The property entrusted does not pass until the option to take the goods is exercised and a cash payment is made.

JUDGMENT

Ewart Greaves, J. - The appellant has been convicted by a Presidency Magistrate of an offence u/s 406 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a term of two years. Section 406 under which the appellant was convicted relates to criminal breach of trust and criminal breach of trust as defined in Section 405 means dishonest misappropriation or conversion by some one of property entrusted to him or over which he has been given dominion.

2. The facts of the present case are as follow: On the 31st of May last year the appellant called at Messrs. Boseck and Co. a jeweller in Chowringee Road and represented that he was a relation of the Raja of Naldanga and stated that he wanted to buy some jewellery for his daughter's wedding and that he wanted the goods for approval as his daughter could not come out. According to the prosecution story the appellant selected some articles of jewellery and signed a receipt for them in the inspection book and took them away. He subsequently returned on the 1st of June, brought back two of the articles taken by him on the 31st May of which he did not approve and selected some further articles of jewellery which he took away also on approval. On the 4th June, the accused came again to the shop and took some further articles which he put on his person. It subsequently transpired that on the 2nd June, he had sold the articles taken away by him on the 31st May and the 1st June, as to the articles taken away on the 1st June at prices about a third of those at which they were priced by Messrs. Boseck & Co. Under these circumstances the appellant has been convicted and it is now contended on his behalf that he was wrongfully convicted of criminal breach of trust under the provisions of Section 406 of the Indian Penal Code and reliance is placed on the provisions of Section 78 of the Indian Contract Act and Illustration (b) thereto. It is said that when a person is given articles of jewellery, as in the present case, for approval, nothing being agreed or said as to the terms of payment, the property in the goods passes to the person entrusted with the goods, whenever he exercises his approval and elects to take the goods and, it is said, that thereupon the trust ceases and the property becomes the absolute property of the person to whom the goods have been handed over and reliance is further placed on two cases that were cited to us in the argument, namely, Ex parte Wingfield in re Florence (1879) 10Ch.D. 591 : 40 L.T. 15 : 27 W.R. 316 and Krikham v. Attenborough (1897) 1 Q.B. 201 : 66 L.J.Q.B.149 : 75 L.T. 543 : 45 W.R. 213 . Both those cases are cited as authorities for the proposition that where property has been handed over on approval the property passes to the person to whom it is entrusted as soon as he has elected to approve of the property and that in these circum stances no case of criminal breach of trust arises. As against this we have been referred by the Deputy Legal Remembrancer to the case of Weiner v. Gill (1906) 2 K.B. 574 : 75 L.J.K.B. 916 : 95 L.T. 438 : 22 T.L.R. 699 : 11 Com. Cas. 240 which, it is said, closely resembles the facts of this case. It is necessary under the circumstances to see on what terms the goods were entrusted or handed over to the appellant on the 31st of May and the 1st of June of the last year. The first prosecution witness Mr. Ball, who is a partner or Director of Messrs. Boseck and Co., states that he saw the appellant on the 31st May and that the arrangement was that the goods approved Of were to be paid for in cash. Mr. Ball states with regard to the goods taken away on the 1st June that the appellant stated that he would pay for these goods together with those previously taken away. In cross-examination he stated that there was no writing that the payment was to be in cash and with regard to the visit on the 1st June he states that the cashier was ordered to make out cash bills as the accused was ready to pay and he deni