1. In this case the Magistrate, in refusing to admit in evidence the alleged agreement of service of the accused, Pandit Deokinandan, was clearly in error. It was optional to him under Section 33 of the Stamp Act to examine or impound the instrument if it appeared to be insufficiently stamped. But the prohibition contained in the first part of Section 35 that no instrument chargeable with duty shall Be admitted in evidence for any purpose or acted upon unless it be duly stamped, does not apply to proceedings in a Criminal Court [see proviso (d) to that section]. The Magistrate, therefore, ought to have taken that document into consideration and come to a finding upon it. With regard to conversion, the opinion of the Magistrate is not correct. It is clear that a servant can be charged with criminal breach of trust under Section 405, Indian Penal Code. If in this case it is proved that the two accused (or either of them) were in fact entrusted with the property an servants and now wet up a claim that it belongs to them, and refuse to return it, that in itself would be evidence of conversion, which might justify a conviction under the section. If the trial by continued against the accused Pandit Deokinandan, it should be continued also against the accused Baburam.
2. This Rule is made absolute against both the accused, and the order of discharge set aside. The trial will be resumed from the stage immediately preceding the order of discharge.