Entrustment requires a contract of entrustment between the parties and refusal to return a loaned article is a breach of the contract of loan and not punishable under Section 406, I. P. C.

( 1 ) THE applicants, who are brothers, have been convicted under Section 406, I. P. C. It has been found against them that they went to Hansraj, who is goldsmith, made a false representation to him that their mother wanted a necklace of a certain design for getting the design copied for the wife of Shyamendra applicant, that Hansraj gave them a necklace of the required design which they promised to return in the evening and that subsequently they refused to return it. It was also found that the mother of the applicants had died long ago and that Shyamendra was not married. The applicants denied having made any representation to Hansraj and having taken any necklace from him.

( 2 ) IT was contended that from the facts proved no offence of Section 406, I. P. C. , is made out, that they may at the most be guilty under Section 420, I. P. C. , and that their conviction cannot now _be altered to one under Section 420 I. P. C. because they were not charged with it.

( 3 ) SECTION 406 I. P. C. prescribes punishment for criminal breach of trust which is committed when a person being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates it, or dishonestly uses it in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any legal contract, express or implied which he has made touching the discharge of trust. There are two acts, either of which amounts to breach of trust, (1) of dishonestly misappropriating and (2) of dishonestly using in violation of any direction of law or of any legal contract. Here the applicants by dishonestly refusing to return the necklace and by denying that they had taken it at all have misappropriated it and if they were entrusted with it they would be guilty of criminal breach of trust and no question would arise whether they had made any legal contract touching the discharge of trust. The real question, therefore, is whether the applicants were entrusted with the necklace by Hansraj. It has been held in Lake v. Simmons, (1927) A. C. 487, that in such a case there is no entrastment. The facts in that case were that E. posing to be a married woman, which she was not, and to be the sister of the fiancee of a certain navy officer, who did not exist, became a customer of L. , that one day she told him that her husband wanted two necklaces on approval and L. gave her two and that she criminally misappropriated them. E. was convicted for larceny by a trick on being found that she had dishonest intention from the very beginning. L had insured the necklaces but the insurers were exempted from liability in the case of loss by theft or dishonesty committed by any customer in respect of goods "entrusted" to him by L. L. sought to recover the price of the necklaces from the insurers who denied the liability by contending that the loss was by dishonesty committed by his customer E. in respect of the necklaces entrusted to her by L. The House of Lords rejected the contention of the insurers and held that when L. gave the necklaces to E. in order that her husband might see them he did not "entrust them" to her. Viscount Haldane observed that " entrusted is not necessarily a term of law", that "in its most general significance all it imports is a handing over the possession for some purpose which may not imply the conferring of any proprietary right at all", that "entrusting may, of course, introduce a bailment, conferring some definite but restricted proprietary right", that "it is a question, then, of the contract entered into" (at p. 499), that L. thought that he was dealing with a different person, the wife of Vander Borgh and never intended to contract with E. , that consequently there was not the agreement of her mind with that of L". that was required in order to establish any contractual right at all that L. was entirely deceived as to the identity of the person with whom he was transacting and that consequen