Payment of money to a goldsmith for the purchase of gold and preparation of ornaments amounts to entrustment, while payment to a jeweller with a stock of gold and ornaments may be an advance of price.

WANCHOO, C. J.

( 1 ) THESE are six connected appeals by the State against the acquittal of Mithalal accused by a First Class Magistrate. As the main point involved in all these appeals is the same, we propose to dispose of them by one judgment.

( 2 ) THE case for the prosecution may be briefly stated. Mithalal is a goldsmith and carries on the work of preparing ornaments in Jodhpur. The six complainants in these six cases either gave gold only or gold as well as, cash or cash only to mithalal for the purpose of preparing ornaments. The case of these six complainants was that Mithalal misappropriated the gold or cash given to him and disappeared from Jodhpur. Consequently, they reported the matter to the police and Mithalal was prosecuted under Section 406, Penal Code.

( 3 ) THE Magistrate took evidence and framed a charge against Mithalal under section 406, Penal Code. But after the case was over, he did not decide questions of facts raided in these cases and acquitted the accused on the on the ground that there had been no entrustment to him as required by Section 405 Penal Code. He relied on the decision of the Calcutta High Court in -- kanai Lal v. The State, air 1951 Cal 206 (A ). The State Government has come up in appeal and it is contended by the learned Deputy Government Advocate that the Magistrate was wrong in acquitting the accused on the basis of Kanai Lal Duttas case (A)

( 4 ) THE argument on behalf of the state is that Kanai Lal Duttas case (A) has no application whatsoever in those cases in which gold was given to the applicant for preparation of ornaments. It is also urged that in the one case (Criminal Appeal no. 5 of 1954) where cash only was given, the facts justified the inference that there was entrustment of money and the decision in kanai Lal Duttas case (A), is not applicable.

( 5 ) SECTION 405 of the Indian Penal Code defines criminal breach of trust and the first ingredient that has to be proved in a case of criminal breach of trust is that there should be entrustment of property or dominion over property in any manner. Now, entrustment will arise whenever some thing whether it be money or any other thing is given to some person with some direction as to how it should be dealt with. This is also clear from Illust. (c) to Section 405. Penal Code which shows that where there is an express or implied contract between two persons that sum remitted by one to the other shall be, invested, according to the direction of the remitter there is entrustment of the sum remitted. In five of the six appeals before us, the complainants gave either gold to the goldsmith for making ornaments for them or gave gold and some money for the purchase of more gold for the preparation of ornaments. Where gold is given to a goldsmith whose business is merely to prepare ornaments, there is, in our opinion, clearly entrustment of that gold to the goldsmith for the purpose of preparing the ornaments desired by the person who gives the gold. Kanai Lal Duttas case (A) has no application whatsoever where gold is thus given to a goldsmith for preparing ornaments. It only deals with a case of payment of money. So far, therefore, as five cases in which gold was given are concerned there was clearly an entrustment at least of the gold and the order of the Magistrate will have to be set aside and the case sent back for retrial on the merits.

( 6 ) AS to the case in which only cash was given, we have to see how far Kanai Lal duttas case (A), can be applied. It may be noted that Kanai Lal Dutta is mentioned as a jeweller and not a goldsmith. Mithalal is, however, only a goldsmith, viz. a person who makes ornaments and is paid for his labour. In Kanai lal Duttas case (A), the learned Judges were of opinion that where money is given to a jeweller for preparation of a gold ornament, it was only an advance payment of the price and did not amount to entrustment of the money to the jeweller. It is, in our opinion, a question in each