BALTHASAR Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal from the judgment and sentence of the learned. Presidency Magistrate, Fifth Court, convicting the appellant C. Balthasar, of an offence under Section 409 of the Indian Penal Code and sentencing him to pay a fine of 500 Rupees, or in default to be rigorously imprisoned for four months on the first count of the charge, no separate sentence being passed on the other two counts of the charge.

(2.) The first objection raised to this conviction is that the charge is defective and misleading, and that no conviction can be held upon that charge for the alleged misappropriation of the sale-proceeds of the furniture. The second objection is that there is no finding of when and how the appellant criminally misappropriated the sale-proceeds and nothing to show dishonest intention.

(3.) The charge is a curious one and runs as follows: "That you on or about the 24th November 1912, in Calcutta, being a public auctioneer, committed criminal breach of trust in respect of three articles of house-hold furniture, almirah, etc., worth 109 rupees, given to you by Mr. W.J. O Grady for sale and remittance of the sale proceeds to him, and you thereby committed an offence under Section 409 of the Indian Penal Code;" and the other two charges are similar with regard to sales of furniture on the 5th December 1912, and on the 22nd December 1912.