A mere transaction of sale cannot amount to an entrustment within the meaning of Section 405 of the Indian Penal Code.

Judgement

HEGDE, J. :- The State of Gujarat has filed this appeal, by special leave against the order of acquittal made by the High Court of Gujarat in criminal appeal No. 759/63 on its file. The respondent herein was convicted for an offence under Section 409 I. P. C. by the city magistrate, 7th Court, Ahmedabad, and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500, in default to suffer rigorous imprisonment for four months more.

2. The facts of the case lie within a narrow compass. The government of Gujarat gave on contract to Bharat Sewak Samaj (Gujarat) the work of construction of a building for the government litho-printing press. From exh. 20 it appears that the BSS in its turn gave that work on sub-contract to a firm known as M/s. Kaushik and Co., though it was sought to make out that M/s. Kaushik and Co. were merely appointed to supervise the work. The firm Kaushik and Co. consisted of two partners. The respondent who is the brother of one of the partners was looking after the construction work. On 9-4-62, BSS applied to the Deputy Engineer (construction sub division, Ahmedabad) for allotment of ten tons of cement for the construction work in question. In response to that application, the Deputy Engineer allotted five tons (100 bags) of cement and the same was delivered to the respondent for and on behalf of BSS on 10- 4-62. All these facts are admitted.

3. The further case of the prosecution is that after taking delivery of the aforementioned 100 bags of cement, the respondent delivered at the work site sixty bags of cement and the remaining, forty bags he sent to the godown of PW 2 Tayabali Jiwaji. About these facts also there is no dispute.

4. From the above facts, the appellant wants us to conclude that the respondent had committed breach of trust in respect of the forty bags of cement he sent to the godown of PW 2. The case for the respondent is that in anticipation of allotment to BSS; Kaushik and Co. had utilized for the construction work in question forty bags of cement belonging to them, and hence he sent forty bags of cement to the godown of PW 2 to be stocked for and on behalf of Kaushik and Co. The trial court disbelieved that version and convicted the respondent under Section 409 I. P. C. The High Court in a highly laconic judgment allowed the appeal and acquitted the respondent.

5. Before examining the correctness of the High Court s judgment it is necessary to mention that in this case the BSS had not made any complaint against the respondent. In other words, it is not the case of BSS that the respondent who took delivery of hundred bags of cement on their behalf had misappropriated forty bags out of the same. The case against the respondent proceeded on the basis that the government had entrusted to him 100 bags of cement for the purpose of being used in the construction of the building in question, but he misappropriated forty bags out of the same. Therefore, we have to see whether the prosecution has established the entrustment pleaded and the misappropriation alleged.

6. We were not made aware of the conditions under which the government gave the construction work to BSS. The written agreement between the government and the BSS, if there be any, has not been produced in this case. There is also no oral evidence in regard to the particulars of the agreement between the government and the BSS. Therefore we have to proceed on the basis that the contract given to the BSS is one of those usual contracts under which it was for the contractor to secure the necessary materials. Evidently because cement was a controlled commodity in 1963, BSS had to apply for its allotment in the absence of any evidence to the contrary we have to proceed on the basis that BSS either paid for the cement in question or its price was adjusted towards the money due to it.

7. On the proved facts, it is difficult to accept the contention of the appellant that after the sale of the cement in question the