AGARWALA, J. :- This, is a reference by the learned Assistant Sessions Judge of Kanpur in a jury trial. The facts of the case briefly stated are as follows : 2. The complainant Inder Singh, formerly resided at Lyallpur in West Punjab (Pakistan) and carried on business in cloth. He used to purchase cloth through the agency of a firm called Jhangiram Hukumchand carrying on business of pukka Arhatiyas at Bombay. The firm of Jhangiram Hukumchand was owned by three persons, namely, Hukumchand, now deceased, Tirathdas, opposite party, and one Ram Chandra. The firm as pukka Arhatiyas used to buy goods for their constituents from merchants at Bombay and used to make payment to the sellers for the purchases made by them. Sometimes the constituents would deposit money with the firm in advance to be accounted for later on and set off against future purchases. Once the complainant Inder Singh had deposited a sum of Rs. 14,000/- with this firm, and interest was paid by this firm on this amount. After the partition of India the complainant settled down at Kanpur.

On 22nd July 1949 the complainant entrusted a sum of Rs. 10,000/- to Tirathdas, opposite party, to be sent to Bombay for being deposited in the said firm. An entry relating to this transaction was made by Tirath Das in the books of the complainant and it was to the following effect :

"Lekha Jhangiram Hukumchand Bombaywale Sambat 2006, 10,000/. Sahi Jhangiram Hukumchand Akhri Das Hazar Kanpur men tumne Dia Miti Sawan Badi 12 Bombay Pathan Waste." This entry did not mention specifically for what purpose this money was handed over to Tirathdas. It was only mentioned that the money was handed over to him to be sent to the Bombay firm Jhangiram Hukumchand. The allegation of the complainant was that certain goods were intended to be purchased by the complainant through the agency of the firm Jhangiram Hukumchand, and this money was given so that it might be utilised for the said purchase.

The money was no doubt sent by Tirathdas to his firm at Bombay. There is an entry of the amount in the books of the firm. Certain rates had been quoted to the complainant by Tirathdas while he was at Kanpur, but the rates having meanwhile gone up the complainant considered that the purchase of the goods would not be profitable, and so he directed the firm Jhangiram Hukumchand not to purchase those goods but to keep the amount of Rs. 10,000/- in deposit with them till the complainant was able to obtain a licence for the sale of whole-sale cloth. The complainant obtained a licence for the sale of wholesale cloth in the month of December 1949, and sent his younger brother to Bombay to make purchases through the agency of the firm of the opposite party. Five bales of cloth were purchased.

The opposite party, Tirathdas and the deceased Hukumchand were asked to arrange for the payment out of the amount in deposit with them. But they did not do so with the result that the complainant had to pay the amount himself. The complainant then, so the prosecution story ran, went to Bombay and asked Tirathdas and Hukumchand why they did not make the payment as arranged and asked them to return the deposit money, Tirathdas and Hukumchand, according to the prosecution, asked the complainant to wait for ten days when the entire deposit money would be returned.

The complainant waited for ten days. But the deposit money was not returned, and so the complainant lodged a complaint in the Court of the City Magistrate at Kanpur for criminal breach of trust under S. 409, Penal Code against Tirathdas and Hukum Chand. The offence was tried by a jury. During the pendency of the proceedings Hukumchand died. The Magistrate committed Tirathdas, the opposite party, to the Court of session.

3. Tirathdass defence was that the financing partner was Hukumchand and that Ram Chandra and he were working partners. The profits and losses were to be in the ratio of ten annas for Hukum Chand, three annas for Ram Chandra and three annas for Tir