JUDGMENT
1. In this case the accused, who was a servant of one Dr. Underwood practising as a Medical Practitioner in Bombay”, was sentenced by the Magistrate to one (1) day’s simple imprisonment and a fine of Rs. 150 for criminal broach of trust in respect of two sums of Rs. 15 and Rs. 20 alleged to have been mis-appropriated by him as a servant.
2. The accused appealed to this Court but in view of the provisions of Section 411 of the Criminal Procedure Code and the decision recorded in Queen-Empress v. Hari Savba 20 B. 145 we held that we were unable to entertain the appeal.
3. It was represented to us, however, that there was a point of law arising upon the findings of the Magistrate. We, therefore, allowed the case to be argued as if it had been admitted in revision.
4. The pleader for the accused contends that on the findings of the Magistrate no dishonest intention is proved.
5. The material facts found by the Magistrate are that the accused was the general agent acting under a Power-of-Attorney for the Prosecutor, Dr. Underwood, in reference to a good deal of Small Causes Court litigation apparently instituted by Dr. Underwood’s many creditors, and, in the words of the Magistrate, whenever the accused required small sums of money in connection with the Doctor’s business or for Court expenses he used to take the same from the compounder, De Costa, who entered the payments in his accounts which were duly shown to Dr. Underwood who then posted the accounts in his cash book. It is proved that two sums of Rs. 15 and Rs. 20 were taken on different occasions from the compounder De Costa and it is also proved that the accused when being asked to account for them gave an account which was not true saying that they had been used for paying the charges of Mr. Suntoke a pleader in the Small-Cause Court. Upon that the Magistrate has found as follows: “The accused has failed to account for the whole of these sums except Rs. 3. And the only conclusion that can be arrived at, therefore, is that he has mis-appropriated the sum to his own use.” The peculiar fact in this case which tells in favour of the accused is that at the time when these sums were taken, Dr. Underwood was actually in his debt for a sum exceeding Its. 300 and that being so, we do not think it can be held that the mere failure to give a correct and true account of the manner in which Rs. 32 were expended, by the Prosecutor’s agent in numerous Small Cause Court proceedings necessarily implies a dishonest intention. Unless dishonest intention is shown the accused cannot be found guilty under Section 405.
6. We, therefore, set aside the conviction and sentence and order the fine if paid to be restored.
