1. This is an application to revise the conviction and sentence passed upon the accused by the Second Presidency Magistrate, George Town, in Calendar Case No. 7381 of 1921 on his file. The accused has been convicted of criminal breach of trust under Section 406, Indian Penal Code, and sentenced to four months' rigorous imprisonment by the Magistrate.
2. It is contended by the learned Counsel for the accused that his client is not guilty of any offence on the facts found by the Magistrate.
3. The facts of the case as found by the Magistrate are as follows--The accused entered into two contracts with the firm, of which complainant is a clerk, for the delivery to him of 400 bags of castor seeds of a particular kind at Rs. 16 per bag, each bag weighing 165 lbs. and again for the delivery of 3G0 bags of another kind of castor seeds at the rate of Rs. 15 per bag, here also each bag was to weigh 165 lbs. The delivery in each case was to be at Royapuram. With reference to these two contracts, all but 200 bags under the first contract was delivered. The only dispute in this case is about these 200 bags. The complainant asserted that those bags had been delivered at the accused's godown. The accused denied receipt of those bags. The Magistrate held on the evidence in the case that the 200 bags wore actually delivered as the complainant asserted; and as the accused denied delivery of those bags, he came to the conclusion that the accused has committed the offence of criminal breach of trust, and has convicted him of that offence.
4. In the first place, it may be mentioned that about the same time when the criminal case was going on, there was a civil suit filed in the High Court by the complainant firm, for the value of these 200 bags alleged to have been delivered, or, for the return of the bags. That case was decreed by the learned Judge on the Original Side, and the decree has been filed in this case as Ex. XVI. That decree is for the payment of the price of the bags. On appeal, it is stated before me, and it is not contradicted by the other side, that a Bench of this Court came to the conclusion that the alleged delivery of the 200 bags to the accused was not true. If I were to accept this as the basis of my judgment now, there can be no doubt that the conviction is clearly wrong, as the very foundation of it, namely, the alleged delivery of the 200 bags, is gone; and there is authority in favour of admitting such judgment in evidence in Markur In re (1917) 41 Bom. 1. But I do not propose to rest my judgment on that authority. Taking for the purposes of this case that the finding of the Magistrate that the 200 bags were delivered is correct, even then it is clear that no kind of criminal offence has been committed, the matter being one purely in the nature of a civil dispute. The 200 bags were delivered in pursuance of a contract for their purchase. No doubt, there was an undertaking between the parties that the bags were to be weighed to ascertain whether they contained 165 lbs., but this was entirely for the purpose of ascertaining the actual price to be paid for the quantity of goods delivered. It did not in any way affect the delivery that was made in pursuance of the contract, and, on delivery of the goods, it was entirely open to the accused to insist upon weighment, or, to waive it, if he thought fit to do so, and to accept the bags as containing 165 lbs., as the complainant firm sent them. I do not think the Magistrate was right in thinking that the weighment had anything to do with the passing of the property. When the goods were delivered, they were appropriated for the contract, and all that remained to be done was to ascertain the actual amount of money to be paid, the rate being already fixed by contract. The Magistrate says that the mere delivery of possession was an entrustment which would give rise to a trust. That cannot be so in a case where the delivery is made in pursuance of a contract to deliver at a fixed price, and his view that there was a breach of trust is entirely unsupportable. It is not possible even to hold that any criminal misappropriation, which is a lesser offence than breach of trust, was committed in this case, for, if the goods become the goods of the accused, when they were delivered to him, there can be no misappropriation at all of those goods. In this view, the conviction even on the finding of the Magistrate is untenable. It follows, therefore, that the accused should have been acquitted. It seems to me that this case was merely an attempt on the part of the complainant to convert a civil dispute into a criminal case and to try to bring pressure on the accused to pay up the value of the 200 bags.
5. The conviction of the accused is set aside, and his bail-bond is cancelled.