RANAWAT, J. - (1.) THIS is an appeal under sec. 417 Cr. P. C. by the State from the judgment of the Additional Sessions Judge of Jalore dated the 24th of July, 1958, by which he set aside the conviction of Mohan under sec. 406 IPC. and the sentence of one year's rigorous imprisonment passed by the First Class Magistrate, Sanchore on the 29th of May, 1958.
(2.) THE findings of fact of both the lower courts are unanimous. It has been held by the lower courts that Anada entrusted 20 Tolas of gold to the accused Mohan on the 2nd of January, 1957 for selling the said gold at Tharad and for returning the proceeds thereof to the complainant Anada. THE accused Mohan failed to return the gold or its sale proceeds as agreed to by him and he told the complainant Anada that no gold was ever received by him for sale. Anada lodged a complaint on the 17th Feb. 1957 at Police Station, Sanchore, and he lodged a complaint in the court of the First Class Magistrate, Sanchore on the 21st of May 1957. THE First Class, Magistrate, Sanchore, after holding a trial, convicted the accused on these facts. THE learned Additional Sessions Judge held that no offence under sec. 406 IPC. was made out on those facts. In the opinion of the Additional Sessions Judge the accused Mohan was authorised to sell the gold that was entrusted to him by Anada and the sale-proceeds of the gold could not be regarded as the property entrusted in the meaning of sec. 406 IPC. In this view of the law, the learned Additional Sessions Judge recorded an order of acquittal. In this appeal, Mr Chatterji has contended that sale proceeds of the property entrusted is included in the definition of the term 'property' in the meaning of sec. 406 IPC. He has referred to the decisions in Dwarkadas Haridas Vs. Emperor (1), Dharamdas Lilaram Vs. Emperor (2), Tenkatagurunatha Sastri, In re. (3) Mohammad Hadi Husain Vs. King Emperor (4), Khitish Chandra Deb Roy Vs. King Emperor (5) and G. Sivanandan Vs. State (6 ). The counsel for the accused has referred to the decisions in Balthasar C. v. Emperor (7), K. V. Ramaswami Naick Vs. Rangaswami Chettiar (8) and Sm. Nirmalabai Misal Vs. The State (9 ). He has contended that the authorities cited by him are in support of the view adopted by the learned Additional Sessions Judge. He has also urged the following points - (1) The first information report of the 16th of February 1957 has not been placed on the record by the prosecution; (2) There was delay in the making of the complaint which remained un-explained; (3) The charge that was framed by the magistrate was defective inasmuch as the property described therein was both the gold and its sale proceeds; (4) The evidence of the three prosecution witnesses Anada, Dheera and Bachcha was not properly appreciated inasmuch as some inconsistencies and discrepancies appearing in the statements of the aforesaid witnesses were not taken note of by both the lower courts; (5) Though there was an entry in the bahi of Anada regarding the purchase of gold, there was no corresponding entry in the said bahi regarding the entrustment of gold to the accused Mohan; (6) There was no evidence to show that the rate of gold at Tharad was higher than that at Sanchore so as to make the prosecution story a probable one; (7) Punia, who was a witness regarding the refusal of Mohan, was not produced at the trial. The learned counsel has contended that on account of the various points urged by him in reply to the prosecution case, the order of the lower court acquitting the accused should be maintained. We have read the evidence of Anada, Dheera and Bachcha (PWs. 5, 3 & 2) and we think the findings of both the lower courts below cannot be regarded as incorrect. There are no material discrepancies in the statements of the aforesaid three witnesses. The learned counsel has pointed out that there is omission in the statement of Anada inasmuch as he did not mention that he told Mohan while entrusting gold that the bazaar of Tharad was a big one, while Bachcha stated so. This omission cannot be regarded to be a discrepancy in the statements of the two witnesses. The learned counsel has also referred to the statement of Dheera and has urged that the witness admitted that he did not hear any talks of Anada and Mohan and the statements of Bachcha and Anada regarding talk of entrustment should therefore be taken to be not true. The argument of the learned counsel has no basis for Dheera has expressly stated that gold was handed over by Anada to Mohan in his presence and Mohan told Anada that he would return the sale proceeds to him. What further talks took place between the two, the witness could not say, for he came a little later as is evidenced by the statement of Bachcha. No further inconsistency has been pointed out by the learned counsel. The first information report that was lodged by Anada on the 16th of February, 1957, has not been placed on the record but its absence from the record is not much material, nor is the point of delay of any consequence under the circumstance of the case. Entrustment of gold took place on the 2nd of January, 1957 and the first informa-ation report was lodged on the 16th of February 1957 soon after the accused declined to account for the gold entrusted to him. There is an entry in Anada's a book regarding purchase of gold. No question was put to Anada regarding there being no entry in his book of account of entrustment of gold to Mohan. Had this point been made the basis of attack on behalf of the defence, some query should have been made at the time Anada was in the witness box. Whether there is any such entry in his book of account cannot be inferred from the material on record. If Anada