Kuppuswami Ayyar, J.
1. This is a petition to revise the order of the Sessions Judge of Ramnad confirming the order of the Sub-divisional Magistrate of Devakottah convicting the petitioner for offences punishable under Section 238A (1) (b) and Section 282A, Companies Act. He was sentenced to rigorous imprisonment for one year and a fine of Rs. 500 in respect of the offence punishable under Section 238A(1)(b). He was directed to return the jewels in question within three months failing which he was sentenced to rigorous imprisonment for six months under Section 282A, Companies Act.
2. The petitioner was the managing agent of the Nagarathar National Bank Ltd. of Kandanoor. It was under liquidation and the Official Receiver of Ramnad was the Official Liquidator. The case against the petitioner was that he failed to deliver up to the liquidator, appointed by the Court in the winding up proceedings, certain jewels mentioned in the petition. His case was that he was not in possession of the jewels, as they had been pledged with one Vairavan Chetti of Arimalan. Both the Courts have found that the story of the pledge was not true and that he ought to account for the jewels. On facts, I see no reason to interfere with the finding that the pledge was not true. At the earliest opportunity, when he was asked, he did not mention that pledge to Vairavan Chetti. Even as per the accused's version, the jewels were worth more than Rs. 3000. To prove his case that they were pledged for that amount, he has not filed any voucher obtained for it, nor was the fact noted in the accounts. An entry about Rs. 3000 held in suspense was sought to be connected with this transaction. But, as was pointed out by both the Courts below, there were several such entries. In those circumstances it cannot be said that the first Court was wrong in appreciating the evidence in the manner it did and coming to the conclusion that the story of the pledge to Vairavan Chetti was an after-thought and cannot be accepted.
3. The only other question for consideration is, whether on the evidence the petitioner could be convicted for an offence punishable under Section 238A (1) (b), Companies Act. Under that section, the prosecution will have to prove that the petitioner had in his custody, or under his control the jewels at the time when the company was being wound up. There is no evidence on that point. Consequently, he could not be convicted for the offence under that section. But then, he will be guilty of the offence punishable under Section 282A; for not only is there evidence, but there is also the accused's admission that these jewels were with him. Therefore, they were jewels in his possession, which was wrongfully withheld. It must be considered to have been wrongfully withheld, in view of the fact that he had not handed them over to the liquidator and his version of the pledge has been found to be false. He is therefore liable to be punished for the offence punishable under Section 282A, Companies Act. Under that section he is liable to be punished with fine not exceeding Rs. 1000 and he may also 'be ordered by the Court trying the offence to deliver up or refund within a time to be fixed by the Court any such property improperly obtained or wrongfully withheld or wilfully misapplied or in default to suffer imprisonment for a period not exceeding two years.' It is rather unfortunate that both the Courts, below have failed to notice that no sentence of fine for the offence punishable under Section 282A had been passed. The direction to deliver the jewels with a punishment for default is an additional sentence that could have been imposed in addition to a sentence of fine. But then, the order directing the delivery of jewels is correct. It is true that the Court can either order return of the jewels or a refund. But the Court ordered the former. Since, admittedly, the petitioner has not returned the jewels, the sentence of imprisonment will have to stand. In the result, the conviction and sentence for the offence punishable under' Section 238A(1)(b) is set aside. The conviction and. sentence for the other offence is confirmed.