The prosecution must prove dishonest misappropriation for a conviction under S.409 IPC, and the burden of proof in criminal cases lies with the prosecution.

1. The revision petitioner is the accused who was convicted by the Magistrate under S.409 I.P.C. and sentenced to undergo rigorous imprisonment for four months. Having failed in his attempt to challenge the correctness of the order in appeal he has moved this Court in revision.

2. The accused was the Executive Officer of the Thevalakara Panchayat. In that capacity he came into possession of a sum of Rs. 929-65 p. which he was bound to remit into the Government Treasury on 1st January 1963. The prosecution case is that he misappropriated the amount for twenty-two days before he sent the amount through a messenger. The accused while admitting that he came into possession of the amount as also his liability to deposit the amount in the Treasury on the first, pleads that he was prevented by a serious attack of fever which he contracted on the first and which developed into typhoid from the fifth, from personally remitting the amount or making proper arrangements to send it through messenger. He was putting forward that plea consistently from the very start even at the investigation stage and relied upon the evidence of Pw. 7 who treated him at the initial stages and Dw.1 under whose treatment he was thereafter. The courts below disbelieved the evidence of Dw.1 and found that the accused had misappropriated the amount as he failed to prove the fact of his illness.

3. "Where orders of conviction and sentence are based on concurrent findings of fact, this Court will be slow to interfere in revision unless the court is satisfied that the said findings are vitiated by errors of law or that the conclusions reached by the courts below are so patently opposed to well-established principles of judicial approach, that they can be characterised as wholly unjustified and even perverse."

Having heard the learned counsel for the revision petitioner, at some length and gone through the entire evidence I do feel that this is a fit case for Interference by this Court in revision.

4. To sustain a conviction under S.409 IPC. the prosecution has to prove that there was dishonest misappropriation or conversion by the person to his own use of the property entrusted or that there was dishonest use or disposal of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged or that he wilfully suffered any person to do so. It is too elementary to point out that for an offence of breach of trust the most essential ingredient to be proved is dishonest user of the amount. Mere retention, without the element of dishonesty cannot make it an offence of criminal breach of trust. Both the lower courts are agreed on this point that the prosecution did not adduce any evidence of dishonest conversion or fraudulent misappropriation, but both fell into an error in thinking that there is an automatic presumption that the retention of money for twenty-two days must necessarily have been with a dishonest intention. This is a wrong approach based on an error of law. The burden of proof in criminal cases is ever on the prosecution and guess work and unwarranted presumptions are no substitutes for positive proof. The insistence of both the courts on the accused to prove his innocence might be due to a mistaken notion about the application of S.106 of the Evidence Act which does not modify the ordinary rule that the prosecution has to prove the guilt of the accused in criminal cases. As observed by the Supreme Court in Shambhu Nath v. State of Ajmer AIR. 1956 Supreme Court 404:

"S. 106 is an exception to S.101. The latter with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and S.106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the know