IMPORTANT POINTS
The civil case is decided based on preponderance of probability whereas the criminal case is decided based on proof beyond doubt. The prosecution has not succeeded in proving the offence under Section 406 of the IPC beyond doubt. This case is predominantly civil in nature. It is incorrect to decide a criminal case based on a judgment of a civil court alone. In this case, the relevancy of civil court judgment does not arise for consideration in view of the stay order issued by this Court in appeal. It is a fact that PW1 resorted to civil proceedings and the civil court granted decree in his favour.

ORDER :

This criminal revision petition is directed against the concurrent judgments of the courts below in Crl.Appeal No.524/2007 on the file of the Sessions Court, Palakkad Division dated 05.02.2010 and C.C.No.258/1996 on the file of the Judicial First Class Magistrate Court-III, Palakkad dated 29.9.2007 convicting the revision petitioner under Section 406 of the Indian Penal Code (hereinafter referred to as 'the IPC') and sentencing him to undergo simple imprisonment for a period of eight months and also to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for a period of three months more.

2. The prosecution case in brief is as hereinbelow:-

PW2 Sisili is the wife of PW1 Pankajakshan. When PW1 was away at Delhi, PW2, on instructions from PW1, entrusted his Fiat Car bearing registration No.KL Z 9635 for doing patch work to the workshop of the accused. Accordingly, on 25.9.1994 at about 10 am., the accused had taken the car to the workshop for repairs and received an amount of Rs.2,000/-as advance consideration. The allegation is that the accused failed to return the car after repairs and he had converted the same for his own use and thereby committed criminal breach of trust as defined under Section 406 of the IPC.

3. Initially, PW1 lodged a complaint before the Superintendent of Police, Palakkad. On the basis of the above complaint, PW6 registered Ext.P4 FIR. PW9 conducted investigation in this case and laid final report before the court.

4. The trial court took cognizance of the offence under Section 406 of the IPC and registered the case as C.C.No.258/1996. Upon summons, the accused entered appearance. After having heard both sides, the charge under Section 406 of the IPC was framed. The charge was read over to the accused to which the accused pleaded not guilty.

5. On the side of the prosecution, PWs.1 to 9 were examined and marked Exts.P1 to P4. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Cr.P.C. He denied all the incriminating circumstances appearing in the evidence against him. However, no defence evidence was adduced.

6. Heard Sri.Vipin Narayan, the learned counsel for the revision petitioner and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent-State.

7. The accused in this case was admittedly conducting a motor vehicle workshop under the name and style 'M/s.Panickers Auto Service Centre'. PW1 who is an Ayurvedic Vaidyan is the owner of a Premier Padmini Car bearing registration KL Z 9635. PW1 went to the workshop of the accused for routine car service. The vehicle needed some minor patch work as well. According to PW1, the accused agreed to do the patch work at a cost of Rs.4,000/-. PW1 was initially not willing since another workshop owner had agreed to do the same for Rs.3,000/-. Therefore, after servicing the vehicle, he brought the vehicle back without doing the patch work. Thereafter, he had gone to Delhi. On 20.9.1994 at 10 am, PW2 contacted him over telephone and told him that the accused along with a mechanic came for taking the vehicle for doing patch work. PW1 was not willing to give the vehicle. Thereafter, the accused had a conversation with him over phone. During the conversation, the accused agreed to return the vehicle after completing the patch work within one week for an amount of Rs.4,000/-. Accordingly, he trusted the accused and directed his wife to pay Rs.2,000/-as advance and entrust the vehicle to the accused. PW2 also supported the version of PW1. After seven days, PW1 returned from Delhi and went to the workshop of the accused. However, the work was not completed and the accused needed some time to complete the painting work as well. He paid the balance amount of Rs.2,000/-and an additional sum of Rs.1,000/-to complete the work. The grievance of PW1 is that he went several times to the workshop to get back the car. According to PW1, the accused did not return the car. Thereafter, the accused started