V.P. Tyagi, C.J.
1. This revision of Panachand is directed against the judgment of the learned Additional Sessions Judge, Bundi whereby he upheld the conviction passed by the Additional Munsiff Magistrate No. 2, Bundi for an offence under Section 409 I.P.C.. The petitioner was convicted for the said offence and sentenced to two years rigorous imprisonment and a fine of Rs. 200/-. But on appeal looking to the circumstances of the case, the learned Sessions Judge reduced the sentence to 3 months rigorous imprisonment but increased the punishment of fine to Rs. 1,000/ from Rs. 200/-.
2. The prosecution case was that on 6th of June, 1969 the petitioner was entrusted with an amount 0f Rs. 397.67 for the purpose of disbursement as the pay of the three constables, namely, Devaram. Hamir Lal and Mohan La) who had gone to Bundi. It is alleged that the petitioner went to Bundi with the said amount but he returned to Nenva without disbursing the amount and made an entry in the Roznamcha that he had paid the money to the aforementioned Constables. Hamir Lal when came to Nelwa demanded his salary and the Sub-Inspector told him that his salary had already been paid to him through the petitioner Panachand After having come to know that the petitioner had not paid the salary to the Constables, a case was registered under Section 409 I.P.C. against the petitioner. The petitioner was arrested and at the time of this arrest money 10 the tune of Rs., 240/- in all was found with the petitioner Petitioner's brother Ram Narain PW 4 with whom Rs. 400/- is said 10 have to been deposited by the petitioner was present at the time of the arrest and he paid the balance of the amount which was entrusted to the petitioner by paying Rs. 157.67 and thereafter it is said that with the permission of the Superintendent of Police, the pay of the Constables was disbursed. These facts are not in dispute that the petitioner was entrusted with the money to be paid to the Constables at Bundi and that he did not make the payment though he had gone there for that purpose. It is also not disputed that the entry Ex P 8 was made by the petitioner that he had paid the money to the Constables at Bundi. It is in the evidence of Hamir Lal that when he returned to Bundi, he demanded his salary from the Sub Inspector. The petitioner was present at that time and the petitioner told him that the salary will be given to him after he had brought the revenue stamp to be affixed to the receipt.
3. PW 4 Ram Narain is the brother of the petitioner but he has come in the witness box on behalf of the prosecution and he has categorically deposed that the petitioner had deposited Rs. 400/- with him and on being called by the police he made good the deficiency in the amount which was entrusted to the petitioner by the Sub-Inspector by paying Rs. 157.67.
4. The 1earned counsel appearing on behalf of the petitioner urged that in this case the ingredients of Section 403 I.P.C. to make out a case of criminal breach of trust have not been proved by the prosecution. He contended that it was the duty of the prosecution to prove that the money entrusted to the petitioner was dishonestly misappropriated or converted to his own use. In the present case according to Mr. Dave who appears on behalf of the petitioner, the element of misappropriation is conspicuously missing. The accused petitioner had deposited the amount entrusted to him with his brother who had gone with the petitioner to Bundi. It was further argued that from Bundi the petitioner proceeded to Patan tc fetch his family members and, therefore, for safe custody he entrusted the amount to his brother which shows that he had no intention to misappropriate or convert the amount to his own use. As regards the entry made by the petitioner in the Roznamcha about the payment having been made to the Constables, his argument is that this entry though wrong, was made by him with a view to justify his TA and DA
5. The learned Public Prosecutor on the other hand contended that it will not be necessary for the prosecution in all cases to prove misappropriation and the circumstances show the criminal intention of the petitioner to misappropriate or convert the money to his own use. In the present case it is contended by him that entry made by the petitioner in the Roznamcha by itself is a proof of his intention that lie never wanted to return the money for the disbursement of the salary of the Constables and it is why he made an entry that the salary was paid to all the three Constables to whom the money was to be paid
6. PW 4 Ramnarain is the prosecution witness and when he says that he was given Rs. 400/- by the petitioner for safe custody, there is no reason why this statement should not be relied upon. From this statement it appears that though a wrong entry was made in the Rojnamcha by the petitioner but he never intended to misappropriate the money entrusted to him by the Sub Inspector to be disbursed as salary of three constables nor did he convert it for his own use. In these circumstances the necessary ingredient that the petitioner dishonestly misappropriated or converted the money for his own use, is conspicuously missing in this case. In these circumstances, the only wrong action of the petitioner is that he made wrong entry Ex P. 8 It is possible as Mr. Dave says, that the petitioner might be conscious of the fact that he would not earn his TA and DA in case he did not mention about the payment of the money to the Constables for which purpose he was specially disputed to go to Bundi and, therefore, in and anxiety to earn TA and DA he made this wrong entry and for this wrong entry, it is urged vehemently by Mr. Dave that the petitioner should not have been convicted for an offence under Section 409 I.P.C.. The petitioner had a guilty conscience when he reported that he came back to Nainwa without completing the task which was entrusted to him and that he untitled his trip to Bundi to bring his children from Patan, therefore this might be possible that he made a wrong entry in the Roznamcha to justify his trip to Bundi without entertaining a dishonest intention to misappropriate the amount for his own use. The entire episode shows that the money was intact with the brother of the petitioner and that the very day when the petitioner was arrested, the entire amount was surrendered to the Sub Inspector for the disbursement of the salary of the three Constables. In these circumstances, I do not feel it safe to uphold the conviction of the petitioner under Section 409 I.P.C..
7. The result is that the revision petition is allowed and benefit of doubt is given to the accused. He is acquitted of the charge under Section 409 I.P.C.. Sentence awarded to him for the said offence is set aside. The petitioner is on bail and he need not surrender to his bail bonds.