04.2004. Not only that he failed to make payment of that amount despite demand, but also he alienated the vehicle to strangers with a dishonest intention. 5. Before the trial court, PW1 was examined and Exts.P1 to P3 were produced in order to prove the charge. The 1st respondent gave evidence as DW1 and he proved Ext.D1 series. After considering the said evidence, the trial court held that the 1st respondent sold the vehicle in total disregard of the stipulations in Ext.P2 agreement and that constituted criminal breach of trust. The appellate court did not agree. The view taken by the appellate court is that the evidence tendered by the appellant was totally insufficient to prove the facts as to what was the amount due from the 1st respondent and that the sale was without the consent and concurrence of the appellant. It was accordingly held that no dishonest intention could be attributed to the 1st respondent in his act of sale of the vehicle. Accordingly, it was held that the offence of criminal breach of trust was not established. 6. It was accordingly held that no dishonest intention could be attributed to the 1st respondent in his act of sale of the vehicle. Accordingly, it was held that the offence of criminal breach of trust was not established. 6. The learned counsel for the appellant would submit that an offence of criminal breach of trust would be attracted if the vehicle which was under a hire purchase agreement has been sold by the hirer before making payment of all the hire instalments. In this regard, reliance was placed on Anup Sarmah v. Bhola Nath Sharma [ (2013) 1 SCC 400 ] and Amarchand Chajer v. Sub Inspector of Police [ 2000 (3) KLT 529 ]. The view taken in both the said decisions is that if the terms and conditions in the hire purchase agreement are devised in such a manner that a trust would be created between the hirer and the owner during the currency of the hire purchase agreement, sale of the vehicle by the hirer in total disregard and in violation of the conditions in the agreement that would amount to an offence of criminal breach of trust. Only if those ingredients are proved, a charge of criminal breach of trust could succeed. 7. PW1 is a representative of the appellant. He deposed on the strength of Ext.P1 power of attorney. He stated that the vehicle was dishonestly dismantled by the 1st respondent. But he conceded that it was not based on his personal information. Even regarding the amount due from the 1st respondent, PW1 could not depose convincingly. No document in that regard has been produced. When DW1, the 1st respondent, deposed that the vehicle was sold with the consent of the appellant, the said version could not be successfully cross-examined even. When breach of trust is alleged, it is the bounden duty of the prosecution to establish how the terms of the trust have been violated. Equally important is the proof regarding dishonest or fraudulent intention on the part of the accused. The evidence tendered by the appellant is totally insufficient to prove any of such facts. 8. When breach of trust is alleged, it is the bounden duty of the prosecution to establish how the terms of the trust have been violated. Equally important is the proof regarding dishonest or fraudulent intention on the part of the accused. The evidence tendered by the appellant is totally insufficient to prove any of such facts. 8. In an appeal against acquittal, powers of appellate Court are as wide as that of the Trial Court and it can review, re-appreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the Trial Court, it ought not to be disturbed by the appellate Court. So long as the view of the trial court can be said to be reasonably formed, regardless of whether the appellate court agrees with the same or not, the verdict of the trial court cannot be interdicted and the appellate court cannot supplant the view of the trial court. (See: Chandrappa and Ors. vs. State of Karnataka, [ (2007) 4 SCC 415 ] ; Shyam Babu vs. State of U.P.[ (2012) 8 SCC 651 ]; Central Bureau of Investigation vs. Shyam Bihari and Ors [ (2023) 8 SCC 197 ]. 9. Applying the law laid down in the aforesaid decisions, the view taken by the appellate court cannot be said to be perverse or totally incorrect. The view taken by the appellate court is quite reasonable in the light of the evidence brought on record. Therefore, the acquittal of the 1st respondent is not liable to be reversed. The appeal is therefore dismissed.