JUDGMENT Muhammad Rafiq, J.
1. This is an application in revision under Section 435 of the Criminal Procedure Code from an appellate order of the learned Sessions Judge of Cawnpore maintaining the convictions and sentences passed on the applicant under Sections 406 and 408 of the Indian Penal Code. The facts which led to the conviction of the appellant are as follows. The applicant Bimala Charan Roy was the water-works inspector in the service of the municipality of Cawnpore on Rs. 140 per mensem. He rented two houses situated in one compound No. 6/2 7/8 in mohalla Patkapur in the city of Cawnpore. He himself lived in the larger house and let the other house to two brothers Surendra Nath and Birendra Nath Banerji at a rent of Rs. 3 per mensem. It seems that water was laid on to the larger house but not to the smaller one. The tenants of the smaller house wanted the water to be laid on to their house and spoke about it to the applicant. The latter tapped the principal main which ran on the east side of the compound No. 6/2 7/8 and connected it by means of an old pipe to the smaller house and to his garden on the west. The work was done under the orders of the applicant by the plumbers and fitters of the municipality, who were his subordinates. No report of the new connection was made to the municipality. The applicant represented to his tenants that the municipal tax for the two pipes, namely one in the smaller house, and the other in the garden, came to Rs. 9, and that he and they, the tenants, should pay the tax in equal shares. The tenants agreed to the proposal of the applicant and paid him Rs. 9 for two years. Some time in 1911 the applicant was either dismissed by the municipality or left their service. It was after the severance of his connection with the municipality that it was discovered that water was laid on to the smaller house and the garden, for which no tax had been paid to the municipality. After a careful investigation a prosecution was started against the applicant which resulted in his conviction. The facts just related have been found by the two lower courts against the applicant. The learned Counsel for the applicant has advanced two contentions in support of the applicant that the offence deducible from the facts found by the lower courts is one that falls under Section 45 of the Water Works Act, or one of theft, or cheating. No offence under Section 406, or 408 of the Indian Penal Code, it is said, has been made out. I do not agree with the contention of the learned Counsel for the applicant. The applicant was a member of the municipality at Cawnpore and one of his duties was to supervise and check - the distribution of water from the municipal water-works. In other words he had dominion over the water belonging to the municipality. He deliberately misappropriated that water for his own use and for the use of his tenants, for which he paid no tax and about which he laid no information to his employers nor obtained permission for tapping the main. In thus misappropriating municipal water the applicant clearly committed the offence described in Section 408 of the Indian Penal Code. The conduct of the applicant in realizing money from his tenants on account of water tax and misappropriating that money to himself clearly falls under the offence described in Section 406 of the Indian Penal Code. There was a distinct contract between himself and his tenants that the money which the latter were paying was paid on account of water tax, and the applicant in keeping that money committed criminal breach of trust. It may be that the offences of applicant may be punishable under the Water-Works Act also, but that does not vitiate the conviction under sections, 406 and 408 of the Indian Penal Code.
2. The second point urged on his behalf and urged with great force is That he being a literate respectable man should not have been dealt with so severely as he has been by the lower court. The learned Counsel for the applicant urges strongly the claim of his client for the reduction of the sentence. I do not think that because the applicant is literate he should be dealt with less severely than an ignorant man. In fact his position as a servant of the municipality and as a literate person calls for a more severe sentence than if he were an ignorant man unconnected with the municipality. The application fails and is rejected. The applicant must surrender to his bail before the Magistrate.