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Criminal Revision Application No. 222 of 1968, decided on 1st June 1971.

----S. 403-Criminal misappropriation of property-Motor-cycle given for repairs but sold away by accused-Nothing to disbelieve prosecution witnesses nor anything on record to assail their evidence-Accused, held, rightly found guilty of offence-Conviction maintained.

Ramchand for Appellant.

Manzoor Hassain for A.-G. for the State.

Date of hearing: 1st JuneJ1971.

The applicant was convicted by the learned Civil Judge and 1st Class Magistrate, Hyderabad for an offence under section 403, P. P. C. and sentenced to fine of Rs. 2,000 or in default to undergo R. I. for 6 months. The lenient sentence was awarded on the ground that the applicant was a young man and a student hailing from a good family. The appeal against the conviction and sentence was dismissed by the learned Sessions Judge.

The applicant was proprietor of vehicle repair business run in the name and style of "Azam Motor Service". Niaz the abscond ing accused was employed as a mechanic. The complainant owned a motor-cycle and he gave it to the applicant and Niaz for repair on 14-3-66. After some time he went to the shop to take back the motor-cycle if it was repaired, but the applicant and Niaz were not present. One Mama who was tried Tong with the applicant and Niaz and was discharged under section 253, Cr. P. C. was present at the shop and he informed the com plainant that Niaz had taken away the motor-cycle for trial. However, Niaz did not turn up till 11 p.m. and, therefore, the complainant went to the house of the applicant but learnt that the applicant and Niaz had taken away the motor-cycle to Karachi. The complainant waited till 18th March 1966, and thereafter came down to Karachi and made a search. They met Nisar broker who told them that the motor-cycle in question was sold by the applicant and Niaz for Rs. 3,300 to Shahnawaz through him. Search was made for the applicant and Niaz but there was no trace. So the complainant returned to Hyderabad and lodged the first report. The police resumed the investigation and 'secured the motor-cycle from Shahnawaz to whom it was sold by the applicant and Niaz. The applicant was arrested. After further investigation he was challaned.

The applicant denied that any motor-cycle was given to him for repairs or he had sold it. He pleaded that the witnesses bad been set up by the police when he had failed to pay the com mission. Two defence witnesses Ghulam Murtaza and Kasimuddin were examined.

The prosecution examined Mr. Allahdad A.S.I.P., Aziz Ali complainant, Yamin, Shahnawaz, Ghulam Rasul and Nisar Ahmed.

The complainant stated that he had delivered his motor-cycle to the applicant and Niaz for repairing, but he did not receive it back. He tried to contact the applicant and Niaz but there was no trace of them. He learnt that they had gone to Karachi. So he also came to Karachi and made a search where he came across a broker who told him that the motor-cycle had been sold to Shah Nawaz through him. Thereafter he lodged the report as be was not able to trace the applicant and Niaz.

Yamin is the previous owner of the motor-cycle and he had sold it to the complainant for Rs. 3,300. He himself had purchased it from one Ghulam Mustafa.

The third witness is Shah Nawan who had purchased the motor-cycle from the applicant and Niaz through Nisar broker. Subsequently the cycle was recovered from him by the police and he had picked out the applicant in the identification test. Nisar Ahmed is the broker while Ghulam Rasul is witness to the transac tion. Both of them supported Shah Nawaz and implicated the applicant.

Lastly, is the evidence of Mr. Allahdad A. S. I. P. who had recovered the motor-cycle from Shah Nawaz in the presence of mashirs and had prepared the mashirnama.

Thus it has been fully established by the evidence produced in this case that the complainant had given the motor-cycle to the applicant for repairs. He instead sold away the motor-cycle. There is no reason to disbelieve the witnesses. Nothing has been brought on record to assail their evidence. The applicant had alleged enmity against police but in this he has not succeeded. The evidence of the two defence witnesses is incredible and cannot be relied upon. Kasimuddin witness is father of the applicant and be made allegations against the police for asking him to pay Rs. 1,500 as illegal gratification. Ghulam Murtuza gave a different story. He stated that the complainant wanted to sell the motor-cycle and he demanded Rs. 3,300 but he offered to pay Rs. 2,700 whereupon the complainant said that he bad already been offered Rs. 3,300 and, therefore told Niaz to take the motor cycle to Karachi and sell it for that amount.

In the circumstances the lower Courts rightly came to the conclusion that the applicant was guilty of the offence. I there fore maintain the conviction -of the applicant but reduce the fine to Rs. 1,000 and in default maintain the sentence of imprisonment, With this modification the revision is dismissed.

Revision dismissed.

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