Bhandari, J. - (1.) THE decision of this case turns on the construction of the expression "entrusted" appearing in Section 405, Penal Code.
(2.) THE facts of the case are simple and not in dispute. On 21 -2 -1949 Jage Ram Respondent borrowed a cycle from Duni Chand complainant promising to return the same within a period of two or three days. He failed to fulfil his promise and the complainant accordingly reported the matter to the police. During the course of investigation, it transpired that shortly after borrowing the machine from the complainant the accused sold it to one Kashmiri Lal for a sum of Rs. 125/ -. The learned Magistrate came to the conclusion that on the facts found no case under Section 406, Penal Code, had been made out against the accused and directed that he be acquitted. The Provincial Govt. has come to this Court in appeal and the question before this Court is whether the Court below has come to a correct determination in point of law. In the course of his Judgment the learned Magistrate observed as follows: In the present case, the accused was not entrusted with the cycle. It was not a voluntary act on the part of Duni Chand to have the cycle in the custody of the accused relying on his honesty. On the other hand, the accused actually asked for the cycle for temporary use and it was given to him. Failure to produce it or its conversion would give rise to a civil liability but would not constitute a criminal offence as the essential ingredient of trust is absent. Accordingly I hold that the accused was not entrusted with the cycle. He Was only a borrower of the cycle.
(3.) THE view taken by the learned Magistrate appears to me to be wholly misconceived. Section 405, Penal Code is in the following terms: Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property, in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust'. The offence of "criminal breach of trust" may be broadly defined as the fraudulent appropriation of Anr. 's property by a person to whom it has been entrusted or into whose hands it has lawfully come. It is akin to cheating, theft and criminal misappropriation but differs from them in important respects. In criminal breach of trust the property is lawfully acquired or acquired with the consent of the owner, but dishonestly misappropriated by the person to whom it is entrusted. In cheating the property is wrongfully acquired in the first instance by means of a false representation. In theft the property is taken without the consent of the owner and the dishonest intention to take property exists at the time of such taking. In criminal misappropriation the property is innocently acquired, often casually and by chance, but by a subsequent change of intention the retaining becomes wrongful and fraudulent. The character of the crime depends on the secret intention of the parties which is often difficult to ascertain. To make out a case of criminal breach of trust it is generally necessary to show that the property belonged to some one other than the accused, that the accused acquired it lawfully or with the consent of the owner, that it was in the physical or constructive possession of the accused at the time of the conversion, that the accused occupied a fiduciary relationship, that his dealing with the property constituted a conversion or appropriation of the same to his own use or the use of any person other than the owner and that there was a fraudulent intent to deprive the owner of his property.;