V.G. Oak, C.J. - (1.) THIS criminal revision arises out of a case of loss of cattle. Two bullocks belonging to Azimuddin were lost from his compound in village Nagla Rai, district Muzaffarnagar. He started a search for the bullocks. Next Cay Gulab and Yasin accused approached Azimuddin and told him that he could get back his bullocks, provided he was prepared to spend some money. The complainant accepted the proposal. At 3 P.M. the complainant paid a sum of Rs. 400/ - to the two accused persons. The accused asked the complainant to come for the bullocks at about 3 A.M. Accordingly, the two accused delivered the two missing bullocks to Azimuddin at 3 A.M. A report was lodged at the police station. The two accused were prosecuted Under Sections 380, IPC and 215, IPC. Both the accused pleaded not guilty. They were convicted by the Judicial Magistrate, Kairana Under Sections 380, IPC and 215, IPC. Under Section 380, IPC each accused was sentenced to rigorous imprisonment for six months. Each accused was sentenced to rigorous imprisonment for six months and a fine of Rs. 250/ - or further rigorous imprisonment for three months in default of fine Under Section 215, IPC. The sentences were ordered to run concurrently. In appeal the 2nd Addl. Sessions Judge, Muzaffarnagar upheld the conviction and sentences Under Section 215, IPC. Conviction Under Section 380, IPC was altered to conviction Under Section 411, IPC. Under Section 411, IPC each accused was sentenced to rigorous imprisonment for two months. In other respects, the appeal was dismissed. Yasin and Gulab have, therefore, come to this Court in revision.
(2.) MR . G.C. Dwivedi appearing for the Applicants urged that, on the findings recorded by the learned Sessions judge the accused could not have been convicted. During the course of his judgment the learned Sessions Judge observed: Under the circumstances of the case, it would not be safe to raise presumption Under Section 114, Indian Evidence Act regarding the accused persons having committed theft in respect of bullocks in question. On that footing the accused were not convicted Under Section 380, IPC. The learned Sessions Judge recorded a conviction Under Section 411, IPC. Mr. G.C. Dwivedi contended that since the accused have not been found guilty of theft, they could not be convicted either Under Section 411, IPC or Under Section 215, IPC. Section 411, IPC provides for punishment for dishonestly receiving stolen property. "Stolen property" has been defined in Section 410, IPC: Property, the possession whereof has been transferred by theft, or by extortion, or by robbery and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as 'stolen property'.... It will be seen that the scope of stolen property is wider than theft. There may be a case of stolen property, although no offence of theft has been committed. Property shall be designated as stolen property even where the principal offence is criminal misappropriation or criminal breach of trust. In the instant case there is no question of criminal breach of trust. We may, therefore, enquire whether there was any offence of criminal misappropriation.
(3.) SECTION 403, IPC provides punishment for the offence of criminal misappropriation. Section 403, IPC states: Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished.... The term "dishonestly" has been defined in Section 24, IPC: Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'.;