Mere retention of property is not enough to constitute criminal breach of trust; dishonest misappropriation or conversion must be established.

M.P.Varma, J.

1. The sole petitioner of this case has been guilty for an offence under Section 409 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three months. He was also charged under Sec. 467 of the Code but was acquitted of that charge.

2. The following few facts may be briefly stated in order to appreciate the point, which has been argued before me. The petitioner was working as an office clerk in the Dinapore Nizamat Municipal-Sty and during the absence of a tax Daroga he did his work also in addition to his own duties. The prosecution case is that he collected Rs. 123.58 paise during the period from 11-6-62 to 3-7-62, which was further extended upto 20-7-1962. The tax collected by the petitioner was not deposited with the cashier of the municipality but he kept amount as well as counter foil receipt books, under which the collection was made, at his house. The Municipal Chairman asked him on 20-7-1962 as to whore the counter foils of the receipts were. The petitioner informed him that they were at his house. He ordered him to bring them and the petitioner brought them. Then he was further asked as to where the amount was which he had collected under those eight receipts. The petitioner gave out that the amount was at his house and he would go and fetch the same. This he did on that very day and the money was deposited in the account of the municipality. Later on 24-7-1962 another Assistant Tax Daroga made a report (Ext. 7) about the interpolation in the receipts, which had been issued by this petitioner. The matter was enquired into and the Chairman of the Municipality lodged F. I. R. in this case on 30-7-1962. There was enquiry by the police and charge sheet was submitted against this petitioner. He was first tried, after commitment, by the 1st Assistant Sessions Judge of Patna, who convicted him and sentenced him to three months rigorous imprisonment under Sec. 409, Penal Code. Against this order of conviction there was an appeal which was heard by the learned 2nd Additional Sessions Judge of Patna, who confirmed the order of conviction and sentence. This revision is against the order of the learned Additional Sessions Judge.

3. Learned counsel for the petitioner. Mr. S. N. Mishra, has raised only legal points before me. His first contention is that the learned Court was not justified, after giving a finding of acquittal under the charge of forgery, to raise a presumption against the petitioner for his conviction under Sec. 409, Penal Code, relying on some interpolations in the receipts. In my opinion, this argument is well founded, when the prosecution failed to establish that the petitioner had made forgery or interpolations in those receipts, even after the examination of a handwriting expert, I do not think that any such adverse inference should have been drawn by the learned Judge so as to impute a motive to the petitioner for committing an offence under Sec. 409, Penal Code. Any way, this remark of the Court below would not weigh much because I find that the second point, raised by learned counsel, would secure acquittal of his client. He has argued that accepting the facts of the case at their face value no offence under Sec. 409, I. P. C., had been made out. For a criminal breach of trust by a public servant it is necessary that the public servant should commit criminal misappropriation or dishonest misappropriation because in the definition of criminal breach of trust, which is contained in Sec. 405 of the Code, it is given out that whoever being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property etc. etc. shall be said to commit criminal breach of trust. In this case the evidence shows that the collected money had not been misappropriated or converted to the use of the petitioner. He was ready with the money when he was asked about it.

4. It has been held in several cases that mer