had been asked, he would have been able to say whether there was an entry and if there was no entry, what was the explanation for it. Similarly, nothing can be said on the basis of the evidence on record whether the bazaar of Tharad is bigger or smaller and also as regards the rates of gold at the two places. The evidence of Punia is also not material and non-production of that witness cannot be regarded to be fatal for the prosecution. We do not find there in such a defect in the charge as to vitiate the trial. The learned magistrate described in the charge the property entrusted as gold and its sale-proceeds in place of gold or its sale-proceeds. The error is very slight and it could not have prejudiced the accused in any manner. Coming to the point which prevailed upon the mind of the Additional Sessions Judge, it may be noted that the word 'property' in the meaning of Sec. 406 IPC. is comprehensive enough to include the sale-proceeds of the property entrusted in cases where the sale-proceeds remain with the bailee on account of the bailor to be dealt with in accordance with his directions. The authorities which have been referred to by the learned counsel of the accused do not support his case. In Balthasar, C. v. Emperor (7), the observations are rather favourable to the prosecution. It has been observed that - "but even assuming, as we think it ought to be assumed, that the word 'property' includes furniture or the value thereof, even then it could not be said that the appellant had disposed of the furniture or the value thereof, namely, the sale proceeds, in violation of his contract dishonestly. . . . . . . . . . . . " The learned Judges acquitted the accused on account of there being defect in the charge sheet in not mentioning the sale-proceeds and merely describing the property entrusted in it. As regards the sale-proceeds of property entrusted, the learned Judges were in no doubt, that they were included in the term 'property'. In K. V. Ramaswami Naick and another vs. Rangaswami Chettiar (8) cotton was entrusted to the creditor of the bailor for selling it and for returning its price after paying off the outstandings of the bailee. The cotton was sold and the sale-proceeds were not returned as agreed to between the parties. It was held by the Madras High Court that the act of selling the cotton did not imply misappropriation of cotton and and failure to account for the sale proceeds was also not necessarily an act of misappropriation and the liability of the bailee was a civil one. Having regard to the facts and circumstances of that case, the court came to the conclusion that there was no evidence of misappropriation. However, the decision cannot be regarded to be an authority for the proposition that the sale-procesds cannot be regarded to be included in the term 'property' in the meaning of Sec. 406 I. P. C. In Suit. Nirmalabai Misal Vs. The State (9), certain ornaments were handed over to a lady on approval which she failed to return for sometime. A criminal complaint was instituted against her and a charge was framed. She applied for quashing the charge and the application was turned down by the trial court and the same order was upheld on revision by the Sessions Judge. She then filed a revision petition in the High Court and having regard to the fact that her husband was a creditor of the bailor of goods and the lady made purchases of ornaments from that shop from time to time and that there was considerable delay in lodging a complaint, it was held that misappropriation was not established against the accused. She was considered to be a buyer of the goods by application of Set. 24 of the Sale of Goods Act. The decision cannot be considered to be an authority for the proposition which is urged before us by the learned counsel of the accused and which has been accepted by the lower appellate court. We may refer to the decision in Dwarkadas Haridas v. Emperor (1), which is clear authority for the proposition that sale-proceeds are included in the term 'propetry'. In that case, certain goods were entrusted to the accused under an agreement to sell them and to obtain money for them which he was to hold on account of complainant subject to deductions of certain charges. It was held that when the accused received money by selling the goods, although he did not receive it actually from the complainant, he was entrusted with it within the meaning of Sec. 405 I. P. C. The other cases cited by Mr. Chatterji are also similar to the decision in Dwarkadas Haridas v. Emperor (1 ). It may be noted that though gold was entrusted to the accused in the instant case, it was agreed to between the parties at the time of entrustment that the accused would sell the gold and return the sale-proceeds to the complainant. The sale-proceeds after the gold was sold can be considered to be exactly in the same position as the gold at the time of the entrustment and the sale proceeds should therefor be considered to be the property entrusted. The accused was a near relation of the complainant being his brother-in-law and he committed criminal breach of trust when he dishonestly misappropriated the gold or its sale-proceeds in breach of the direction under which gold was entrusted to him. A clear case of an offence under sec. 406 IPC. has been made out against the accused and the learned Magistrate, First Class, Sanchore was right in convicting him. We allow the appeal and set aside the acquittal of the accused ordered by the lower appellate court and restore the order of Magistrate, First Class, Sanchore. The accused is on bail and he shall surrender to it and be sent to jail to undergo the remaining portion of his sentence. . ;