1. I am inclined to think that the offence committed by the accused properly fell under Section 408, Indian Penal Code. He was a clerk in the service of the Estate and the money in question came into his hands because he was authorised by the Estate Authorities to receive such moneys, on their behalf and he was to pay the money to the Estate Treasury on receiving it.
2. The money when received by him was not his money for whish he had merely to account to the Estate, but it was actually the Estate money over whish he was entrusted with dominion only to receive and to pay into the treasury by his contract of service. That being so, his offense, when he dishonestly misappropriated it himself, is one clearly falling within the definition of criminal breach of trust in Section 405, Indian Penal Code. See the ruling in Basiruddin Ahmed v. Emperor 4 Ind. Cas. 48 which I follow. In the case in Queen Emperor v. Ramakrishna 12 M. 49 the learned Judges did not really consider whether Section 403 or Section 408, Indian Penal Code, applied. The question they discussed was whether any dishonest misappropriation was made out at all in the circumstances of that case and they held that it was. In fact some of a observations of the learned Judges would seem to appropriately apply only to the case of criminal breach of trust. I do not think, therefore, that the case is any authority in deciding whether the offence is one under Section 403 or one of criminal breach of trust. The accused should, I think, have been convicted under Section 408, Indian Penal Code.
3. I am, however, of opinion that it is not necessary in this case to alter the conviction from Section 403, Indian Penal Code, to Section 408, Indian Penal Code, and enhance his sentence by awarding him imprisonment as well. As considerable time has elapsed since the date of the conviction, I think it is not necessary to do this in this case. The revision petition is, therefore dismissed.