Jewels kept in a locked box with the complainant as security for a loan are in the possession of the complainant within the meaning of S. 378 of the Indian Penal Code.

Judgment

GAJENDRAGADKAR, J. : This appeal by special leave is directed against the order passed by the High Court of Madras by which the order of acquittal passed in favour of the appellant by the trial magistrate has been set aside and the proceedings have been remitted to the court below for disposal in accordance with law. The appellant is a pawn-broker of Ambattur near Madras. He had a Katha account with the complainant Jalamchand Lodha under which on November 3, 1956, he owed him Rs. 15,000; as security for the said sum and in accordance with the custom obtaining in Katha transactions the appellant had placed gold and silver jewels valued at about Rs. 15,000 in a locked box kept with the said complainant, the key of the lock remaining with the appellant. The case against the appellant was that he visited the complaint s house between November 3, 1956 and April 9, 1957 for transacting business with him when he opened the locked box and took away a large number of gold and silver jewels. On April 9, 1957, the complainant discovered that the appellant had removed from the said box jewels and silver articles worth Rs. 14,000 without his knowledge or consent. On these facts alleged by the complainant a charge-sheet was submitted against the appellant under S. 380 of the Indian Penal Code.

2. At the trial the complainant gave evidence in support of his case and relied upon two documents executed by the appellant, the promissory note for Rs. 15,745 (Ex. P-1) (3-11-1956) and the agreement (Ex. P-2) (9-4-1957). In the latter document the appellant had admitted that for the amount of Rs. 15,745 due by him to the complainant the appellant s jewels box had been kept with the complainant and that out of the said box jewels or the value of Rs. 14,000 had been taken away by the appellant without the complainant s knowledge. The appellant promised to bring the jewels back from his house and put them in the box by April 15, 1957, but he failed to keep his promise.

3. The appellant contended before the trial magistrate that these documents had been executed by him under coercion, threat and undue influence practised on him by the complainant. The learned magistrate rejected this contention and found that the appellant had in fact removed the valuables from the box and had voluntarily promised to restore them by April 15, 1957. He, however, held that, in the circumstances of the case, the jewels and other valuables in question could not be said to have been in the possession of the complainant within the meaning of S. 378 of the Indian Penal Code. That is why he took the view that the offence of theft had not been proved against the appellant and so he acquitted him of the said offence.

4. This order of acquittal was challenged by the complainant by his revisional application before the High Court of Madras. The High Court took the view that the conclusion of the magistrate as to the requirements of S. 378 of the Code was unsustainable having regard to the facts which the learned magistrate had himself found. Indeed the High Court was disposed to characterise the said conclusion as perverse. In the result the High Court held that, in the interests of justice, the order of acquittal should be set aside and the case should be sent back for disposal in accordance with law in the light of the observations made by the High Court in its judgment. It is against this order that the present appeal has been filed.

5. At the hearing of this appeal Mr. Mani, for the appellant, sought to challenge the competence of the revisional application filed by the complainant under S. 439 of the Criminal Procedure Code. He contended that the present proceedings are governed by the Code as amended in 1955 and he argued that S. 439 (5) of the Code expressly prohibits any proceedings by way of revision in cases where an appeal lies and no appeal has been brought. According to Mr. Mani, the complainant had a right to apply to the High Court for special leave to appeal ag