THADANI, C. J.: This is a revision petition^ filed by one Nirmal Prasad Barua under the provisions of s. 439, Cr. P. C. in a case in which he was convicted u/s. 409, I. P. C. and senten­ced to R. I. for 12 months and to pay a fine of Rs. 600 or in default to undergo further R. I. for 6 months by Mr. A. Rahman, Magistrate of the First Class, Gauhati. On appeal, his conviction, and sentence were confirmed by the learned Additional Sessions Judge, L. A. D. Apparently the learned Additional Sessions Judge was informed that the petitioner was under­going a sentence of imprisonment passed in another case, and he, therefore, directed that .the sentence of imprisonment passed in this ^case was to run concurrently with any sentence of imprisonment that the applicant may be already undergoing in another case. (2) The case for the prosecution was that the petitioner, as the Agent of the Gauhati Bank Limited at Gauhati, obtained a sum of Rs. 13,000 from the Gauhati branch of the Calcutta Na­tional Bank Limited by negotiating a cheque, dated 16-7-1947, drawn by the petitioner on the Calcutta Branch of the Central Bank of India Limited. The petitioner personally received the sum of Rs. 13,000/- from the Gauhati branch of the Calcutta National Bank Limited but failed to account for the same and has, therefore, committed criminal breach of trust. (3) The point taken by Mr. Ghose for the petitioner before us is that the examination of the petitioner by the Trying Magistrate was not an examination is accordance with the provi­sions of s. 342 of the Code of Criminal Proce­dure. The learned Additional Sessions Judge, in the course of his judgment, criticised the learned Magistrate's examination of the peti­tioner in these terms: "The examination of the accused under the provisions of s. 342 of the Code of Criminal Procedure by the learned Magistrate was of a most perfunctory nature and the matters ap­pearing in evidence against the accused were not brought to his notice to obtain his explana­tion thereon. So, it is very difficult to gather from the records of the case as to what actually the defence of the accused was at the time of the trial, and it is not possible to say if the sub­mission now made by the learned Advocate for the appellant is not the result of an after­thought on the part of the accused appellant himself. Whatever that might be, I have got to consider whether or not it is expedient to re­mand the case to the Court below for re-trial on the ground of non-observance of the mandatory provisions of S. 342, Criminal Procedure Code by the learned Trial Court. To do so I must be satisfied that for non-observance of the mandatory provisions of s. 342 of the Code of Criminal Procedure, the accused was prejudi­ced at the trial. The learned Advocate for the appellant does not seem to want a re-trial of the case, and all that he wants is that the ap­peal should be decided on the basis of the evi­dence already on record." (4) We think the learned Additional Sessions Judge was in error in stating that even if the examination conducted under the provisions of s. 342, Cr. P. C. is an examination which does not enable an accused to explain the circum­stances appearing in the evidence against him, it can justify a conviction if the accused person has not been prejudiced by it. The conception of prejudice, when an examination under the provisions of S. 342, Cr. P. C. cannot be regard­ed as an examination in accordance with law, s inherent and the question of further prejudice does not arise. The learned Additional Ses­sions Judge is also in error in thinking that the question of determining whether an accused person is a public servant or banker, merchant, factor, broker, attorney or agent, within the meaning of s. 409, I. P. C., is a question which can be determined from the trend of the cross-examination of prosecution witnesses. (5) The law on the subject of defective exa­mination of an accused person under the provi­sions of S. 342, Cr. P. C. has been laid down by Their Lordships of the Privy Council in 'Dwarkanath v. Emperor', 37 C W N 514. (5) The law on the subject of defective exa­mination of an accused person under the provi­sions of S. 342, Cr. P. C. has been laid down by Their Lordships of the Privy Council in 'Dwarkanath v. Emperor', 37 C W N 514. In their Lordships' view, when a circumstance appears in the evidence against an accused person - a circumstance which the Court considers vital, - it is the duty of the Court, under S. 342 of the Criminal Procedure Code, to call the accused's attention to the circumstance and call for an explanation omission to do so is a departure from the statutory rule, and a conviction based on the accused's failure to explain what he was never asked to explain, is bad in law. (6) In the case before us, the accused was not asked as to what he did with the money which he received from the Gauhati branch of the, Calcutta National Bank Limited. We think the failure of the learned Trying Magistrate to ask the accused what he did with the Rs. 13,000, which he is alleged to have received from the Calcutta National Bank Limited, was a failure upon a very vital point, and the conviction based upon such a failure cannot be sustained in law, having regard to the observations of their Lordships of the Privy Council in the case to which we have referred. (7) We, therefore, set aside the conviction and sentence and send back the case for retrial from the stage of the examination of the peti­tioner, provided, of course, that the Trying Magistrate is still a Magistrate and has juris­diction to try the case. If he is not, the case must be disposed of according to law. (8) DEKA, J.: I agree. Retrial ordered.