1. This is an application in revision by one Sohan Lal. The applicant was tried and convicted by a Magistrate on a composite charge purporting to be laid under Sections 403/417, Indian Penal Code, and received concurrent sentences of imprisonment. On appeal, the learned Sessions Judge has maintained the convictions as recorded, but has set aside the sentences of imprisonment and imposed in lieu thereof cumulative sentences of fine aggregating Rs. 250. The essential facts may be stated as follows: Sohan Lal was the servant of a landholder named Musammat Sarvi Begam. There had been disputes between this lady and another co-sharer in her mahal, culminating in a partition which had finally been settled by the Revenue Courts and ordered to take effect from the month of July 1915. In order to avoid disputes between the parties in the interval before the partition was to take effect, the Collector had exercised his powers under Section 45 of the United Provinces Land Revenue Act, III of 1901, and appointed the other co-sharer, Mehar Chand, an additional lambardar for the mahal in which he and Musammat Sarvi Begam were both co-sharares, and of which Musammat Sarvi Begam had hitherto been the sole lambardar. The Magistrate who tried this case in the first instance thoroughly appreciated this point, but the learned Sessions Judge seems to have been under some misapprehension concerning it. There could not be a separate lambardar for the mahal known as 'Mahal Bindraban,' this being the name of the mahal assigned to Mehar Chand on partition, because no such mahal had yet come into existence. The intention of the Collector, no doubt, was that Mehar Chand should exercise all the powers, perform all the duties and enjoy all the rights of a lambardar in respect of that portion of Mahal Sarvi Begam which had been assigned to him under the partition. Under these circumstances, an employee of the Canal Department went to the village, bringing with him the jamabandis or statements of account, showing the arrears of canal dues requiring to be realised from cultivators belonging to Mahal Sarvi Begam. This work of realization is ordinarily performed by the lambardars, who are enabled, by the exercise of due diligence, to earn a small remuneration in the form of a percentage on the dues collected. In accordance with the Collector's order, the effect of which had been properly appreciated by the Revenue Authorities, two separate jamabandis or statements of account had been prepared, one for that portion of the mahal of which Sarvi Begam was lambardar, and another for that portion of the mahal of which Mehar Chand had been appointed additional lambardar. The official entrusted with the conveyances of these jamabandis handed them both over to Sohan Lal. The latter proceeded to make all the necessary collections for the entire mahal in the name of his mistress, Musammat Sarvi Begam. He paid the money so collected in at the Tahsil, received the percentage due to the lambardar for collections made with due diligence, and paid over the money so received to his mistress, Sarvi Begam. There is no suggestion that he made anything for himself out of the transaction.
2. He has been convicted of having deceived the canal official and thereby obtained possession of the jamabandi which was intended for Mehar Chand, and he has been further convicted of having criminally misappropriated that portion of the canal dues which was paid to him on account of collections made in Mehar Chand's division of the mahal. It is contended before me that both convictions are bad in law, and that in any case, the trial is bad, as the two alleged offences were not part of the same transaction and should not have been tried together. With regard to the alleged misjoinder of charges, my opinion is that the prosecution was entitled to ask the Court to go into the whole matter at a single trial, provided it took upon itself the burden of proving that all the facts alleged against the accused, were in fact so connected together as to form parts of the same transaction, or to be otherwise triable at a single trial under the provisions of Sections 235 and 236 of the Code of Criminal Procedure. This involves the further condition that, if the prosecution failed to make this out, the joint trial would be defective in law. In the view which I, take of the facts of this case, 1 need not labour on this point further. It seems to me that practically the prosecution assumed the burden of proving that the obtaining of a jamabandi for Mehar Chand's division of the mahal, was deliberately done by the accused Sohan Lal, in order to enable him to collect dues appertaining to the said division of the mahal and to deprive Mehar Chand of the opportunity of earning the lambardars remuneration in respect of such dues. I do not think that anything of the sort is made out by the evidence on the record. The Magistrate who tried the case was inclined to doubt the evidence of Muhammad Sadiq, the peon who handed over the jamabandis to Sohan Lal. The learned Sessions Judge sees no reason to disbelieve the witness; but obviously his evidence does not prove anything regarding Sohan Lal's intentions at the time when he accepted delivery of the two jamabandis. When it is sought to establish the offence of cheating on the basis, not of any false representation with regard to past events or existing facts, but on the basis of a promise as to something to be done in the future, the prosecution is often faced with this difficulty, that it has to prove that the person making the promise had no intention at the time of performing it. Assuming Muhammad Sadiq's evidence to be true as it stands, it would not, in my opinion, be safe to infer from this evidence that Sohan Lal did not at the time intend to pass on one of the two jamabandis left with him, to Mehar Chand. As regards the charge of criminal misappropriation, I am not prepared to hold that there is on this record sufficient evidence of dishonest intention on the part of Sohan Lal to warrant his conviction. The question of the respective rights and duties of the original lambardar and the additional lambardar of Mahal Sarvi Begam is not in itself absolutely clear, and may well have seemed extremely doubtful to the persons principally concerned. Sohan Lal was, after all, a servant acting under the orders and in the interests of his mistress. I am not prepared to assume against him that he knew he was causing wrongful gain to his mistress, or wrongful loss to Mehar Chand, by collecting these canal dues and receiving the remuneration therefor. There is no question in the present case of dishonest conversion of money to his own use by the person accused. The charge is, therefore, based on the words 'whoever dishonestly misappropriates'. The verb to appropriate' in this connection means setting apart for, or assigning to, a particular person or use; and 'to misappropriate,' no doubt means to Set apart for or assign to the wrong person or a wrong use, and this act must be done dishonestly. The evidence on the record does not satisfy me that when Sohan Lal handed over to his mistress the money, which was after all only the due payment for work which he had himself performed, he was acting dishonestly within the meaning of that word as used in the Indian Penal Code. I, therefore, accept this application, set aside the conviction and sentence in this case and acquit Sohan Lal of the offence charged. The fine, if paid, must be refunded.