1. The petitioner has been fined Rs. 50 (Sub-Magistrate and Sub-Divisional Magistrate of Cuddalore, in C.C. No. 108 and C.A. No. 66 of 1924) for criminally misappropriating an agricultural engine valued at Rs. 2,000. Admittedly he borrowed this engine under Ex. A from his relation Muthuswami Reddi, P.W. No. 1, who says that he was looking after it for the real owner Muthuawami Reddi, P.W. No. 4. The petitioner says that he also had a lease of the engine from Muthuswami Reddi Ex. IT, which the lower Appellate Court seems prepared to concede, para. 4. The alleged breach of trust was the sale of this engine by petitioner to his aunt, the wife of Muthuswami Reddi's brother, D.W. No. 1. This witness says that the engine is family property. He is disbelieved but unles3 the lower Courts accepted some theory of a family quarrel it is difficult to understand why they inflicted such paltry sentences. The Sub-Magistrate fined the petitioner Rs. 100 which the Sub-Divisional Magistrate reduced to Rs. 50. If a man criminally misappropriates property of another worth Rs. 2,000 it is not an extenuating circumstance to plead that he and his victim are closely related; the extenuating circumstance would be that there has been no real misapplication.
2. This is the point taken in this petition. Petitioner was given domination over the property by Muthurama Reddi and it is urged he has not converted it to his own use, or disposed of it by selling it to his aunt, a mere paper transaction nor has he caused any wrongful loss to its owner Muthuveera Reddi for whom the engine is still available. No one complains that the aunt has suffered wrongful loss.
3. The question for determination may be pinned to illustration (b) of Section 405, Indian Penal Code. If A sells the furniture by a deed of sale to B but does not remove, it, and if B makes no complaint, can Zcomplain that there has been criminal breach of trust.
4. How far wrongful loss or gain has resulted to A or B from the sale to B is not in question. Therefore it would, not be a dishonest sale, unless it could be proved that A intended to remove the furniture and so cause loss to Z. In the case of furniture it would not be difficult perhaps to prove such dishonesty; but it is more difficult in regard to an engine which no one moved or apparently intended to move from the place where Muthurama Reddi allowed the petitioner to put it.
5. Suppose that instead of an engine it had been land over which the petitioner had been given dominion and in respect of which he executed a sale-deed to a third person, would that be criminal breach of trust as defined by Section 405? Section 403 refers in terms to moveable property, and it has been ruled that Section 404 must be read with it as also limited to moveable property, Reg. v. Girdhar Dharamdas 6 B.H.C.R. Cr. 33. In Jugdown Sinha v. Queen-Empress 23 C. 372 : 12 Ind. Dec. 248 it has been held that property referred to in Section 405 must as in Section 403 be moveable property and that, as it has been ruled in Reg. v. Girdhar Dharamadas 6 B.H.C.R. Cr. 33 criminal breach of trust cannot be committed in respect of immoveable property. As matter of fact Ihe Bombay ruling as I have shown above, makes no reference to criminal breach of trust, and the Calcutta ruling must, I think, be based on the general assumption that if a man cannot move a thing away, he cannot dishonestly convert it to his own use. In the majority of cases that assumption may be correct but the wording of Section 405 is very comprehensive and, I think it dangerous to lay down any absolute rule. For the purpose of this case, it is sufficient to find that although the lower Courts have not said so in so many words the sentences inflicted show that they regarded the case as essentially civil in character, and. moreover, there is no clear proof of intention to cause wrongful loss either to Muthurama or to Muthuveera Reddi. In fact the lower Appellate Court has given no finding of dishonesty; it merely records that the petitioner disposed of the engine 'in violation of the trust' obviously something more than breach of trust is necessary to bring the case with in the purview of a Criminal Court. For the above reason, I set aside the conviction and order the fine to be refunded. No order under Section 577, Cr.P.C., is necessary in these circumstances and the propriety of that passed, by the Sub-Divisional Magistrate (which I now cancel) need not be questioned. I would only observe that before passing it he would have been well advised to give notice to the parties concerned.