Rajasthan High Court - Jodhpur

Kamla Devi vs State Of Rajasthan (2025:Rj-Jd:26035) on 27 May, 2025

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2025:RJ-JD:26035]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
            S.B. Criminal Revision Petition No. 1568/2024

Kamla Devi W/o Late Bhana Ram, Aged About 65 Years, R/o
Roopnagar, Bartu Police Station Bhim, Dist. Rajsamand.
                                                                          ----Petitioner
                                    Versus
1.       State Of Rajasthan, Through Pp
2.       Sukhdev Singh S/o Prem Singh, R/o Sarvina Tehsil
         Todgarh, Dist. Ajmer, At Present Bartu Police Station
         Bhim, Dist. Rajsamand.
                                                                       ----Respondents


For Petitioner(s)         :     Mr. A.D. Ujjwal
For Respondent(s)         :     Mr. Deepak Choudhary, AAG
                                Mr. Kuldeep Singh Kumpawat, AAAG



          HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                  Judgment

27/05/2025

      The petitioner has filed the present revision petition against

the judgment dated 11.09.2024 passed by learned Special Judge,

SC/ST (Prevention of Atrocities) Rajsamand in Criminal Appeal No.

54/2023 whereby, he dismissed the appeal and affirmed the

judgment dated 22.07.2020 passed by Additional Chief Judicial

Magistrate, Bhim, District Rajsamand, acquitting the respondent

from offence under Section 406 IPC.

      Briefly, the facts of the case are that the complainant

petitioner filed a complaint against the respondent no.2 before the

learned Additional Chief Judicial Magistrate, Bhim alleging therein

that on 14.10.2015, the accused respondent no.2 came to his

house    and    entered    into     an    agreement              for    completion    of



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construction work of house of petitioner. It was alleged that the

entire construction work was to be completed within a period of

one month, for a sum of Rs. 1,56,000/-. It was stated that the

petitioner paid a total sum of Rs. 1,34,950/- on different

occasions, however, the respondent no.2 failed to complete the

work and kept on lingering the work. Therefore, appropriate

criminal proceedings be initiated against the respondent no.2.

      The learned trial court examined the petitioner under Section

200 Cr.P.C. so also the witnesses under Section 202 Cr.P.C and

took cognizance against the respondent no.2 for offence under

Section 406 IPC vide order dated 13.10.2017. Thereafter, charges

of the case were framed against the respondent no.2 for the

offence under Section 406 IPC. The accused respondent no.2

denied the charges and claimed trial.

      The prosecution in support of its case examined five

witnesses and one document was exhibited.                           The statement of

accused respondent under Section 313 Cr.P.C. was recorded, who

examined five witnesses in his defence.

      After conclusion of trial, the trial court acquitted the

respondent no.2 from the offence under Section 406 IPC vide its

judgment dated 22.07.2024.

      Feeling aggrieved, the petitioner preferred an appeal before

the   court   of     learned     Special      Judge,       SC/ST      (Prevention   of

Atrocities) Act Cases, Rajsamand who dismissed the appeal vide

judgment dated 22.07.2024. Hence, this revision petition.

      Learned counsel for the petitioner argued that the courts

below, without thoroughly examining the entire record and

evidence, acquitted the accused respondent from offence under

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Section 406 IPC. It is submitted that a clear case of offence under

Section 406 IPC is made out against the respondent no.2, as the

respondent no.2 did not complete the work for long time, on the

contrary, usurped a sum of Rs. 1,34,950/-. All the prosecution

witnesses have categorically stated that the respondent no.2 had

not completed the work as per the agreement entered into

between     them.    However,       the      courts      below   acquitted   the

respondent on the basis of minor contradictions in the witnesses'

statements. Thus, the judgments of the courts below are liable to

be set aside, and the matter may be remanded back to the trial

court for passing a fresh order.

      Per contra, counsel for the respondent-accused argued that

the prosecution primarily relied upon the statements of witnesses,

whose testimonies did not inspire confidence and were riddled

with contradictions. Therefore, no interference is warranted in the

impugned judgments, and the appeal is liable to be dismissed.


      I have heard the counsels for the parties and gone through

the material on record.


      In order to appreciate the controversy, it would be apt to

refer to Section 405 of I.P.C. This Section stipulates that the

offence of criminal breach of trust as defined in Section 405 of the

IPC have been committed when a person who had been entrusted

in any manner with the property or has otherwise dominion over

it, dishonestly misappropriates it or converts it to his own use, or

dishonestly uses it, or disposes it of, in violation of any direction of

law prescribing the mode in which the trust is to be discharged, or


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of any lawful contract, express or implied, made by him touching

such discharge, or willfully suffers any other person so to do.

        The essential ingredients for establishing an offence of

criminal breach of trust as defined in Section 405 and punishable

under Section 406 IPC with sentence for a period up to three

years or with fine or with both, are:

        (i) entrusting any person with property or with any dominion

        over property;


        (ii) the person entrusted dishonestly misappropriating or

        converting to his own use that property; or dishonestly using

        or disposing of that property or wilfully suffering any other

        person so to do in violation of any direction of law

        prescribing the mode in which such trust is to be discharged,

        or of any legal contract made touching the discharge of such

        trust.


