LODHA, J. - (1.)SATYANARAYAN, accused respondent, was prosecuted in the Court of Sub-Divisional Magistrate, Ratangarh for an offence under sec. 409, Indian Penal Code. The case was eventually transferred to the Court of Munsif-Magistrate, First Glass, Ratangarh who, after trial, convicted the accused under sec. 409, Indian Penal Code, and sentenced him to six months' rigorous imprisonment and a fine of Rs. 150/- in default of payment of fine one month's rigorous imprisonment.
(2.)AGGRIEVED by his conviction and sentence the respondent filed an appeal in the Court of Additional Sessions Judge, Churu, who has acquitted the accused of the offence under sec. 409, I. P. C. The State of Rajasthan has, therefore, filed this appeal from the order of acquittal.
The facts of the case lie within a narrow compass. The accused was clerk in the cattle pound of the Municipal Board, Ratangarh from 13 8-1958 to 18-3-1959 and during this period he realised Rs, 620. 12 on account of auction money and Rs. 424. 50 paise on account of penalty and provision for cattle. Thus he realised a total amount of Rs. 1044. 62 paise. It appears that by a resolution dated 16-3-1959 the services of the accused as well as a few other employees of the Municipal Board were dispensed with. It further appears that a few notices were sent by the Municipal Board to the accused to deposit the amount lying with him but those notices were not served. Ultimately the notice dated 26-5-1959 was served upon the accused on 30-5-1959 and thereupon on 1-6-1959 he made an application to the Executive Officer, Municipal Board Shri Ramsingh Rathore that he had brought the record and the amount of Rs. 1044 62 paise lying with him which may be deposited. He further submitted an explanation that he had been on leave from 21st March, '50 and that his wife and his father were ailing and it was during this period that he had been retrenched from the service of the Municipal Board about which he had got information a little late. He further stated that notice dated 26-5-1959 had been served upon him only the previous day and that he had hastened thereafter to bring the record and the money lying with him. On this application the amount of Rs. 1044. 62 paise were deposited in the Municipal Board the next day i. e. 2-6-1959. On 4-6-1959 this matter was placed before the Municipal Board, Ratangarh which was of the view that the accused had not deposited the amount of the Municipal Board lying with him in time and should therefore be penalised. One month's pay of the appellant was forfeited along with the amount of the Provident Fund and interest accrued thereon. But the Board was of the view that no criminal proceedings should be launched against the accused as he had given a good explanation for depositing the amount late viz, that his wife and father were ailing and so also he himself was not in a sound state of health. Thus the matter rested there. However, on 3-6-1959 one Sitaram sent a letter by post to the Station House Officer, Ratangarh that the accused had dishonestly misappropriated the Municipal Board's money and therefore he should be punished. After recording the statement of Sitaram, the Station House Officer registered a case under sec. 409, Indian Penal Code on 17-6-1959 and after some investigation challaned the accused in the Court of Sub-Divisional Magistrate, Ratangarh as stated above.

In support of its case the prosecution has examined eight witnesses in all. The accused denied having committed the offence, but produced no defence. The learned trial Magistrate came to the conclusion that it was the bounden duty of the accused to have deposited the amount lying with him as soon as his services had been terminated by the Municipal Board by its resolution dated 16-3-1959, and merely because there were no rules on the point as to within how much time the amount should be deposited, the accused was not justified in retaining the amount for such a long time. He also held that it was not proved that the accused was on leave. In short his conclusion was that without any reason the accused retained the money from 18-3-1959 upto 1-6-1959 and therefore he had rendered himself liable to punishment under sec. 409, Indian Penal Code.

The learned Additional Sessions Judge, on appeal, held that the prosecution had not proved that the accused misappropriated or converted the amount in question to his own use and thereby appropriated it dishonestly. He found that there was no evidence on record worth the name on the basis of which it could be said that the accused had misappropriated the amount in question dishonestly to his own use or that he dealt with it for some other purpose. He further held that mere detention of money on the part of the accused was not by itself sufficient to hold that the accused was guilty of criminal breach of trust. In this view of the matter he set aside the conviction and sentence passed by the trial court and acquitted the accused.

