ORDER Asthana, J.
1. The applicants who are brothers and share-brokers and share dealers in the city of Banaras were convicted by a first class Magistrate of that District under Section 409, I. P. C. and were sentenced to 1 year's rigorous imprisonment and a fine of Rs. 1,000/-. They filed an appeal against their conviction and sentence before the learned Sessions Judge of Banaras. Their conviction linger Section 409 I. P. C., was set aside and in lieu of it they were convicted under Section 403, I. P. C. Their sentence was, however, maintained, They have now come up in revision.
2. It appears that the applicants were given a sum of Rs. 9,538-8-0 by one Shri Parmath Nath Sanyal, grand-father of the complainant who is also a resident of Banaras, for the purchase of -one hundred shares of Dhemo Moin Collieries at Rs. 16-13-0 per sham on the 29th August 1951 for a sum of Rs. 1.681-4-0 200 shares of Indian Cables at Rs. 15-15-0 per share on the 25th October 1951 for Rs. 3,187-8-0, and 10 Imperial Bank Contributory Shares at Rs. 466-6-0 each on 18th November 1951 for Rs. 4,683-12-0.
It is alleged by the prosecution that the applicants failed to deliver the share scrips and were putting off the complainant and his grandfather, and when on the 29th April 1953 they were threatened with criminal litigation they said that they were short of funds and had misappropriated the said shares by pledging them with their bankers and wanted time till the 7th May 1953 to deliver the same; and when on that date the complainant went to them for the share scrips they refused to deliver them.
3. The applicants denied that Rs. 9,533-8-0 had been given to them for the purchase of 100 shares of Dhemo Moin Collieries, 200 shares of Indian Cables and 10 Imperial Bank Contributory shares. They admitted that the order for the purchase of these shares along with others was placed, but they denied that the above amount was paid to them specifically for the purchase of the aforesaid shares; that Sri Parmath Nath Sanyal used to advance money in instalments towards his account and the aforesaid amount was also paid towards the running account and was credited in his account.
They admitted that the shares had not been delivered but they denied that any demand was made from them or that they had embezzled by pledging them. They also admitted that they neither delivered the shares nor returned the money and the reason for it according to them was that the account had not been settled.
4. Both the Courts below after a consideration of the entire evidence on the record Were satisfied that Rs. 9538/8/- was paid to the applicants specifically for the purchase of the above-mentioned shares. The trial Court was of the opinion that the amount had been paid to the applicants as share-brokers and, as such, they were trustees for that amount and as they had misappropriated it they had committed the offence of criminal breach of trust. The learned Sessions Judge did not agree with the trial Court that the applicants were paid the money as agents.
He was of the opinion that the amount was paid to them as principals and as they did not purchase the shares for which purpose the amount had been paid to them & misappropriated it they had committed the offence of criminal misappropriation, and so he altered the conviction from one under Section 409, I. P. C. to one under Section 403, I. P. C.
5. It has been contended before me that the amount had been paid to the applicants as advance for the purchase of the snares and in the circumstances it became their money and they had the right to spend it in any way they liked and the offence of criminal misappropriation could not be said to have been committed as there could be no criminal misappropriation in respect of one's own money. There is no doubt that if the amount was paid to the applicants as a part of the purchase money it became their property and they cannot be convicted for criminal misappropriation or criminal breach of trust.
The finding of both the Courts that the money was paid to the applicants specifically for the purchase of the shares is a finding of feet which has to be accepted by me in revision. The only question for consideration is whether this money was paid to the applicants as share-brokers and agents or as principals, and whether it became their property after payment. After going through the evidence on the record it appears to me that the amount was paid to the applicants as share-brokers and agents and not as principals and the finding of the trial Court on this point appears to be correct.
The orders which were given to the applicants by Sri Parmath Nath Sanyal for the purchase of the shares are on the record and are Exs. D-1 and D-2. It appears from an examination of these two documents that the applicants were given authority to purchase the shares on account of Sri Parmath Nath Sanyal and that the latter undertook the liability to cover any loss which might be incurred by the applicants on account of difference in prices and also agreed to pay the brokerage.
In case the applicants were principals there was no question of any brokerage. Learned Counsel for the applicants has relied on the contract notes Exs. P-1, P-2 and P-3 in which it is mentioned that the shares were purchased on account of Sri Parmath Nath Sanyal from themselves (applicants) as principals, and on the basis of these documents it was argued that they were not agents of Sri Parmath Nath Sanyal for the purchase of shares from someone else but that they themselves were principals and the amount was paid to them towards the price of the shares.
These documents were filled up by the applicants and I do not think that Parmath Nath Sanyalcan be held liable because the applicants chose to use the word 'principals' in these contract notes. It was argued on behalf of the opposite party that it appeared from an examination of these documents that the applicants were acting as brokers and not as principals and for this contention reliance was placed on the stamps on these contract notes which indicated that these contract notes were broker's notes.
I am not inclined to accept the contention on behalf of the applicants that the above amount was paid to them towards any running account and not specifically for the purchase of the aforesaid shares.
