1. This Rule is directed against an order convicting the petitioner of an offence punishable under Section 406, Indian Penal Code, and sentencing him to six months' rigorous imprisonment and a fine of 100 rupees or in default two months' further rigorous imprisonment.
2. On the findings arrived at by the lower Court this conviction cannot be upheld. The case appears to be one in which, as stated by the learned Additional Sessions Judge, both parties have adduced false or partly false evidence. But before the petitioner can be convicted it in necessary that the Court should be satisfied that the charge framed against him has been established. The charge as finally framed was that, on the 8th December 1919, being entrusted with certain property Rs. 666 belonging to the complainant he has committed criminal breach of trust. This sum of 666 rupees was money paid for 9 maunds of ghee supplied to a certain buyer. But it is found by the lower Appellate Court that it has not been proved beyond reasonable doubt how the petitioner came by the money. If the prosecution could not prove how the petitioner came by the money they did not establish one of the first essentials of the offence charged, that he was entrusted with that money. It appears that both the Court of first instance and the Appellate Court, although they did not believe the case for the prosecution, have convicted the petitioner because he has set up a false defence. If the case of the prosecution is false on the whole the accused is entitled to an acquittal whether his defence be true or false.
3. We make this Rule absolute and direct that the petitioner be acquitted and the fine if paid be refunded. The petitioner's bail-bond will now be discharged.