R.L. Narasimham, C.J.
1. This is a revision against the appellate judgment of the Sessions Judge of Sambalpur maintaining the conviction of the petitioner under Section 406, I. P. C, and the sentence of fine and imprisonment passed on him by a First Class Magistrate, Sambalpur.
2. The petitioner and his father (since dead) are goldsmiths residing in Sambalpur town. The prosecution case was that on 5-9-1959 the complainant (property) Bajranglal Agarwala entrusted with them 10 bharis, 4 as and 5 rati of gold for the preparation of some ornaments. The petitioner and his father handed over to him a receipt (Ext. 1) in token of his having received the gold and also promised to get the ornaments prepared within fifteen days. It was alleged that they neither prepared the ornaments nor returned the gold. After giving evasive replies on several occasions ultimately the petitioner and his father denied even having received the gold. On these allegations the two lower Courts thought that as the receipt was signed by the petitioner and his father jointly there was entrustment of the gold to both of them and as admittedly the gold was not returned, the petitioner was guilty along with his father of an offence under Section 406, I. P. C.
3. Even if the entire prosecution case is believed. I am not satisfied that the offence of criminal breach of trust u/s. 406, I.P.C. has been established beyond reasonable doubt.
As pointed out in several decisions (see Kanhaiya Lal v. Emperor, AIR 1937 Oudh 331 and Rex v. Krishnan, AIR 1940 Mad 329) the main distinction between civil liability on the one hand and criminal breach of trust on the other lies in the existence of dishonest intention that is to say that mental act of fraudulent misappropriation in the latter case and the absence of the same in the former. As this is the... essential ingredient of the offence of. criminal breach of trust the prosecution must prove the existence of the dishonest intention beyond reasonable doubt. It will not suffice for the prosecution merely to prove the circumstances which may be consistent either with the dishonest intention of the accused or the absence of such intention. It is true that dishonest intention cannot be directly proved and has to be inferred from the conduct of the accused both before and after the date of the alleged entrustment and also from the surrounding circumstances. But, as is well known, mere difficulty in proving is no excuse for not proving conclusively the essential ingredient of the offence. Mere apart from proving the sub- sequent conduct of the petitioner in delaying the return of either the gold or the ornaments and eventual repudiation of the entire transaction the prosecution has led no evidence whatsoever to show that the intention of the petitioner was dishonest throughout.
On the other hand the very fact that the receipt (Ext. 1) was given when the gold was taken from the complainant would show that it was a bona fide transaction between a goldsmith and his customer. The goldsmith was not bound to return the very piece of gold handed over to him. He was bound only to produce ornaments of that weight, or if he failed to do so, to return gold of the same weight and quality. The entire evidence adduced, by the prosecution is therefore consistent with the alternative view that this was a simple case of bona fide transaction though subsequently due to some other reason the petitioner was not able to fulfill his part of the contract. This case is hardly distinguishable from a single case of breach of contract where a person having received money from some other person with a promise to repay it within a certain date, fails to repay the same in pursuance of the contract or eventually even goes to the extent of denying having received the money. Unless some other circumstances are proved from which the necessary dishonest intention can reasonably be inferred the use of the machinery of the criminal Court for the purpose of realisation of one's dues from another person is not proper.
For these reasons the revision is allowed, the conviction and sentence are set aside and the petitioner is acquitted.