Sahai, J.

[1] The two appellants, Banwari Lal and Mahendra Nath who are brothers, have been convicted by the Additional Sessions Judge of Agra for an offence under Section 420 I.P.C. and have been sentenced to three years' R.I. and a fine of Rs. 25,000/- each; in default of payment of fine they have been directed to undergo further R.I. for one year. Out of the fine, if realised, Rs. 48,000/- are to be paid to the complainant firm Makhanlal Radheylal. The appellants were further charged for an offence under Section 487 I.P.C. tout were acquitted of the same.

[2] The facts of the case are that Banwari Lal appellant had a ghee-grading station at Khurja working under the style of Ghamandilal Banwarilal. The licence was suspended on 2-4-1946 under suspicion, because the accused showed having graded a quantity of ghee which appeared to the authorities to be impossible during the short period in which it was alleged to have been graded.

[3] Thereafter, the accused shifted their business from Khurja to Agra and rented Mustajab building in Raja Ki Mandi which they not only used for their office and godown but also for their residence. The business in Agra was started in two names, namely, Mahendranath & Co. (for dealing with Bharat Bank Ltd.), and Ghamandilal/Banwarilal (for dealing with firm Makhanlal Radheylal). Firm Makhanlal Radheylal is a firm of money-lenders.

[4] The two appellants on 16-5-46 entered into an agreement with the aforesaid firm Makhanlal Radheylal, The agreement was signed on behalf of the firm Ghamandilal Banwarilal by Mahendra Nath. This agreement is marked Ex. P. 1. There is no controversy that this document was signed by Mahendra Nath. From a perusal of the agreement Ex. P. 1 it will be manifest that the terms offered to the firm Makhan Lal Radheylal on behalf of the accused were very attractive.

According to this agreement a double advantage was promised in the shape of Arhat and interest each at annas twelve per cent per month. The rent of the godown as well as the insurance charges of the goods insured therein were also to be borne by the accused. The accused further agreed that they would be responsible for any loss, damage or deterioration or other defect in quantity.

It was also agreed between the parties that the accused would obtain money to the extent of 75 per cent of the price of the tins of pure ghee that would be pledged with the creditor firm. The business between the two firms under the aforesaid agreement continued till October 1946 when the accounts were cleared leaving a debit balance of Rs. 29/- against the accused.

[5] On 13-12-1946 a fresh agreement was entered into between the parties which is Ex. P. 2 on the record. This agreement was on terms similar to the previous one with this modification that the accused were given facility of storing the pledged goods in their own building at Raja Ki Mandt.

It was further agreed that the money will be paid on demand within twenty four hours. This agreement was signed by both the appellants, Banwari Lal and Mahendra Nath, on behalf of the firm Ghamandilal Banwarilal. In pursuance of this agreement nearly a lakh of rupees were taken by the accused on pledging tins of Ghee which were stored at Raja Ki Mandl.

[6] It appears that the complainant did not agree, for some reason or the other, to enter into any further transaction by which the money was to be advanced to the appellant if the pledged goods were to be stored at Raja Ki Mandi. But they had no objection to advance money if the goods were stored at Yamuna Kinara godown.

On 7-2-1947 the accused pawned a railway receipt of 500 tins and took an advance of Rs. 40,000/-. It is alleged on behalf of the prosecution that on 5-3-1947 the accused took back the railway receipt and pledged 600 tins in lieu of that and further on the same date took a further advance of Rs. 8,000/- and gave -271 tins more as security.

[7] It appears from the evidence on the record that as the accused were not returning the