1. This is an appeal from a conviction and sentence of the learned Chief Presidency Magistrate, Calcutta, The appellant, an attorney-at-law, a member of the firm of Messrs. N. C. Bose & Co., was tried for the commission of the offence of criminal breach of trust as an attorney in respect of money entrusted to him. The prosecution was started on a petition of complaint filed by Mr. A. L. Collect, Registrar of this Court, in its Original Jurisdiction, in pursuance of a direction of a Special Bench of this Court, given under Section 476, Criminal Procedure Code, relating to an offence of the following description. That the accused had been paid the sum of Rs. 16,500 by Gouri Shankar Tiberwalla and Fulchand Tiberwalla, on September 30, 1932, for the purpose of depositing the same in Court, in connection with the sale of a house in Calcutta by the Registrar, in the Original Side, at which the aforesaid two persons were the purchasers. That the accused had failed to deposit the said sum of money, and upon the aforesaid persons Gouri Sankar Tiberwalla and Fulchand Tiberwalla calling upon the accused to explain, he was unable to give any explanation, and informed them that he was not in a position to pay the money to them immediately. That the accused had dishonestly misappropriated or converted to his own use, the said sum of Rs. 16,500 and two other sums of Rs. 5,500 and Rs. 1,220, and that he had tampered with a sworn affidavit intended to be filed in this Court.
2. The charge framed by the Magistrate, under Section 409, Indian Penal Code, which the appellant had to meet, related to the aforesaid sums of money admittedly received by him; the amount of Rs. 16,500 having been received from his clients aforesaid, on September 30,1932, and the sum of Rs. 6,720, the proceeds of a cheque, which was made over to the appellant on February 22, 1933, by the Registrar, High Court, Original Side. The appellant was charged with criminally misappropriating and converting to his own use, the aforesaid sums of money. There was no charge framed with regard to the other allegation made against the appellant, of his having tampered with a sworn affidavit. The learned Chief Presidency Magistrate has, upon the material placed before him, found the appellant guilty under both the counts mentioned in the charge framed against him, under Section 409, Indian Penal Code. The findings of the Magistrate on the material questions arising for consideration in the case are all against the appellant, who has been sentenced to three months rigorous imprisonment and a fine of Rs. 1000, in default; three months' rigorous imprisoment, on the first charge; no separate sentence was passed on the second charge. (His Lordship discussed the prosecution and defence evidence, and proceeded.) The position, therefore upon the entire evidence in the case before us, is that the appellant retained the amount of Rs. 16,500, belonging to his clients which was entrusted to him for a certain purpose; the money was retained for a considerable period of time, and the clients were led to believe that their money was lying in deposit in Court; furthermore, the money retained by the appellant was utilised for his own purpose, without the knowledge and consent of his clients. The amount of Rs. 6,720 was also retained by the appellant from February 22, 1933, till June 20, 1933, without the knowledge of the clients, it was being utilised for the appellants' own purposes. As has been stated already, the story of permission to utilise any of these sums for his use, has not been made out, by evidence on the side of the defence.
3. It may be stated here that the prosecution having succeeded in the case before us, in proving the receipt of money for a particular purpose, the case of entrustment having been made out, it was for the appellant to make out his defence as set out in his written statement filed in Court, that he had not utilised them to his purpose, without the express consent and permission of the persons by whom or on whose behalf there was entrustment. The defence of the appellant that there was permission or consent to utilise the money entrusted for his own purpose has been found to be untrue.
4. It was not for the prosecution in the circumstances stated above, to prove the actual mode of this appropriation of the money; it has however been established that there was retention of the money for a sufficiently long period: that there was a misappropriation for a time. There is ample evidence, clearly indicating that the clients were led to believe that the amount of Rs. 16,500 was deposited in Court, and was lying in deposit there; there was the prima facie proof by the production of the banking accounts of Messrs. N.C. Bose & Co. (Ex. 19) that the sums paid to the appellant or received by him, were being utilised by the appellant for his own purpose and further that between September 30, 1932, and May 18, 1933, there were not, according to the banking accounts, sufficient funds available for payment of the amounts to be paid to the clients, and which had been retained by him. When the prosecution had proved that the appellant h id not returned the money entrusted to him or received by him, in accordance with his duty, it lay upon the appellant to prove his defence of having obtained permission or consent of his clients to utilise the p money for his own purpose. This the appellant has failed to do. In our judgment on a charge under Section 409, Indian Penal Code, it is not necessary for the prosecution to prove in what manner the money alleged to have been misappropriated has actually been spent by the accused. If it be shown, as it has been established in the case before us that money entrusted to the accused or received by him for a particular purpose, was not returned by him in accordance with his duty, it lay on the accused to prove his defence: See in this connection Emperor v. Kadir Baksh 8 Ind. Cas. 687 : 33 A 219 : 11 Or. L. J. 699 : 8 A L. J. 88.
