JUDGMENT 1. Nobody has appeared to show cause against this rule, but the Deputy Magistrate has submitted an explanation which we have considered. The Petitioner has been convicted of offences under sec. 403 (Criminal misappropriation of property) and sec. 426 (mischief). The facts appear to be as follows:--A certain piece of land, with a pucca building standing thereupon, was mortgaged among other property to the complainant or to his assignor. During the recent floods the house tumbled down, and some of the bricks were sold by the mortgagor's daughter's son, who is one of the reversioners to her estate, and they were sold for the sum of Rs. 18. It is by reason of this transaction, and by reason of the appropriation, or alleged misappropriation, of the bricks or rather of the price thereof that the offences in question are said to have been committed. There was no denial by the accused that he did sell the bricks in question and appropriate the price thereof; but his plea was that it was so done with the consent of his grandmother, the mortgagor. And in support of this plea he examined his brother, who is one of the reversioners ; but the Magistrate says that he does not believe his evidence. However that may be, the only facts found against him are that after the house tumbled down, he sold some of the bricks for the sum of Rs. 18, and appropriated the money, and upon these facts being found, the Magistrate convicted the accused both under sec. 403 and sec. 426, I. P. C. 2. Now, it seems to us, in the first place, that the element constituting the offence under sec. 403, or, we may say, the chief element, is the dishonest appropriation ; but there is no proper finding, at any rate, by the Magistrate, that in what the accused did there was any dishonest intention on his part, nor is there any finding that it was with the intention to cause wrongful less or damage to the complainant that this act was committed by the accused, so as to bring his act within the purview of sec. 426, I. P. C., which defines the offence of mischief, Now, it should be borne in mind that the accused was one of the reversionary heirs to the estate of the mortgagor, and supposing that the mortgagor herself had sold a portion of the bricks after the building had fallen down, what would have been the issue between the parties. The issue would be, in what the mortgagor did by way of selling away the bricks when they were lying perfectly useless on the ground, whether there was any dishonest intention. And in determining this question the matter that should have to be considered, but which has not been considered, is whether the act of the mortgagor so far diminished the value of the mortgaged property as really to affect the interest of the mortgagee. These are considerations which did not enter into the mind of the Deputy Magistrate, and we are of opinion that there can be no conviction for either criminal misappropriation or mischief in this case. We accordingly set aside the conviction and sentence and make the rule absolute. The fine, if paid, will be refunded.