HARRIES, J. - (1.) THIS is a petition for revision of an order of a learned Presidency Magistrate convicting the petitioner under Section 406, Penal Code and sentencing him to rigorous imprisonment for two months and to pay a fine of Rs. 200. In default of payment of the fine, the accused was sentenced to undergo a further period of 16 days' rigorous imprisonment.
(2.) THE petitioner was a tailor and according to the prosecution the complainant entered into a contract with the petitioner whereby he was to provide the petitioner with 800 yards of khaki drill which the petitioner was to use for making shirts for which the petitioner was to obtain a sum of annas ten per shirt. Delivery was to be made within one week. The complainant alleged that though he had delivered the material, the petitioner bad refused either to return the material or the shirts if they had been made out of the material. The defence of the petitioner was that he had done work previously for the complainant for which he had not been paid; further, that he had not been paid for the work of making shirts out of this material. The actual cost of the work of making shirts out of the material supplied which is the subject -matter of this charge is said to be Rs. 57 -8 -0. According to the petitioner there was a further sum of Rs. 150 due in respect of earlier work.
(3.) THE learned Presidency Magistrate held that it had not been established that anything was due from the complainant to the petitioner in respect of the earlier work and that finding has not been challenged. It was however, urged that the petitioner could not be guilty of criminal breach of trust in respect of the material which had been handed over to him to be made into shirts, because he bad a lien upon that material for his charges. Admittedly, the complainant did not pay the cost of making these shirts, neither did be at any time tender the amount.;