Madanraj vs Jalamchand Lodha And Anr.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 27 January, 1959

Coram: P.B. Gajendragadkar, A.K. Sarkar, K. Subba Rao

In the matter titled Madanraj versus Jalamchand Lodha and another, decided on the twenty-seventh day of January, nineteen hundred and fifty-nine, the Supreme Court of India, constituted by the judges P B Gajendragadkar, A K Sarkar and K Subba Rao, delivered its judgment. The petition before this Court arose by way of special leave and challenged the order passed by the High Court of Madras. The High Court had set aside an earlier acquittal that had been granted by the trial magistrate in favour of the appellant and had remitted the matter to the lower court for further disposal in accordance with law. The appellant, who was engaged in the business of pawn-broking at Ambattur, a suburb of Madras, maintained a Katha account with the complainant, Jalamchand Lodha. Under that account, on the third day of November, nineteen fifty-six, the appellant owed the complainant a sum of fifteen thousand rupees. In order to secure this debt and in conformity with the customary practice governing Katha transactions, the appellant placed gold, silver and jewellery valued at approximately the same amount in a locked box that was kept in the possession of the complainant, while the key to that lock remained with the appellant.

The allegation advanced against the appellant was that, during the period extending from the third of November, nineteen fifty-six, to the ninth of April, nineteen fifty-seven, he visited the complainant’s residence to conduct business, and on one or more of those occasions he opened the locked box and removed a substantial quantity of gold and silver jewellery. On the ninth of April, nineteen fifty-seven, the complainant discovered that jewellery and silver articles worth fourteen thousand rupees had been taken from the box without his knowledge or consent. On the basis of these alleged facts, the complainant lodged a charge-sheet against the appellant invoking Section 380 of the Indian Penal Code.

At the trial, the complainant presented evidence supporting his case and relied on two documents executed by the appellant. The first document was a promissory note for the sum of fifteen thousand seven hundred and forty-five rupees dated three-november-1956, exhibited as Exhibit P-1. The second document was an agreement dated nine-April-1957, shown as Exhibit P-2. In the latter agreement the appellant admitted that, for the amount of fifteen thousand seven hundred and forty-five rupees due to the complainant, his jewellery box had been kept with the complainant, and that jewellery or its equivalent value of fourteen thousand rupees had been removed by the appellant without the complainant’s knowledge. The appellant further promised to retrieve the jewellery from his own house and to replace it in the box by the fifteenth of April, nineteen fifty-seven, a promise which he subsequently failed to fulfil.

The appellant, before the trial magistrate, contended that both documents had been obtained from him under coercion, threat and undue influence exerted by the complainant. The learned magistrate rejected this claim and concluded that the appellant had indeed removed the valuables from the box and had voluntarily undertaken to restore them by the stipulated date of fifteen April, nineteen fifty-seven. Nevertheless, the magistrate held that, given the circumstances, the jewellery and other valuables could not be said to have been in the possession of the complainant within the meaning of Section 378 of the Indian Penal Code. Consequently, the magistrate determined that the offence of theft had not been established against the appellant.

The trial magistrate had acquitted the appellant of the alleged theft. The complainant contested this acquittal by filing a revisional application before the High Court of Madras. The High Court examined the magistrate’s interpretation of Section 378 of the Indian Penal Code and held that, in view of the facts that the magistrate himself had recorded, the conclusion was untenable and could be described as perverse. Consequently, the High Court concluded that, in the interests of justice, the acquittal order should be set aside and that the matter should be remitted for a new trial in accordance with law, taking account of the observations made in its judgment. The present appeal was filed against that order of the High Court.

At the hearing of the appeal, counsel for the appellant argued that the revisional application filed by the complainant under Section 439 of the Criminal Procedure Code was not competent. He maintained that the applicable code, as amended in 1955, contains a provision in Section 439(5) which expressly bars revision proceedings when an appeal is available and no appeal has been lodged. According to his submission, the complainant possessed a right to seek special leave to appeal the acquittal under Section 417(3) of the Code, and because he had not exercised that right, the High Court could not entertain a revision under Section 439. When questioned whether this objection had been raised before the High Court, the counsel for the complainant and the State indicated that it had not been. The court observed that, had the objection been raised earlier, the High Court would have considered it on its merits and might have allowed the complainant to convert his revision application into a special leave application under Section 417(3). The court therefore declined to permit the appellant’s counsel to introduce this point for the first time in the present petition under Article 136. The appellant’s counsel further contended that the High Court erred in finding that the essential ingredients of Section 378 were proved. He submitted that the jewels and ornaments remained in a box that served as a notional security with the complainant, and that the appellant was always free to remove items from the box as he wished. He also claimed that the document relied upon by the lower courts (Exhibit P-2) had been executed by the appellant under coercion and undue influence. The court, however, expressed that it would not entertain these substantive contentions at this stage because the High Court’s order merely directed a fresh trial and was interlocutory in nature. The court noted its general practice of not interfering with interlocutory orders under Article 136 and indicated that any challenges to the prosecution’s case, whether on law or fact, should be raised by the appellant during the subsequent trial.

The Court observed that the appellant could not properly introduce the contention that the document had been executed under influence at this late stage of the present appeal. The only direction issued by the High Court was an order that the matter should be retried in a fresh trial. Such an order of remand did not finally determine any of the substantive issues between the parties and was therefore of an interlocutory nature. Consequently, the Court declined to pass any judgment on the observations made by the High Court, fearing that any comment might prejudice the forthcoming trial. Interference with interlocutory orders under Article 136 is not a usual practice of this Court, and the present situation offered no justification to deviate from that practice. Should the appellant wish to challenge the prosecution’s case on either legal or factual grounds, he may do so during the trial that the appropriate court will conduct. The Court expressly refrained from expressing any view on those prospective arguments, leaving them to be examined by the trial judge. Counsel for the appellant then drew the Court’s attention to a civil suit, number 41 of 1958, filed by the complainant on February 10, 1958, concerning the same promissory note. He suggested that all further criminal proceedings, which had been remanded by the High Court, should remain stayed until the civil suit reached a final decision. The respondents, however, argued that even if the civil suit did not result in a decree for the full amount claimed, the merit of the criminal complaint would remain unaffected. The Court again declined to opine on this contention, maintaining its stance of non-intervention on substantive questions pending a fresh trial. It indicated that the appellant, if he so desired, could move the appropriate authority for a stay of the criminal proceedings, and any such application would be dealt with according to law. Finally, the Court concluded that the appeal could not be sustained on any ground and therefore dismissed it with finality.