JUDGMENT

1. This is an appeal by one Arab who has been convicted by the Third Additional City Magistrate of Karachi, of an offence under Section 406, Penal Code, and sentenced to six months' rigorous imprisonment. I admitted this appeal because on the facts of the case it appeared to me that this was more an offence of cheating than a criminal breach of trust. But even though I think the section appropriate is Section 420, Penal Code, I can see no reason to interfere with the sentence of six months' rigorous inprisonment which has been passed.

2. The facts cannot reasonably be disputed upon the evidence on the record. Briefly, the appellant went to the house of the complainant and said that he was working as a tinner on the Ramchandra Temple Road, and asked if the complainant had any work to give him. The complainant then in the presence of his brother-in law, Lachoo, and his neighbour, Ramchand handed over to him certain utensils to be repaired. The appellant stated that he would return the utensils that very day but did not. The complainant made inquiries on the Ramchandra Temple Road of the tinner under whom the appellant had said he was working, but was told that the appellant was not working there. The complainant took no further action until 24th August last, the appellant having come to him in the first instance on 20th July 1941. But on 24th August the appellant appeared again, and this time he was arrested and handed over to the police. The appellant stated that he was not a tinner, but a beggar of good character, and that he was arrested as a result of mistaken identity. He does not allege enmity on the part of witnesses. But there appears no reason to suppose that this is a case of mistaken identity. He came in the first instance in the afternoon. The, complainant must have had every opportunity of identifying the man to whom he handed over utensils for tinning. Ramchand the neighbour of the complainant was there and also Lachoo, the brother-in-law, and it was because the complainant identified the appellant and he was corroborated by Lachoo and others, that the appellant was arrested after he had reappeared. The appellant did not at the time claim that he was a victim of mistaken identity. The fact that when the appellant's house was searched nothing was found is not of much importance in view of the time which had elapsed when he was arrested. Further, it appears from the judgment that the appellant had certain peculiarities of face and figure which makes mistaken identity improbable. The appellant brought certain, evidence of alibi which, however, dearly failed.

3. The question, then, is as to what offence the appellant has committed. It is clear that he obtained these utensils valued at Rs. 14-12-0 by a trick. He represented that he was a tinner and would repair them, when he was not a tinner and did not repair them. Once the appellant had obtained these utensils by means of a trick, the offence of cheating was completed, I do not see how he could be convicted of an offence under Section 406, Penal Code, with respect to these same utensils. It is true that the provisions of section 405, Penal Code, which define "criminal breach of trust," are wide: "Whoever being in any manner entrusted with property or with any dominion over property." I do not think a person is entrusted with property within the meaning of Section 405, Penal Code, when he obtains possession by means of a trick. A trust implies confidence placed by one man in another. It implies necessarily that the confidence was freely given and that there is a true consent. There is no true consent if confidence is obtained as a result of a trick. I am supported in my opinion by a Full Bench case of the Madras High Court Emperor v. John Mclver A.I.R. 1936 Mad. 353. In that case the question was as to whether an accused who had been acquitted of cheating could be convicted of criminal misappropriation on the same facts, and the answer was that he could not. In t