5. The fact that the appellant retained the clients' money for a sufficiently long time, after creating an erroneous impression in them that it had been deposited in Court, and without having obtained their permission or consent for utilising the money for his purpose, was sufficient for holding that the appellant was guilty of the offence contemplated by Section 409, Indian Penal Code. The gist of the offence is entrustment, and dishonest misappropriation or conversion to own use; involved wrongful gain to the accused for the period of retention of the money. There was the intention in the appellant to deprive the owners of the money temporarily, of the use of their money, and the appellant misappropriated the money for a time, intending to make it good eventually when any further retention became impossible. The amounts involved remained with the appellant for such a length of time as to justify the Court to hold taking other facts and circumstances into consideration, that the appellant had temporarily mis-appropriated or converged the money to his own use: see Queen-Empress v. Rama Krishna 12 M. 49, The determination of the question whether the act of the accused was dishonest, so as to amount to criminal misappropriation under the law, must depend upon the proved circumstances of each case. Criminal breach of trust is not an offence which counts as one of its factors, the loss that is the consequence of the act, it is the act itself, which in law, amounts to an offence. The offence is complete when there is dishonest misappropriation or conversion to one's own use, or when there is dishonest user in violation of a direction, express or implied, relating to the mode in which the trust is to be discharged.
6. It may be noticed that mere retention of money would not necessarily raise a presumption of dishonest intention: but it is a step in that direction. The fact that money entrusted to be used for a particular purpose, was not used for such purpose; that there was retention for a sufficiently long time, would justify the inference that the accused did not intend to pay: see Balthasar v. Emperor 26 Ind. Cas. 131 : A. I. R. 1915 Cal. 266 : 41 C 844 : 15 Cr. L. J. 683 : 19 C. W. N. 422, and Gunananda Dhone v. Santi Prokash Nandy : AIR1925Cal613 , It may further be mentioned in this connection that:
'the mixture of the funds of another with one's own funds may be in many cases natural and proper, in other cases convenient but irregular, and in the third, both irregular and criminal. The distinction between these cases requires to be treated with the greatest judicial care so as, while preserving the amplest civil responsibility, to prevent the third or criminal category from being extended to mistaken though convenient acts This is only to say that apart from constructive criminal responsibility which may be imposed by statute a Court of Justice cannot reach the conclusion that crime has been committed unless it be a just result of the evidence that the accused in what was done or omitted by him, was moved by the guilty mind, seethe observations of Lord Shaw in Luis Edonard Lanier v. King (1914) A C 221 : 110 L. T. 326 : 30 T. L. R. 53 : 24 Cox C. C. 53.
7. Keeping in view the propositions to which reference has been made above which are in the nature of principles of general application in cases of criminal breach of trust, and after giving our anxious consideration to the facts and circumstances of the case before us, we have come to the conclusion that the result of the evidence before us is that what was done or omitted by the appellant, was moved by a guilty mind. The acts done by the appellant before us, and his omissions, as disclosed in evidence, were both irregular and criminal, so as to fall within the third category mentioned by Lord Shaw in his judgment, in Lanier case (1914) A. C. 221 : 110 L. T. 326 : 30 T. L. R. 53 : 24 Cox C. C. 53 mentioned above, involving criminal liability. The appellant is found guilty of the offence for the commission of which he was tried by the learned Chief Presidency Magistrate of Calcutta, and his conviction under Section 409, Indian Penal Code, is accordingly affirmed.
8. It remains now to consider the question of sentence passed on the appellant by the learned Chief Presidency Magistrate. The position that the appellant will now in due course be proceeded against in the exercise of the disciplinary jurisdiction of this Court, as mentioned in the Rule issued by a Special Bench of this Court on June 6, 1933, cannot be ignored: and we think that when we come to consider the question of punishment, we ought to take into consideration the age of the appellant, his antecedents, as also the fact that the money which he misappropriated temporarily, was made good. In view of all these considerations, and taking into account also that the name of the appellant may be struck off the roll of attorneys, or in alternative he may be suspended from practising as an attorney, the ends of justice, will, in our judgment, be met if the appellant is sentenced to one month's simple imprisonment and a fine of Rs. 1,000, in default, simple imprisonment for another month. This is the sentence we pass on the first count mentioned in the charge on which the appellant was tried: no separate sentence for the second count is called for, in the circumstances of the case.
9. The conviction of the appellant is affirmed, and the sentence passed on him by the learned Chief Presidency Magistrate, Calcutta, is modified in the manner stated above. With the above modification as to the sentence, this appeal is dismissed. The appellant must surrender to his bail bond, and serve out the sentence passed on him by this Court.