INDAR SINGH Vs. EMPEROR

JUDGEMENT

(1.) This is a criminal revision from a conviction of the accused under Section 406 of the Indian Penal Code.

(2.) The facts are as follows: One Harbans was declared an insolvent and Lala Ram was appointed Receiver of his estate in January 1925. The Receiver attached certain heads of cattle belonging to the insolvent and made them over to the applicant after taking a sapurdnama from him. The Receiver first fixed the 13th February for sale and three days earlier he sent a notice to the applicant to produce the cattle at the place where the auction was to take place but the no ice was returned unserved and no auction took place. On this the Receiver fixed another date for sale and sent a fresh notice to the applicant, but even on that date the cattle were not produced, nor did the applicant turn up. Subsequently the Receiver received a notice from the applicant to the effect that the cattle attached by the Receiver did not belong to the insolvent but belonged to his brother who had filed an objection in the execution Court and that the Receiver had no right to attach them. The Receiver replied that the applicant was bound to produce the cattle and he had no right to stop their production even if the insolvent's brother had filed an objection. To this the applicant replied that the sapurdnama was not binding on him and that he in fact filed a complaint under Section 420 of the Indian Penal Code in respect of it. On such reply being received the Receiver with the permission of the Additional District Judge, filed a complaint out of which this revision has arrisen.

(3.) The complaint filed by the accused under Section 420 was dismissed summarily and he has not had that order revised. At the trial of the present case the accused denied that any cattle of Harbans had in fact been attached or handed over to him and he even denied a proper execution of the sapurdnama. The Courts below, however, have found these questions of fact against the applicant. I must therefore, assume that the heads of cattle had actually been attached by the Receiver and made over to the applicant, who executed a sapurdnama in respect of them. The learned vakil for the applicant has argued, firstly that no offence under Section 406 was committed as there has been no misappropriation and secondly that in view of a clause in the sapurdnama for the payment of the price of the cattle there was no criminal misappropriation. The applicant has not put the cattle to his own use nor has he disposed of them dishonestly. What has happened is that he is holding them still as trustee, but he is denying that he is holding them on behalf of the Receiver from whom he had taken them. He now asserts that the cattle belong to another person on whose behalf he-holds them. Misappropriation has not been expressly defined in the Indian Penal Code. The illustrations to Section 403 all relate to cases where a person appropriates the article to his own use, but the illustrations cannot be taken to limit or narrow the scope of Section 403 itself. It seems to me that if a person sets apart an article for the use of an other person, of which article he is a trustee of the complainant, he misappropriates it even though he has not put it to his own use. Section 403 is in no way restricted to appropriating property to one's own use. If a trustee repudiates the trust and asserts that he now holds the property on behalf of a person other than the one who entrusted him with it, he has misappropriated the property just as much as he would have been said to misappropriate it if he had been putting forward his own claim to it. The applicant got possession of the cattle from the Receiver and undertook to return them to the Receiver. When subsequently he repudiated the right of the Receiver to attach the cattle, and asserted that they really belonged to the insolvent's brother, and that he would not hand them over to the Receiver, he must be deemed to have committed a misappropriation.