Horwill, J.

1. The petitioner was convicted under Section 409, Penal Code, of committing criminal breach of trust by dishonestly misappropriating a sum Rs. 118-15-0 entrusted to him in his capacity as Head Clerk, District Court, North Malabar; and the offence is said to have been committed between 2nd December 1940 and the 17th of that month. His appeal was dismissed, the conviction and sentence being affirmed. The principal question which arises in this petition is whether the learned Magistrate, purporting to act under Section 540, Criminal P.C., exercised his discretion improperly in admitting the evidence of a person who was examined as C.W. 1. The prosecution let in evidence through P.Ws. 8 and 9 that on 14th December 1940, the petitioner took a sum of Rs. 2 out of the bag in which he kept his money as Head Clerk and gave it to P.W. 9 to purchase seven stamp papers, which were subsequently handed over to P.W. 8. Formal evidence was given to this effect and there was not much cross-examination on this point. The reverse sides of the stamp papers however show that six of them wore purchased in the name of one Appu Nair and one in the name of a still different person. There w