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PETITIONER: SUPERINTENDENT  AND  REMEMBRANCER  OF  LEGAL  AFFAIRS,  WEST

       Vs.

RESPONDENT: BIRENDRA CHANDRA CHAKRAVARTY

DATE OF JUDGMENT27/11/1973

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1974 AIR  290            1974 SCR  (2) 481  1974 SCC  (3) 661

ACT: Indian  Penal Code s. 401-Respondent was acting  as  trustee and   agent  of  the  complainant--He  transferred   certain properties  without  knowledge of  the  real  owner--Whether criminally  liable  in  view  of  innumerable   transactions between the parties.

HEADNOTE: The respondent was convicted and sentenced by the Additional Chief  Presidency  Magistrate, as trustee and agent  of  one Saila Bala Devi, for criminal breach of trust for selling  3 bighas  of land to the trustees of one Ashoka Trust and  for misappropriating the profits thereof, thereby, committing an offence  under  s.  401 of the I.P.C. On an  appeal  by  the respondent, the High Court held that the dispute between the parties  was  essentially  of a civil nature.   It  did  not decide the question whether a criminal breach of trust could be  committed in respect of immovable property entrusted  to an  agent  for management on a certain  understanding.   The real  dispute  was  whether  the  respondent,  who  was  the ostensible  owner of some immovable property, was  the  real owner or a benamidar holding on behalf of the real owner. The  facts are that the complainant with her family  shifted to   Calcutta  from  East  Bengal  after   partition.    The complainant  and her family came under the influence of  the respondent,  who was very much trusted by the lady  and  her family.  Under the advice of the respondent, the complainant transferred  her house in East Bengal and paid Rs.  37,000/- to one A, but the properties to be given by A in return were actually transferred to the Respondent as a Benamidar.  When the  respondent  executed the deed  of  relinquishment,  the disputed properties (Bansdroni properties) were  dishonestly left  out and not transferred.  The respondent, was  alleged to   have   committed   criminal   breach   of   trust,   in misappropriating the income of the disputed properties. Dismissing the appeal, HELD  :  (i)  In view of the  long  and  intimate  relations between the respondent and the family of the complainant and the  numerous transactions between them. it is difficult  to decide  whether  the respondent is criminally  liable.   The respondent  had  claimed  that he had  actually  bought  the disputed properties himself for the use of his disciples and

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that there were now trust properties -- the properties stood transferred in the name of Ashoka Trust when the F.I.R.  was made,-dedicated for charitable purposes. (ii)It  is  difficult to decide whether the  claim  of  the respondent is honest.  It is not possible to fasten criminal liability,  beyond  reasonable doubt,  upon  the  respondent before the right and the title to the disputed properties is properly established by the complainant by means of a  civil suit.   Therefore, the civil nature of the dispute be  first decided  before  any  question  of  criminal  liability   by satisfactorily adjudicated upon.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No, 145 of 1970. Appeal  by special leave from the judgment and  order  dated the  11th September, 1969 of the High Court at  Calcutta  in Criminal Appeal No. 160/65. D.N.  Mukherjee, A. K. Guha, G. S. Chatterjee and  P.  K. Gupta, for the appellant. Hardayal Hardy, L. K. Das Gupta, B. R. G. K. Achar and Suku- mar Ghosh, for the respondent. 482 The Judgment of the Court was delivered by BEG,  J.-The respondent, Birendra Chandra  Chakravarty,  was tried   by  the  Additional  Chief  Presidency   Magistrate, Calcutta, and convicted and sentenced to undergo one  year’s rigorous imprisonment and to pay a fine of Rs. 2,000/-  and, in  default  of  payment  of fine,  to  a  further  rigorous imprisonment for six months, on the following charge held to have been established against him:               "That   you   the   said   Birendra    Chandra               Chakraborty,  alias  Balak Brahmachari  on  or               about  the  29th  day of  February,  1958,  at               Calcutta, as trustee and agent of one Shrimati               Saila   Bala  Dasi,  from  or  on   26-11-1949               committed  criminal  breach of trust  as  such               trustee  and agent in respect of 3  Bighas  of               land out of about 5 Bighas of land situated in               Village  Bansdroni  in  the  district  of   24               Parganas  by selling the said three bighas  of               land to (1).Birendra Lal Sarkar, (2)  Birendra               Nath  Bose, and (3) Mahindra Lal  Chakraborty,               trustees    of   the   Ashoke    Trust,    and               misappropriated   the  profits  thereof,   and               thereby   you   the  said   Birendra   Chandra               Chakraborty,  alias  Balak  Brahmachari,  com-               mitted an offence punishable under section 409               of  the  Indian  Penal  Code  and  within   my               cognizance". On  an appeal by the convict respondent, the High  Court  of Calcutta  by an exceptionally long judgment of more  than  a 100  pages,  in the course of which a number  of  registered documents,  their correct interpretation, and their  effects were  discussed, held that the dispute between  the  parties was  essentially of a civil nature.  It did not  decide  the question  whether a criminal breach of trust could  be  com- mitted  in  respect of immovable property  entrusted  to  an agent  for  management  on  a  certain  understanding.   The gravamen  of the charge against the respondent was  that  he had,  in  violation of this understanding, set  up  his  own title  to one of the several properties, which  should  have been  relinquished  or transferred to the  complainant  Smt.

