Walsh, Acting C.J. and Neave, J.
1. This is an appeal against an order of the Subordinate Judge of Agra setting aside a decree passed by the Munsif of Agra, and returning the plaint for presentation to the proper court. The facts alleged in the plaint were that the defendant, who is the brother-in-law of the plaintiff, had borrowed from him ornaments to the value of Rs. 500, on the occasion of his son's marriage, for the purpose of presentation and show, and had promised to return them two months after the marriage. This promise was not kept, and the plaintiff brought this suit asking that the defendant might be made to return the ornaments or to pay Rs. 500.
2. The plaint was filed in the court of the Munsif. One of the issues framed was whether the suit was cognizable by that court. The Munsif held that it was, on the ground that the facts disclosed an offence of breach of trust committed by the defendant. In appeal the learned Subordinate Judge has dissented from this finding. In our opinion his view is the correct one. The only possible reason for holding that the suit was excluded from the jurisdiction of the court of Small Causes is that given by the learned Counsel for the appellant, that it is a suit which comes within the definition of Article (35), Sub-clause (ii) of the second schedule of Act IX of 1887, that is, that the act complained of is an offence punishable under Chapter XVII of the Indian Penal Code. The sections of the Indian Penal Code under which the learned Counsel seeks to bring it are Sections 403 and 405. He has himself scarcely attempted to argue that it comes under the former of these sections. With regard to the latter, it is to be observed that the plaintiff himself has not suggested that his brother-in-law has actually made away with the ornaments in question. He goes no further than to say that he has failed to return them. We are not prepared to hold that a borrower, who merely detains property lent to him beyond the period within which he was expected to return it, is guilty of the offence of criminal breach of trust. In these circumstances it would appear that the case is not one which is- excluded from the jurisdiction of the Court of Small Causes. The plaint should therefore have been filed in that court, and the present appeal must fail. Having regard, however, to the broad facts of the case and the alleged conduct of the defendant, we make ho order as to costs, but direct that the costs in this Court and in the courts below abide the result.