BAIJNATH MARWARI Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been fined Rs. 80 under Section 406, I.P.C. The facts as found are that in payment for cloth valued at Rs. 43-12-0 purchased from him the complainant sent him a hundred rupee note. The petitioner did not send back any change alleging that money was due to him and refusing to give the change until the account was settled. The only question is whether the conduct of the petitioner was dishonest, dishonesty being an ingredient in the offence charged.

(2.) The learned Sessions Judge held that there were strong extenuating circumstances, that the petitioner did not consider himself to be acting dishonestly, and that in the moral sense he can hardly be said to have been dishonest. The Bar were apparently unable to place before him any decisions which were in point. Harry Jones V/s. Emperor AIR 1924 Cal 908, was a case in which books and furniture had been retained; complainant returned and demanded the article; the accused detained them claiming some right to them. The Court held that: if he had some claim, even if it turns out not to be sustainable in law, there is no offence under Section 409 unless the claim is merely a pretence and not bona fide.

(3.) That was a decision of a Bench of two Judges of the Calcutta High Court and may be considered authoritative. In Krishna Rao V/s. Emperor AIR 1924 Nag 47, it was held by a single Judge that where there was no concealment it was not art offence for a pleader to retain in his hands money he had received on account of his client, when He claimed that he was entitled to do so in settlement of his fees. The decision of a single Judge even if it has not quite the authority of a ruling of a Division Bench, would nevertheless be entitled to respect and if I may say so, I am in agreement with the principle. Puma Chandra V/s. Emperor AIR 1923 All 298, was another decision of a single Judge of the Allahahad High Court in which it was held that the accused retained money received by them from a complainant Chidda against the debt which was owing to them from Chidda, and there was nothing to show that in doing this they acted dishonestly.