LexSUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS, WEST BENGAL versus BIRENDRA CHANDRA CHAKRAVARTY
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e c :0 E F G ff SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS, WEST BENGAL V. BIRENDRA CHANDRA CHAKRAVARTY November 21, 1973 [M. H, BEG ANDY. V. CHANDRACHUD, JJ.] 481 Indian Penal Code s. 40l-Responden: was actln, as trust11 and attnt of tl11 complainant-Ile transferred certain proptrtles without knowledge of the rlDI owner-. Whether criminally liable in view of innumerable transactions between the parties. 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 misappro- priating the proffts thefeof, 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 in- fluence 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'retum were actually iransferred 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 alleaed to have committed criminal breach of trust, in misappropriatina 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 respon4ent had claimed that he had actually bou.*1:ht the disputed properties himself for the use of his disciples and that there were now trust properties---the properties stood trans- ferred in the name of Ashoka Trust when the F.l.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 respon .. dent 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 dis- pute be first decided before any question of criminal liability by satisfactorily adju- dicated upon. 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 SUPREME COURT REPORTS [1974] 2 S.C.R, 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 Chakra- borty, trustees of the Ashoke Trust, and misappropriated the profits thereof, and thereby you the said
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