Failure to replenish goods hypothecated to the Bank constituted criminal breach of trust, leading to the maintenance of convictions despite the existence of civil-court decrees and the petitioners' plea for mercy.

M.M.Punchhi, J.

1. By this order, Criminal Revision Nos. 758 and 785 of 1981 would stand disposed of.

2. The respective petitioners in these two petitions obtained loan of Rs. 10,000/- each from the complainant-Bank and, in terms of the hypothecation-dee, hypothecated their goods present in their respective business premises from time to time. On the terms of the hypothecation-deed, the complainant-Bank assumed that goods hypothecated were theirs and the respective petitioners, having dominion over them, were in the nature of trustees to keep them replenished from time to time in the ordinary course of business. Since the respective petitioner sold the goods and did not replenish them, this gave cause to the complainant-Bank to file two complaint against the respective petitioners under section 406/34, Indian Penal Code. The petitioners, on being summoned for the purpose by the trial Magistrate, took up the plea that their liability was civil in nature and, on the terms of the hypothecation-deed, no case of entrustment had been made out. In the present case, the sole question which thus could arise was the interpretation of the hypothecation-deed and the consequential liability of the petitioners whether it is civil or criminal.

3. The matter came up before me earlier. It was then stated at the Bar that the respective petitioners had suffered civil-court decrees (in one case consensually and, in the other case, after contest) and those civil-court decrees had become final. It has now been stated by the learned counsel for the petitioners that, in furtherance thereof, the respective petitioners are making payments of the decretal amount in installments. The factual existence of the civil-Court decrees is not disputed by Mr. Naruala, learned counsel for the complainant-Bank, but he is emphatic that the Bank, on that score, had not become disinterested in pursuing for the maintenance of the convictions and the sequel sentences.

4. Learned counsel for the petitioners in both these cases have wisely not attempted to plead for interpretation of the hypothecation-deed lest the interest of the petitioners get entangled in further litigation. They have taken the stance that the petitioners are petty shopkeepers and, in the ordinary course of business, have entered into these deals with the Bank in a routine manner. Without challenging the conviction of the petitioners for Criminal breach of trust, they have prayed for mercy. I think the stance adopted by the learned counsel, in the circumstances, is most fair and proper. Accordingly, acceding to their prayer, they convictions of the respective petitioners are hereby maintained while reducing their sentences of imprisonment to the period already undergone but sustaining that of fine together with the default clauses. In case of payment of fine, let this go to the complainant-Bank towards costs of litigation. These petitions are partially allowed in this terms.