In this appeal the learned Deputy Government Advocate has urged that the accused failed to deposit the money in the Municipal Board not only during the period when he was in service i. e. from 13-8-1959 to 18-3-1959 but even thereafter when his services had been terminated, he continued to hold the money and deposited it only when he was served with the notice by the Board on 30-5-1959. This fact by itself, according to the learned Deputy Government Advocate, raises a presumption that the accused had dishonestly misappropriated the Board's money. He has argued that it is not necessary for the prosecution to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him over which he has dominion. He has submitted that entrustment of property and failure, in breach of an obligation to account for the property, entrusted, if proved, may in the light of other circumstances lead to an inference of dishonest misappropriation or conversion. In support of his contention he has referred to J. M. Desai vs. State of Bombay (1 ). The proposition submitted by the learned Dy. Govt. Advocate is no doubt supported by the authority cited by him and it is correct that it is not necessary for the prosecution to prove the precise mode of conversion, mis appropriation or misapplication by the accused of the property entrusted to him, for the purpose of establishing a charge of criminal breach of trust. But the question still remains whether there are any circumstances in this case which might justifiably lead to an inference of dishonest misappropriation or conversion. As was observed by their Lordships in the case referred to above, the principal ingredient of the offence being dishonest misappropriation or conversion, which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation, to account for the property entrusted, if proved, may in the light of all other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. The question, therefore, is whether in the present case the prosecution has brought to light any circumstance which may raise an inference of dishonest misappropriation of the money in question by the accused. We might observe straight off that no circumstances whatever have been placed on the record to raise such an inference. The accused has admitted that he realised the amount in question from time to time as alleged by the prosecution. He has further stated that as soon as the notice of the Municipal Board was served upon him he deposited the amount and had never put it to his own use and that it was lying safe. There is nothing on the record to show that the accused ever expressed his inability, on being asked to deposit the amount, to produce it. It is also not clear from the record as to when the accused had been served with the notice that his services had been terminated. In these circumstances all that we can say in favour of the prosecution is that the accused did not deposit the amount in time and detained the money. There is no clear evidence on the record, even to show whether there were any rules or there was any established practice in the Municipal Board as to the time for deposit of the money by the cattle pound clerk in the Municipal Board Office. The question therefore is - Can the accused be convicted for an offence under sec. 409, Indian Penal Code, merely because he retained the money for some time which he should not have. In this connection we may refer to Champaklal Nemchand vs. The State (2 ). It was observed in this case that, - "temporary retention of money would not by itself amount to Criminal Breach of Trust, 'retention of property entrusted would amount to the offence under sec. 405, I. P. C. only if from the fact of retention of property, the second ingredient, namely dishonest misappropriation or conversion etc. , can be correctly inferred. The mere failure to deposit the money would not, therefore prove dishonesty and there must be other circumstances to prove the element of dishonesty and unless the element of dishonesty is proved the mere retention of money would not by itself constitute the offence of criminal breach of trust. " With respect, we agree to these observations.

We may further refer to a ruling of the Mysore High Court in P. Duru-gappa vs. State of Mysore (3) in which the learned judge observed as follows: - "to establish an offence under S. 409, I. P. C. the prosecution must prove that the accused misappropriated or converted the amount in question to his own use and that too dishonestly. To 'misappropriate' means 'improperly setting apart for one's use to the exclusion of the owner. 'convert' means appropriation and dealing with properly of another without right as if it is his own property. "dishonesty may be proved by evidence or may be presumed from the circumstances but under no circumstances can it be assumed as a matter of course. Where it is not clear from the evidence what the accused did with the money during the period he was in possession of it, the Court cannot assume, in absence of any evidence to show or circumstances to infer, that he misappropriated the amount dishonestly. "

Again In re Muthuswami Udayan (4) it was observed that mere retention of money is not itself sufficient to draw a conclusion that the accused was guilty of criminal breach of trust. It is hardly necessary to point out that in criminal cases the onus of proof generally never shifts and it is always on the prosecution, to prove beyond reasonable doubt the guilt of the accused. The same is true in cases of criminal misappropriation also, and it is the duty of the prosecution to prove the misappropriation either by a direct evidence or by circumstances which may lead to such an inference. No authority taking a contrary view has been cited before us and we find it difficult to accept that mere late payment or mere retention of money by a person would bring his act within the mischief of criminal misappropriation or conversion.

For the reasons given above we do not find any force in this appeal, and dismiss it. .

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