ORDER Kendall, J.
1. This is a reference from the learned Sessions Judge, Allahabad, recommending that the charges framed against the three applicants, Raghunath Das, Bishwanath Prasad and Mt. Ram Devi be quashed. The charge was drawn as long ago as 10th May 1932, and is under Section 406, I.P.C, as against the first two applicants and under Section 406/109 as against Mt. Ram Devi. The reference order which was passed on 17th August 1932, shows that the Sessions Judge agreed with the contentions of the applicants that no offence of criminal breach of trust had been made out on the evidence brought for the prosecution, and that the charges framed by the Magistrate had no foundation. The case has been fully and carefully stated in the referring order, and it is unnecessary for me to do more than to repeat briefly its main ingredients. Raghunath Dass and Bishwanath Prasad were appointed executors under a will executed by the deceased Babu Ramji Das, whose widow, one of the beneficiaries under the will, is the third accused party. Included in the property left by the deceased was a sum of money in fixed deposit with the Allahabad Bank standing in the names of the deceased and his widow. Para. 4 of the will which relates to this fixed deposit runs as follows:
My wife the said Srimati Ram Devi will on my death be the malik of the whole in fixed deposit with the Allahabad Bank, Allahabad, standing jointly in my name and hers. She can appropriate the whole of the annual interest on that amount, but she will have no power to withdraw the principal amount. Bishwanath Prasad will have the power to withdraw (the) money from the bank and to deposit it and also to realize rent.
2. Mt. Ram Devi withdrew the whole of the principal sum in fixed deposit--as she was allowed to do under the rules of the Bank--and it was invested in the firm of Raghunath Dass and Bishwanath Prasad, the first two applicants. They have been paying to the widow interest at the rate of 6 per cent whereas the fixed deposit in the Allahabad Bank only produced 4| per cent. A complaint was made by a person not apparently interested in the estate of the deceased, on the ground that the widow had only a life interest in the property and that on her death it was to be utilized according to the will in founding a dharamshala. It was claimed for the prosecution therefore that the executors aided and abetted by the widow have misappropriated the fixed deposit, and the Magistrate was satisfied by the evidence brought for the prosecution that there was sufficient material for the framing of a charge. It is claimed that this evidence even if it he accepted, is insufficient to prove a criminal offence against any of the accused. It is pointed out that the proceedings have gone on in the Magistrate's Court from 4th April 1932, until 11th May, and it is suggested that the executors, who are residents of Delhi and Mirzapur have had great difficulty in presenting themselves in Court over this long period and that they are being unnecessarily harassed owing to a private grudge, into a discussion of which I need not enter. There can be no doubt that the High Court must be very reluctant to interfere in revision in a case which has not been completed. In fact Mr. K.D. Malaviya who has argued the case in support of the reference, admits this, but he claims that a conviction cannot legally be obtained on the evidence for the prosecution. He has pointed to a decision of their Lordships of the Privy Council in Louis Edouard Lanier v. King (1914) AC 221, in support of this plea. That case has certain common features with the present one, and it was held that the facts did not on any just or legal view of them warrant a conviction and the grounds of distinction between the categories of liability in a civil as distinguished from a criminal suit appeared...to have been left out of the judicial view, so that justice had gravely and injurisously miscarried by the conviction, of the person accused. It is necessary for me to point out however that in that case the accused person was authorized by a power of attorney to collect and invest the minor's property. There is a question in the present case of whether the executor was authorized by the will to withdraw the fixed deposit and to re-invest it. It appears to me that the decision of their Lordships of the Privy Council is authority for holding that, if the executor was authorized to withdraw and re-invest the money and did reinvest it in his own firm, he might still be innocent of criminal misappropriation even if the accounts of his own firm showed--as apparently they do in the present case--that his firm was urgently in need of liquid capital. Their Lordships have remarked:
The mixture of the funds of another with one's own funds may be in many cases natural and proper, in other cases convenient but irregular and in the third, both irregular and criminal.
3. To decide in which of these three categories the present case falls it is necessary to have the whole of the case before the Court. It would obviously be improper for me at this stage to indicate the conclusion that ought to be drawn from such evidence as I have seen. I cannot agree with the learned Sessions Judge that the mere fact that liability for the amount of the fixed deposit was acknowledged by the firm in which it was invested, disposes of the question of criminal misappropriation. I am asked to decide that the case for the prosecution cannot possibly be established; in other words, that the will does not authorize the executor to withdraw the fixed deposit, and that the re-investment of the money in his own firm was made not for the benefit of his own firm but for the benefit of the estate. I can only say that at the present stage, and without prejudice to the future proceedings of the case, I am not in a position to say in which of the three categories enumerated in the judgment of the Privy Council the action of the applicants must be held to fall. I am therefore not justified in interfering with the proceedings at this stage and in quashing the charges drawn. The reference therefore is rejected and the papers may be returned; the hearing of the criminal case may proceed.