1. This is an application in revision by one Roshan Lal, in respect of his conviction under Section 408, Penal Code. He has been sentenced to one month's R.I. and to pay a fine of Rs. 60.
2. It appears that the applicant was the Karinda of one Mst. Asharfi Kuer, sister of Lala Madan Lal, complainant, and it was his duty to collect rents in the villages of Bamnoti and Girdharpur. A complaint was filed against him, in which it was alleged that he had committed criminal breach of trust in respect to Rs. 350 odd relating to the village of Bamnoti, and in respect to Rs. 79-8-11 relating to the village of Girdharpur. In defence it was pleaded by the applicant that the money alleged to be due from him in respect to Bamnoti had been legitimately spent by him in the interests of the estate, but that the complainant did not accept this plea and had compelled the applicant to make certain entries in the account books admitting his liability. He also pleaded that his salary for 15 months at Rs. 20 a month was due to him. As regards Girdharpur, he pleaded that he had offered to pay this sum to the complainant, but the latter refused to take it unless the whole sum of Rs. 436 odd were paid.
3. The trial Court acquitted the applicant in respect to the sum of Rs. 350 odd relating to Bamnoti, but it convicted him in respect to the sum of Rs. 79-8-11 relating to Girdharpur. The appellate Court set aside the conviction on the ground that the trial was illegal and the applicant was retried in respect to this sum of Rupees; 79-8-11. On 11th February 1935, he was convicted in respect to this sum and his conviction has been upheld in appeal. The main points taken before me in this revision are (1) that the applicant has all along been willing and ready to pay this sum to the complainant, and (2) that in any case there was no dishonesty on his part, in view of the fact that salary for 15 months was due to him. This latter point does not appear to have been taken before the learned Judge, except perhaps in an indirect and indefinite way in para. 8 of the grounds of appeal where it was pleaded that no dishonest intention had been proved; but a plea to this effect does appear in the written defence which the applicant filed at his trial. The applicant admitted at his trial that this sum of Rs. 79-8-11 was in fact due from him, but he pleaded that he had always been ready to pay it but the complainant had refused to accept payment on the ground that he was entitled to the whole sum of Rs. 436 odd. This plea does find some corroboration in the fact that a money order for Rs. 79-9-0 which was sent by the applicant to the complainant on 15th November 1934, was refused.
4. I am very much inclined to believe that the applicant was in fact always willing to pay this sum of Rs. 79 odd and that the complainant refused to accept it, unless the whole sum which he claimed to be due to himself were paid. Two witnesses for the complainant have stated that the applicant refused to pay this money on the ground that he had no funds with him. Even if this evidence be true, it is doubtful whether the applicant can properly be convicted under Section 408. He did undoubtedly raise a plea that his salary for 15 months was due to him. This point was put to the complainant and the latter has admitted that the applicant was in his service for 15 months and that he did not pay him his salary. Under Section 221, Contract Act, an agent is entitled to retain goods or other property of his principal until the amount due to himself for services in respect of the same has been paid or accounted for to him. In the circumstances, I think that the complainant had no good claim upon the applicant until the latter's salary was adjusted. The applicant would probably have found the means of paying this sum of Rs. 79 odd if the complainant had been willing to write off the Rs. 300 due for arrears of salary. I accordingly allow this revision and set aside the conviction and sentence. The applicant's bail bonds are hereby cancelled. The fine, if paid will be refunded.