Panchapakesa Ayyar, J.
1. I have perused the entire records and heard the learned counsel for the petitioner and the learned Public Prosecutor contra. Two Courts found the petitioner guilty under Section 406, Penal Code in respect of a gold jewel taken by him from P. W. 1, a goldsmith, on 18th April 1948 for showing it to his wife and placing an order for a similar jewel if she approved of it and failing to return it and retaining it with him towards some debts due to him by P. W. 1, and refusing to return it. He has been fined Rs. 150, and the entire fine is directed to be paid to P. W. 1 as compensation for the loss of the jewel.
2. The learned counsel for the petitioner urged that the lower Courts should have believed the evidence of the D. Ws. and held the jewel to be his and made from gold supplied by him I cannot agree. The lower Courts were right in disbelieving these D. Ws.
3. The next contention urged was that the petitioner has simply retained the jewel as security for his debt and will not be liable under Section 406, Penal Code in view of the rulings In re Adinarayana Iyer, 17 M. L. J. 418 : 6 Cri. L. J. 330 and Rex v. Krishnan : AIR1940Mad329 especially as he has produced the jewel in this Court, and it is intact though he is not willing to return it. The facts here are different from the facts in 17 M. L. J. 413 case. There a man willingly left a box in the accused's house and was not allowed to take it away before he paid his dues. That is analogous to a hotel-keeper's or lodging-house-keeper's lien over the luggage of customers and lodgers. Here the petitioner promised to return the jewel and broke his promise and retained it and claimed it to be his own. The ruling in : AIR1940Mad329 clearly says that wherever a thing is utilised for a purpose not intended against an express agreement or implied understanding there will be an offence under Section 406, Penal Code. The mere fact that the jewel is intact with the petitioner is irrelevant. He has caused wrongful loss to P. W. 1 by dishonestly retaining it and claiming it to be his and by misappropriating it. So he was rightly convicted. Even now he is not willing to return the jewel to P. W. 1 in which case I might have let him off with a small fine. In the circumstances I confirm the sentence and order under Section 545, Criminal P. C. also and dismiss the petition.