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ALLAHABAD HIGH COURT
P.C. BANERJEE, J.
Harnam Singh & Anr. - Appellants
Versus
Emperor - Respondent
Decided On : 23-05-1918
JUDGMENT
P.C. Banerji, J. - The applicant in this case has been convicted u/s 40 5 of the Indian Penal Code. What happened was this. Certain moveable property was attached in execution of a decree. The officer of the Court who made the attachment placed the properly in charge of the accused. When the time for suction-sale of the property arrived, notice was issued to the accused to produce the property. They evaded service of the notice on several occasions and the property was not produced. For this they have been held to be guilty of criminal breach of trust. The accused were no doubt entrusted with the attached property, but they would not be guilty of criminal breach of trust unless they dishonestly misappropriated or converted the property to their own use or dishonestly used or disposed of it in violation of any direction of law describing the mode in which the trust which they undertook was to be discharged. In the present case the property was not misappropriated or converted to the use of the accused, nor was it used or disposed of in any manner contrary to the terms of the trust. Therefore, they could not be convicted u/s 406. They were no doubt guilty of contempt of Court and their offence amounted, if at all, to one u/s 172 of the Indian Penal Code. For this they could only be sentenced to one month's simple imprisonment. They have already undergone rigorous imprisonment for nearly three weeks. The result is that I set aside the conviction, acquit the accused of the offence u/s 406 and convict them u/s 172 of the Indian Penal Code. The imprisonment already undergone is more than sufficient for their conviction under this section. The sentence of fine is remitted and the accused need not surrender to their bail. The fine, if paid, must be refunded.
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