( 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 misapp