N.M. Golvalker, J.
1. This is a revision petition by the accused whose appeal against his conviction under Section 406, Indian Penal Code, has been dismissed by the Sessions Judge, Hoshangabad.
2. The accused came to be prosecuted in these circumstances. On 8-3-1959 Shri Shukla, Naib Tahsildar, seized unsawn 1141 logs of timber from the possession of the accused at his timber stall at Pipariya. Admittedly the seizure was made as it was suspected that the seized timber had been illicitly felled about which a revenue enquiry was being made. After seizure the timber was duly hammer marked and entrusted to the accused on his executing a supratnama agreeing to produce the timber wherever and whenever called upon to do so. Later on, on 5-8-1959 the accused himself moved a petition before the Naib Tahsildar complaining of theft of 300 logs out of the logs entrusted to him. On enquiry the report of alleged theft was found to be baseless.
On the contrary it was learnt that the accused had himself appropriated some logs to his own use, and when he was later on called upon to Produce the logs he was able to produce only 595 logs out of 1141 logs entrusted to him. Since he was unable to account satisfactorily for the missing logs and as enquiry revealed that he had appropriated them to his own use contrary to the terms and conditions of entrustment, he was prosecuted for having committed criminal breach of trust with respect to the timber logs.
3. The trying Magistrate accepted the prosecution evidence and held the accused guilty of the offence punishable under Section 406, Indian Penal Code. In appeal filed by the accused his conviction was upheld and his appeal was dismissed. However the sentence of 4 months rigorous imprisonment by the trying Magistrate was set aside and only the sentence of fine was maintained.
4. The accused has filed this petition challenging the correctness of his conviction. The State has also filed a revision petition praying for enhancement of the sentence on the ground that mere sentence of fine in the circumstances of the case was not adequate. The petition filed by the State was registered in this Court as Criminal Revision No. 516 of 1960 and was heard along with this petition. Hence the order in this petition shall also govern the disposal of that revision petition.
5. In the circumstances on record, the prosecution of the accused and his conviction, in my opinion, are both misconceived and unsustainable. In any case the conviction could not be sustained.
Admittedly the logs were seized from the possession of the accused on suspicion that they were illicitly felled. So then the first thing that the prosecution had to prove was that the logs did not belong to the accused and he had obtained them by some unlawful means. This naturally could have well been proved in the enquiry in which they were seized by the Naib Tahsildar. After establishing that fact in that enquiry then only the accused could have been properly prosecuted for criminal breach of trust. For, ought we know the enquiry may prove abortive with the result that the logs would be required to be released.
In that event there would be no question arising as to any criminal breach of trust by the accused. It cannot be disputed that the property in respect of which criminal breach of trust can be committed must be either the property of some person other than the person accused, or the beneficial interest in or ownership of it must be in some other person and the offender must hold such property on trust for such other person or in some way for his benefit. In the instant case this essential ingredient of the offence levelled against the accused is completely lacking. As the facts stand on record, the accused will have to be Presumed to be the owner of those logs and so long as that presumption is not conclusively rebutted, he could never be held guilty of committing criminal breach of trust with respect to his own property. In this view, therefore, the very prosecution of the accused before completing the enquiry before the revenue authorities concerned in the matter of illicit felling of the trees was wholly misconceived. Consequently the conviction of the accused could never be sustained.
6. The result, therefore, is that I set aside the conviction of the accused and quash the entire proceedings in the lower Courts. Since the prosecution has been pending since 8-9-1959 I do not direct the proceedings to pond awaiting the result of the enquiry into the illicit felling of trees. The prosecution shall be at liberty to start prosecution afresh, if necessary, after that enquiry. The accused for the present shall, therefore, be set at liberty and any fine amount, if recovered, shall be refunded to him.
7. In view of this result, no order on the petition of the State is called for and the same is dismissed.