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Saila  Bala Devi just as other properties, mentioned in  the schedule  to a registered deed of derelinquisbment  (Ex.  8) dated 24-2-62, were actually transferred or relinquished  in favour  of  Smt.  Saila Bala Devi  after  acknowledging  her right  and title to them, although their  ostensible  owner, like  that  of  the property which was  said  to  have  been dishonestly   retained   and  not  relinquished,   was   the respondent  himself.  In other words, the real  dispute  was whether  an ostensible owner of some immovable property  was really its owner or merely a benamidar holding it on  behalf of the real owner. The rather pathetic story of Smt.  Saila Bala Devi was : She is  the widow of Aswini Kumar Das, a retired Chief  Engineer of  Dacca Municipality, who died sometime in  1934,  leaving her with seven daughters and four sons.  The Engineer. whose monthly  salary  was Rs. 1,000/-, had  left  a  two-storeyed house at Dacca, a Dispensary at Nawabpur, and 200 bighas  of land  in  Gangarampur,  in  addition to  a  deposit  of  Rs. 10,000/-,  a  life  insurance  policy  of  Rs.  22,000/  and provident  fund of Rs. 25,000/-.  Smt.  Saila Bala Devi  had also saved 483 about  Rs.  25,000/- and had gold ornaments.   She  and  her family,   however,  came  under  the  evil  spell   of   the respondent,   Birendra  Chandra  Chakravarty,  alias   Balak Brahmachari, sometime about 1944.  She, was so impressed  by the young Brahmachari, aged about 23 years, that she  looked upon  him as an avatar or incarnation of God.  She  and  her family as well as the Brahmachari (also called "Gurudev"  by them)  shifted  to  Calcutta  after  the  partition  of  the country.   Under the advice of the respondent,  Smt.   Saila Bala Devi transferred her house in East Bengal and paid  Rs. 37,000,/-  to  one Abdul Rahman, introduced to  her  by  the respondent,  but the properties to be given by Abdul  Rahman in  return for this consideration were actually  transferred to  the respondent as  a benamidar (the reason for  this  is not  clear).   When  the respondent  executed  the  deed  of relinquishment (Ex. 8) dated 24-2-62, she remained under the impression that her right to all the properties of which the respondent was benamidar was being recognised, but what  may be  called "Banasdroni properties" (which stood in the  name of Ashoke Trust at the time of the First Information Report, dated   26-11-63)   were  dishonestly  left  out   and   not relinquished.  She made demands upon the respondent to  make the relinquishment or transfer after she discovered, through one  of  her  sons, the fraud  perpetrated  upon  her.   The respondent  had terrorized her by threats of  letting  loose goondas  upon her.  The police was also under the  influence of  the respondent who had, by wrongly not relinquishing  or transferring  Bansdroni  properties  to  her  and  misappro- priating their income, committed a criminal breach of trust. The  F.I.R. dated 26-11-63 was, initially, a letter sent  to Shri  Profulla  Chandra  Sen, the  Chief  Minister  of  West Bengal, which was forwarded on to the Police. After  going through the relevant parts of the  judgment  of the High Court and the evidence of Smt.  Saila Bala Devi, we find  that  the  respondent  was  so  closely  and  so  long associated  with the family of Smt.  Saila Bala Devi and  so implicitly  trusted  by  the lady and  there  were  so  many transactions  between him and the lady concerned that it  is difficult to make out, in this case, the exact nature of the position   of  respondent  with  regard  to  the   Bansdroni properties.   The disillusionment of Smt.  Saila  Bala  Devi and  her family with the respondent actually came after  the respondent  had some quarrels with the sons of  Smt.   Saila

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Bala  Devi.  One of the reasons for these. quarrels  appears to  have been the refusal of a daughter of Smt.  Saila  Bala Devi to abandon the company of the respondent with whom  she was said to be living. it  may be that Smt.  Saila Bala Devi was sadly mistaken  in reposing  so  complete  a trust and faith  in  the  supposed goodness  and piety of the respondent who may  have  cheated her.  In view of the long and intimate relations between the respondent  and the family of Smt.  Saila Bala Devi and  the numerous  transactions  between  them, it  is  difficult  to determine  the  extent to which Smt.  Saila  Bala  Devi  was duped  or persuaded by misrepresentations to part  with  her rights  in properties.  She had a remedy by civil suit,  for the declaration of her 484 rights in and return of Bansdroni properties, still open  to her.   At  the’  time of the First  Information  Report  the disputed  Bansdroni  properties  stood  transferred  to  the "Ashoke  Trust" which would be a necessary party in  such  a dispute. The respondent had claimed that he had actually bought Bans- droni  properties  himself  for  the  use  of  his  indigent disciples and that these were now trust properties dedicated for  charitable purposes.  We are unable to decide,  on  the evidence  on record, whether the claim of the respondent  is honest  or a mere camouflage for cheating and roguery.   We, however,  think that it is not possible to  fasten  criminal liability,  beyond  reasonable doubt,  upon  the  respondent before  the right and the title to the Bansdroni  properties is properly established by Smt, Saila Bala Devi by means  of a  civil suit.  We think that the High Court was correct  in coming to the conclusion, having regard to all the facts and circumstances of the case, that a dispute of an  essentially civil nature had to be decided between Smt.  Saila Bala Devi and the respondent before any question of criminal liability could be satisfactorily adjudicated upon. On the view we have taken on the merits of the case we think it  unnecessary  to consider C.M.P. Nos. 1413  of  1973  for acceptance  of  additional  evidence  filed  on  behalf   of respondent  and C. M. P. No. 1414 of 1973 also filed by  the respondent  for the revocation of Special Leave  to  Appeal. These applications are hereby dismissed. The  result is that we dismiss this appeal by special  leave against  the  judgment and order of acquittal  by  the  High Court. S.C. Appeal dismissed 485