JUDGMENT Lodge, J. - The Appellant was convicted by the Fourth Presidency Magistrate of Calcutta of the offence of criminal breach of trust and was sentenced under sec. 406 of the Indian Penal Code to undergo six weeks rigorous imprisonment and to pay a fine of Rs. 1,000. In default of payment of the fine he was ordered to undergo a further six months' rigorous imprisonment. The learned Magistrate directed that the fine, if paid, be made over to the complainant as compensation. The case for the prosecution, briefly, is as follows. The complaint entered the service of the accused in June, 1942. The accused was the manager or proprietor of the British Catering Company and conducted a restaurant known as the Lyons Service Restaurant in Government Place East, Calcutta. When the complainant was appointed to the post, he was required to deposit in cash a sum of Rs. 2,500 with the accused as security and it was agreed that the sum in question would bear interest at the rate of 31/2 per cent, per annum. It was further agreed that "in the event of termination of your services either by you or by us, this security deposit of Rs. 2,500 will be returned to you at the end of the notice period of the termination of your services, provided there are no discrepancies in the amounts handled by you." 2. The sum of Rs. 2,500 was accordingly deposited in cash by the complainant on June 23, 1942, and a receipt was granted by the accused. The terms of the agreement were reduced to writing. On August 12, 1942, the complainant wrote to the accused to the effect that his health would not allow him to continue in service and requesting that arrangements be made to relieve him. The evidence on the record shows that the accused asked the complainant to continue in his service and the complainant did so continue at least until October 7, 1942. Apparently on October 7, 1942, the complainant left the service of the accused. On October 26, 1942, the complainant wrote to the accused in the following terms: Dear Sir, By my letter dated the 13th August, 1942, I tendered my resignation from your service, when you paid me my salary for September, I expected you to make over my security deposit of 3,500 together with all interest due. On October 26, 1942, the complainant wrote to the accused in the following terms: Dear Sir, By my letter dated the 13th August, 1942, I tendered my resignation from your service, when you paid me my salary for September, I expected you to make over my security deposit of 3,500 together with all interest due. You, however, asked me to carry on for a short while to enable you to find a suitable man. I fell ill on 7th October, 1942, and you came to my place and satisfied yourself about the condition of my health. I shall be obliged if you forthwith send me my security deposit and interest and whatever you think just, legal and proper for this month of October, without any delay whatsoever. Please consider this request urgent and thereby avoid any unpleasantness. 3. It is the case of the complainant that no answer was received to this letter. The complainant accordingly consulted his legal adviser and had a pleader's letter sent to the accused on November 4, 1942. The pleader's letter reads: Sir, Please take notice that unless you make over to my client or me, his legal agent for the purpose, his Security Deposit of Rs. 2,500 and all other dues for Services rendered, within 24 hours of your receipt hereof, criminal action in the first instance will be adopted against you, without any further reference to you. 4. No answer was received to this letter and a criminal case was instituted in the "Court of the Chief Presidency Magistrate on November 9, 1942. 5. There can be no doubt that Rs. 2,500 was deposited with the accused. Mr. Banerji has contended that such a deposit does not come within the terms of sec. 405 of the Indian Penal Code and he has referred us to one or two rulings in this connection. All those rulings deal with civil suits with respect to moneys which were alleged to be trust moneys or moneys in the nature of trust moneys. I am not satisfied that they have any application to the present case and I am reluctant to hold that the money deposited by the complainant is not property dominion over which was entrusted to the accused. But in my opinion it is not necessary to decide this question for the purposes of the present case. I am not satisfied that they have any application to the present case and I am reluctant to hold that the money deposited by the complainant is not property dominion over which was entrusted to the accused. But in my opinion it is not necessary to decide this question for the purposes of the present case. Even if we assume that the accused was entrusted with dominion over this Rs. 2,500, the case cannot be said to be proved until it is shown that he has dishonestly misappropriated the money or converted it to his use or has dishonestly used or disposed of it in violation of any direction of law or of legal contract. 6. The only facts proved from which the Court is asked to infer that there has been such criminal misappropriation or conversion are that the complainant demanded the return of the money and that his letters were ignored. But when the complainant was examined as a witness (and he is the only witness of any importance in the case), he was cross-examined as to his service and as to his handling of the cash of his employer. At first he denied having handled any cash. Subsequently he admitted that he was in charge of the cash register and he admitted that on various dates the sum of money actually found at the end of the day in the cash register was considerably less than according to the cash register ought to have been found in it. After this cross-examination, the complainant offered no explanation of these deficiencies. He not questioned on the point by the Court; he was not re-examined. No other witness was examined or questioned to show that there was an honest explanation of deficiencies known to the accused. Prim facie, therefore, on the materials before the Court, there was reason to suspect at all events that there were discrepancies in the amounts handled by the complainant, these circumstances the accused would be justified, on the original agreement, in paying the money to the complainant, at all events until these discrepancies had been explained and adjusted. In view of the admitted facts and the failure of the complainant to explain the admitted discrepancies it seems to me unreasonable to draw th inference that the accused misappropriated the money merely from his failure to answer promptly to the demand for refund the same. In view of the admitted facts and the failure of the complainant to explain the admitted discrepancies it seems to me unreasonable to draw th inference that the accused misappropriated the money merely from his failure to answer promptly to the demand for refund the same. There is literally no evidence that the accused has not got the money still, and there is literally no evidence that he has applied it to some wrong purpose, only evidence is that he has not returned it promptly: and in the circumstances failure so to return is not proof, in my opinion, of criminal misappropriation or conversion to his own use. In my opinion the evidence on the record is quite insufficient to prove the guilt of the accused. 7. The appeal is therefore allowed. The conviction and sentence of the accused are set aside and he is acquitted and discharged from his bail bond. The fine, if paid, is to be refunded. The Rule for enhancement of sentence is discharged. Khundkar, J. I agree.