1. In this case one Tulsidas Chhaganlal was accused of criminal breach, of trust as a clerk or servant. He was the gumasta of one Motilal and admittedly received on his account a sum of Rs. 107-9-9 on or about the 1st February which sum according to the expressed or implied terms of his contract with his employer, he was bound to account for or deliver into the possession of his employer after a reasonable interval-which, apparently according to the admitted practice, was within a day or two. The complainant Motilal after an absence from, home, had a dispute with the accused which ended in the dismissal of the latter : and it is now admitted that the accused retained in his possession the sum above mentioned from 2nd February up to the 23rd May following its receipt. Now this retention by itself would be primd facie evidence of conversion to his own use, in the absence of anything to negative it and to show that the possession was not on his own account. Because, consistently with the terms of his contract, it was understood, that the sums to which his Master was entitled, should not be retained by the accused for more than a very much shorter period : and certainly in the case of a dismissed servant, the retention of the money was not prima facie consistent with an admission of his Master's right to its immediate possession. Then we also find that two days after his dismissal, the accused made a claim on the Master for a sum of Rs. 9 and odd, admitting his liability to the Master to the extent of only Rs. 10 or 11. That in itself implies an intention to treat the Rs. 107-9-9 as his own and a denial of his Master's claim to the Rs. 107-9-9 which remained in the possession of the accused. The accused alleged and attempted to prove that this sum was handed over to the complainant's wife on the night of its receipt. It has been urged with considerable strenuousness by the learned pleader who appeared for the accused that this allegation ought not to form the ground of any inference as to dishonest intention on the part of the accused, as having been merely in selfdefence against an unproved charge, and not as setting up a dishonest claim to the money itself. Giving all possible weight to the fact that the accused may have been actuated in that statement by some other wish than merely a wish to retain the money for himself, we think that there is sufficient proof of his conversion of the money to his own use prior to that. For in his demand made on the complainant for wages as if no suchsum as Rs. 107-9-9 were due, the accused treated or attempted to treat the Rs. 107 as his own in violation of his trust-That this was dishonestly done is the natural inference to be drawn from the necessary consequence of the act of accused which was to cause wrongful loss to the complainant though it may be for a time only. There is nothing to rebut this presumption as to a dishonest intention in the accused, at the time he so retained the money without even intimating to the complainant that it was so retained on the complainant's behalf. But we now learn that, on the date of the judgment of the District Court, the accused restored Rs. 107-9-9 to the complainant. If we could assume that it was his intention from the first to restore the money ultimately, even then that would not in strictness suffice to secure his acquittal from a charge of criminal breach of trust, because there would have been wrongful loss, which the accused presumably intended, caused to the Master even by the temporary detention. And even if, as seems to be suggested on behalf of the accused, the money was retained by him out of spite or resentment, that in itself was a use by the accused of that money for his own purpose, causing and therefore presumably intended to cause wrongful loss to complainant. Thus technically we are unable to regard the defence now suggested as a complete answer to the charge on the admitted facts. But the return of the money enters very largely into our consideration of the question as to what sentence should be passed on the accused. We cannot avoid finding on the facts that he has committed criminal misappropriation by temporarily retaining the money which he was bound to return to the complainant, and which he retained without admitting his liability to the complainant of that sum. But the accused and his employer were embittered against each other and we think in consideration of his subsequent action a severe sentence is not called for.
2. We must therefore set aside the order of acquittal which appears to us to have ignored the circumstances which indicate a claim on the part of the accused to be under no liability to the complainant in respect of that money from the 2nd February to 23rd May, and a consequent intention on his part to appropriate the money instead of handing it over to complainant. The relations between accused and his master were, however, then strained and the latter appears to have acted in a way calculated to excite the resentment of the accused. Taking into consideration all the circumstances of the case as consistent with an intention on the part of the accused only temporarily to retain the money for the purpose of annoying and causing comparatively small loss to the complainant, we think that the sentence he has already undergone will be sufficient to mark that he has been convicted of an offence under Section 408, Indian Penal Code.
3. We accordingly reverse the order of acquittal and convict the accused under Section 408, Indian Penal Code, and pass the sentence for the period he has actually undergone imprisonment. With regard to the fine we reduce it to Rs.25, and direct that the accused in default do suffer one fortnight's rigorous imprisonment.