        This Court has observed that the disputes over payments

appear to be verbal disagreements rather than deliberate acts of

criminal breach of trust. The sole allegation that could potentially

bring the case within the purview of Section 406 IPC pertains to

the accused respondent having taken cash from the complainant.

However, from a legal standpoint, this assertion alone does not

satisfy the essential elements required to constitute an offence of

criminal breach of trust under Section 405 IPC, as it pertains to

the misappropriation or conversion of property entrusted to the

accused, which is not established here. Furthermore, the trial

court     has    correctly   noted       that     the     prosecution   failed   to


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demonstrate          that      the      accused         was      entrusted   with   the

complainant's valuables or that he subsequently misappropriated

or converted them. The absence of any credible evidence

establishing the element of entrustment is a significant deficiency,

as the offence under Section 406 IPC fundamentally depends on

the proof that the accused was entrusted with property and

subsequently misused or converted it for personal gain. In the

absence of such evidence, the prosecution has failed to prove its

case burden of proof beyond a reasonable doubt to establish the

offence under Section 406 IPC.


      In the case of Mrinal Das & others v. The State of

Tripura     reported in 2011(9) SCC 479, the Hon'ble Supreme

Court, after looking into many earlier judgments, has laid down

parameters, in which interference can be made in a judgment of

acquittal, by observing as under:


      "An order of acquittal is to be interfered with only
      when there are "compelling and substantial reasons",
      for doing so. If the order is "clearly unreasonable", it is
      a compelling reason for interference. When the trial
      Court has ignored the evidence or misread the
      material evidence or has ignored material documents
      like dying declaration/report of ballistic experts etc.,
      the appellate court is competent to reverse the
      decision of the trial Court depending on the materials
      placed.

      Similarly, in the case of State of Rajasthan v. Shera Ram

@ Vishnu Dutta reported in (2012) 1 SCC 602, the Hon'ble

Supreme Court has observed as under:--


      "A judgment of acquittal has the obvious consequence
      of granting freedom to the accused. This Court has

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      taken a consistent view that unless the judgment in
      appeal is contrary to evidence, palpably erroneous or
      a view which could not have been taken by the court
      of competent jurisdiction keeping in view the settled
      canons of criminal jurisprudence, this Court shall be
      reluctant to interfere with such judgment of acquittal."

      In the case of Bhupatbhai Bachubhai Chavda and Ors.

Vs. State of Gujarat reported in AIR 2024 SC 1805, the

Hon'ble Supreme Court has observed as under:--

      "6. It is true that while deciding an appeal against
      acquittal, the Appellate Court has to reappreciate the
      evidence. After re-appreciating the evidence, the first
      question that needs to be answered by the Appellate
      Court is whether the view taken by the Trial Court was
      a plausible view that could have been taken based on
      evidence       on     record.       Perusal        of    the    impugned
      judgment of the High Court shows that this question
      has not been adverted to. Appellate Court can
      interfere with the order of acquittal only if it is
      satisfied after reappreciating the evidence that the
      only possible conclusion was that the guilt of the
      Accused had been established beyond a reasonable
      doubt. The Appellate Court cannot overturn order of
      acquittal only on the ground that another view is
      possible. In other words, the judgment of acquittal
      must be found to be perverse. Unless the Appellate
      Court records such a finding, no interference can be
      made with the order of acquittal."


      In the case of H.D. Sundara v. State of Karnataka [H.D.

Sundara v. State of Karnataka reported in (2023) 9 SCC 581

the Hon'ble Supreme Court summarised the principles governing

the exercise of appellate jurisdiction while dealing with an appeal



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against acquittal Under Section 378 Code of Criminal Procedure as

follows:
      8. ... 8.1. The acquittal of the Accused further
      strengthens the presumption of innocence;
      8.2. The appellate court, while hearing an appeal
      against acquittal, is entitled to reappreciate the oral
      and documentary evidence;
      8.3. The appellate court, while deciding an appeal
      against acquittal, after reappreciating the evidence,
      is required to consider whether the view taken by the
      trial court is a possible view which could have been
      taken on the basis of the evidence on record;
      8.4. If the view taken is a possible view, the
      appellate court cannot overturn the order of acquittal
      on the ground that another view was also possible;
      and
      8.5. The appellate court can interfere with the order
      of acquittal only if it comes to a finding that the only
      conclusion which can be recorded on the basis of the
      evidence on record was that the guilt of the Accused
      was proved beyond a reasonable doubt and no other
      conclusion was possible.
      ...........

41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the Accused has to be exercised within the four corners of the following principles:

41.1. That the judgment of acquittal suffers from patent perversity;

41.2. That the same is based on a misreading/omission to consider material evidence on record; and

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41.3. That no two reasonable views are possible and only the view consistent with the guilt of the Accused is possible from the evidence available on record.

This Court opined that there exists a very thin but a fine

distinction between an appeal against conviction on the one hand

and acquittal on the other. The preponderance of judicial opinion is

that there is no substantial difference between an appeal against

acquittal, except that while dealing with an appeal against

acquittal the Court keeps in view the position that the

presumption of innocence in favour of the accused has been

fortified by his acquittal and if the view adopted by the Courts

below is a reasonable one and the conclusion reached by it had

grounds well set out on the materials on record, the acquittal may

not be interfered with. Learned counsel for the appellant has

failed to show any error of law or on facts on the basis of which