6. The question which then arises for consideration is what will be the position in case the above amount was paid specifically for the purpose of the shares and the shares were not purchased by the applicants nor the money was returned. Section 405, I. P. C., says:
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 person so to do, commits "criminal breach of trust'.
There is an illustration (c) to this section which runs as follows:
A residing in Calcutta is agent for Z residing at Delhi. There is an express or implied contract between A and Z that all sums remitted by Z to A shall be invested by A according to Z's direction. Z remits a lakh of rupees to A with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust.
7. In my opinion the facts of the present case are very similar to the above illustration. As already said above, the aforesaid amount was given to the applicants for the specific purpose of purchasing certain shares at certain rates but the applicants did not return the amount and misappropriated it. Learned Counsel for the applicants relied on Kanai Lal v. The State . In this case B instructed A, a jeweller, to make a gold chain and handed him Rs. 300/- towards the cost of gold and the cost of making it, A did not deliver the chain on the stipulated day nor did he return the money. A was, therefore, prosecuted for an offence under Section 406. It was held that though A was guilty of dishonour, able conduct in not making the chain, he could not be said to have misappropriated the money because when it was paid to him it became his. His obligation thereafter was to produce the gold chain. That he failed to do and B could recover the money from A as money paid on a consideration which had wholly failed.
That, however, would not make the act of A a criminal act, and as there was no entrustment in the case there could be no question of an offence under Section 406. Another case which has been relied on by him is State v. Tirath Das . In this case the complainant entrusted a sum of Rs. 10,000/- to Tirath pas, opposite party, to be sent to Bombay for being deposited in the firm of Tirath Das. An entry relating to the transaction was made by Tirath Das in the books of the complainant. The complainant did not mention specifically for what purpose the money was handed over to Tirath Das.
It was only mentioned that the money was handed over to him to be sent to the Bombay firm Jhangiram Hakumchand. The money was no doubt sent by Tirath Das to his firm at Bombay and there was an entry of the amount in the books of the firm. It, however, appeared that the money was not subsequently returned to the complainant nor it was utilised in the purchase of cloth as was subsequently desired by the complainant.
It was held that one underlying idea in Section 405 was undoubtedly this that the property which was the subject matter of entrustment, or in respect of which dominion was passed over to the accused, did not even for the time being become the property of the accused which he could use for his own purposes, and thus the section did not cover the case of a loan or of an advance of money when the borrower or the depositee intended to use or utilise that money, for the time being, till he was in possession of it, although he might have to return an equivalent amount later on to the Person making the advance with or without interest, or compensation for the Use thereof, and that in the present case there was no entrustment of money and as such the accused could not be convicted of the offence of breach of trust.
8. It will appear from an examination of the above authorities that in these cases money had not been entrusted to the accused for some specific purpose and as agent for carrying out that purpose. In my opinion the facts of the present case are distinguishable from the above cases. As already stated above, in the present case the money was entrusted to the applicants as share-brokers for the purchase of specific shares for the complainant and I do not see any satisfactory reason why illustration (C) mentioned above should not apply to the present case.
9. On behalf of the prosecution reliance has been placed on a decision reported in State v. Mithalal . In this case Mitha Lal, who is a goldsmith and carries on the work of preparing ornaments in Jodhpur, was given gold and cash for the purpose of preparing ornaments. He did not prepare the ornaments and misappropriated the gold and the cash.
It was held in this case that there was entrustment which arose whenever soixething, whether it be money or any other thing, was Liven to some person with direction as to how it should be dealt with, and thus where gold was given to a goldsmith whose business was merely to prepare ornaments, there was clearly entrustment of that gold to the goldsmith for the purpose or preparing the ornaments desired by the person who gave the gold, and that the offence under Section 406, I.P.C., was made out against the accused Mithalal.
10. It was further contended on behalf of the applicants that Section 406, I.P.C., was applicable only to those cases where specific property other than cash was entrusted to a person and that it was not applicable to money as it could hot be returned in specie. I am not able to accept this contention, in view of the clear illustration to! Section 405 which has already been quoted above. There can be no doubt that if money is paid as advance or as part-price for the purchase of certain property, then it becomes the property of the person to whom it is paid and it is open to him to utilise it- in any manner he likes and he cannot be convicted of criminal misappropriation or criminal breach of trust for not returning it.
If, however, the money is entrusted to a person for a specific purpose and is not paid to him to-wards the price of the property intended to be Purchased, it does not become his property but he is merely a trustee, and if he misappropriates it he renders himself liable for conviction under Section 406, I. P. C, In this view of the matter I am of opinion that the applicants were rightly convicted by the trial Court under Section 409, I.P.C.
In view of the fact that their conviction under this section has been set aside and they have been convicted under Section 403, I.P.C., which is a minor offence, and there being no appeal before me against the acquittal of the applicants under Section 409, I.P.C., I do not think it proper to alter the conviction of the applicants. I do not see any satisfactory reason to interfere in revision in this case.
11. This application is, therefore, rejected. At the applicants are on bail they shall surrender to it and serve their sentences. The fine if not already paid shall also be paid by them, and in default they shall undergo 6 months' further rigorous imprisonment as ordered by the lower Court.