George Knox, J.
1. Sita Ram has filed an application for revision of an order passed by the Sessions Judge of Gorakhpur, dated 22nd September 1919, whereby he has sentenced the said Sita Ram to undergo six months' rigorous imprisonment on each of three separate counts. The sentences are to run consecutively. They are passed under Section 409 of the Indian Penal Code. There is also a sentence of solitary confinement and fine.
2. The grounds taken on which I am asked to revise are:
(1) Because the evidence does not warrant the conviction of the applicant and the propriety of the finding, sentence and order;
(2) because no offence against the accused has in a proper view of the case been made out; and
(3) that the sentences are unduly severe. The applicant at the time the offences were committed was Sub-Post Master of Bridgemanganj, Sub-Post Office. In the course of his official work be had to issue certain cash certificates.
3. The certificates were issued at Rs. 7-12-0. He was asked to encash them at a time when under each certificate the holder was entitled to receive Rs. 826. He encashed the certificates and handed over Rs. 7-6-6 on each certificate and took a receipt to the effect that he was paying over Rs. 8-2-6 while in fact ha only paid over to each man Rs. 76-6, It is contended that inasmuch as no loss or damage has been caused to Government no offence has been committed under Section 409. Now Section 409 is criminal breach of trust by a public servant, and in substance the contention is that he may or may not have paid to the bolder of the cash certificates less than they were entitled to but that he had committed no criminal breach of trust so far as the Government was concerned. I fail to understand this contention. The Government had made over to the accused upon each of these cash certificates the sum of Rs. 8 2-6. It had given this money to the accused as a trust and he had accepted it as a trust binding him to pay to each certificate holder the sum of Rs. 8-2 6. Out of that sum he paid Rs. 7-6-6 and there was a sum of annas 12 remaining with the accused as money entrusted to him for the purpose of payment to the cash certificate holder. He put annas 12 of this trust money into his pocket and did not pay it to the holder of the cash certificate. So far as appears from the record, he has not even now paid this deficient sum to the complainants. That is the offence which the accused has committed. He has not carried out the trust reposed in him by the Government but has diverted a portion of that trust to his own private ends. The learned Vakil who appears for the applicant has, in support of his contention, referred to the case of Queen-Empress v. Ganpat Tapidas 10 B. 256. That case differs very much from the one before me and can be easily distinguished. At the time when the accused diverted a portion of the trust reposed in him, the date was the 25th June 1919. It is now all but six months since that portion of the money entrusted to him for payment to the complainants has been retained by the applicant. There is nothing in the record to show that the complainants, Ram Prasad Bhole and Thakari, consented to the retainment; by the accused of this money. Anyhow the annas 12 which the Government entrusted to the accused for payment to the certificate holders is part payment, of the cash certificates has not been paid to them. That money has been retained by the accused. With all due respect to the learned Judges who decided the case referred to, I am not prepared to agree with them when they say that the appellant before them had fulfilled the trust reposed in him by Government. However, the evidence in that east is not before me and there may have been something in it which justified the statement. In the case before me I hold that the very fact of the accused taking annas 12 and putting it in to his own pocket, instead of paying it over to the holder of the cash certificate, was a criminal breach of trust. I see no reason to interfere and dismiss the application.
4. It is contended that the punishment is unduly severe. The punishment for an offence under Section 409 may amount to transportation for life or to ten years' rigorous imprisonment. Bearing this in mind, I do not find the punishment in this case is unduly severe.