1. This Rule was issued on the Deputy Commissioner of Jalpaiguri and the opposite party to show cause why the conviction of and the sentence imposed on the petitioner should not be set aside. The grounds set out in the petition are (1) that on the findings arrived at by the learned Magistrate himself the conviction is illegal, (2) that the Magistrate having in effect found breach of trust having been committed in respect of the pledged ornaments the conviction under Section 406, I. P. C., in respect of the charge as framed in the case is not maintainable; (3) that the Court should have treated the case as one of a civil nature; (4) that in the absence of a clear finding that the petitioner had acted dishonestly in violation of a trust the conviction under Section 406 is not sustainable; (5) that the learned Magistrate failed to consider if the facts and circumstances of the entire case precluded the possibility of the petitioner having acted in the bona fide belief that he had a lien on the pledged ornaments; and lastly, that the elements necessary to constitute the offence charged have neither been found nor established by the evidence.
2. The case for the prosecution is that the complainant had taken a loan of Rs. 12 from the accused by pawning two gold ear-rings with him; that on 24th February last the complainant went to the house of the accused and paid the sum of Rupees 17-4-0 which was due to the accused; that the accused accepted the amount and went inside the house to bring out the ornaments but returned without them and asked the complainant to come on the next day; that on the next day the complainant went to the house of the accused and asked for the ornaments but that the accused denied having ever lent any money to the complainant or having taken any ornaments as security for the loan from the complainant. On all these points the findings are against the accused except that the Magistrate stated that even if he did not deny the pawn altogether he committed misappropriation as he did not return the ornaments on the payment of the amount due as he should have done according to the contract bet ween the parties. He finds that the accused did not return the ornaments perhaps with a view to misappropriate them entirely or to extort further money from the complainant by retaining them. He finds that the complainant paid off the entire dues of the accused amounting to' Rs. 17-4-0 but that the accused did not return the ornaments belonging to the complainant which he should have done forthwith and that the accused instead of returning the ornaments to the complainant denied the pawn and misappropriated the ornaments. These findings appear to be sufficient for the conviction of the petitioner under Section 406 inasmuch as they show that the accused dishonestly used or disposed of the property in violation of the trust created by a contract express or implied, the trust being the deposit of the ornaments as security for the loan.
3. As regards the second point it is true that there is an error in the form of the charge. But the error appears to be a clerical error. The charge states that the accused took Rs. 17-4-0 as the principal and interest of a loan given by him ont he pawn of two gold ear-rings but that he did not return the ornaments and thereby committed breach of trust of the money and committed an offence punishable under Section 406. This appears to be a clerical error in the framing of the charge. The fact is that the ornaments were entrusted to the accused and that he committed breach of trust of them in not returning them after the repayment of the loan. There is therefore no substance in this ground as the accused has not been in any way prejudiced by this clerical error in the framing of the charge. The third point is that the dispute is one of a civil nature. It is true that cases of this kind are not generally admitted in a criminal Court, as generally there is some dispute about the amount payable and the criminal Courts are reluctant to take up cases of this nature. On this ground I had some hesitation in discharging the Rule. But in this case there was no dispute as to the amount payable; there is no evidence whatever that there was a dispute at the time of the transaction. So that although on the facts found the accused would be civilly liable there is no doubt that he is also criminally liable under Section 406.
4. As regards the fourth point, it is clear on the findings of the learned Magistrate that the petitioner acted dishonestly in the violation of the trust and therefore the conviction under Section 406 is sustainable. As regards the fifth point it is clear on the finding of the learned Magistrate that it is impossible to hold that the petitioner acted in the bona fide belief that he had a lien on the pledged ornaments. The elements necessary to constitute the offence appear to have been found and there is evidence in support of the findings. The Rule must, accordingly be discharged.