Judgment Sinha, J. 1. In this case, the petitioner has been convicted under Sec. 408, Penal Code, and sentenced to undergo rigorous imprisonment for one year and a half and to pay a fine of Rs. 500.00 for having committed criminal breach of trust in respect of eight bales of cloth. 2. The prosecution case is that Rameshwar Lal (P. W. 2), who is a dealer in cloth, made over lour railway receipts to the petitioner, Nathu Lall, who is his servant, for taking delivery of 21 bales of cloth from the Dhanbad Railway station and to bring them to his shop at Patanagar, and for meeting the expenses of which Nathulal was paid Rs. 501/4/- on 4-9-1943. On 9-9-1948, the petitioner came to the complainant, Rameshwar Lal, and said that only 13 bales of cloth covered by three railway receipts had reached Dhanbad railway station and that he had taken delivery of the same and kept them in, the godown of one Gobindram Singhania, a prosecution witness in the case, at Purulia and that the eight bales of cloth covered by the railway receipt (Ext. 1) had not till then reached Dhanbad station. Rameshwar Lal asked the petitioner to go to Purulia and bring the goods from the godown of Gobindram Singhania in the complainants truck, and the petitioner was also directed to bring the eight bales of cloth from the Dhanbad railway station if they had arrived by that time. The petitioner returned that very evening with 13 bales of cloth in the truck and stated that the eight bales of cloth had not till then arrived at the Dhanbad railway station. Thereafter, the complainant made over other railway receipts to Nathu Lal to bring other bales of cloth from the Dhanbad railway station, and Nathu Lal duly brought them and delivered them to the complainant stating that the eight bales of cloth had not been received till then at the Dhanbad railway station. The complainants brother, Bijay Prasad (P. W. 13) gave to the complainant two letters on 28-9-1048 said to have been received from the complainants servant Rameshwar Lal Bajaj (P. W. 9) from Jaipur district. These letters are marked Exts. 22 and 23. From these letters the complainant learnt that Nathu Lal was trying to misappropriate dishonestly the eight bales of cloth and his suspicion was aroused from the contents of these letters. These letters are marked Exts. 22 and 23. From these letters the complainant learnt that Nathu Lal was trying to misappropriate dishonestly the eight bales of cloth and his suspicion was aroused from the contents of these letters. He went to the Dhanbad railway station via Purulia where he related the facts to Govindram Singhania and requested him to be on the look out for Nathu Lall, and he learnt at the Dhanbad railway station that all the goods belonging to the people of Tatanagar had already been taken delivery of. The complainant went to Dhanbad Police Station and lodged a station diary report expressing his suspicion about the conduct of the petitioner. Next morning he learnt from the records kept at the goods office at Dhanbad that the petitioner had actually taken delivery of the eight bales of cloth covered by the railway receipt (Ext. 1) on 6-9-1948, and that on 8-9-1948, he had taken delivery of the other 13 bales of cloth, and thereafter a first information was lodged with the Dhanbad G.R.P. on 29-9-1948. The complainant thereafter went back to Patanagar. In the meantime, Govindram Singhania met the petitioner at Purulia, detained him there in his house and sent a telephonic message to the complainant informing him of the fact that the petitioner had been detained by him. The complainant with his brother Bijay Prasad came to Purulia next morning and met the petitioner who promised to return the eight bales of cloth taken by him. It is said that the petitioner told the complainant that the goods were lying at Tatanagar and so the complainant took the petitioner with him, and while they were on the way, the petitioner made another statement to the complainant to the effect that these bales of cloth were not at Tatanagar, but at Madhupur. The complainant thought that he was being misled by the petitioner and brought, the petitioner to Dhanbad and made him over to the G.R.P. 3. The defence is that the petitioner is not a servant of the complainant, but he is his partner in the cloth, business and that he withheld the delivery of the bales of cloth to the complainant in order to compel the complainant to render the partnership account to him which the complainant was refusing to do in spite of the requests made by the petitioner. The other line of defence taken was that the goods were actually delivered to the complainant. 4. The Courts below have found that the petitioner did not make over the eight bales of cloth to the complainant though he nad taken delivery of them on 6-9-1948. The learned Additional Sessions Judge has held that from the evidence it appeared that the petitioner was a partner of the complainant for a pretty long period in some business, that he was a cousin of the complainant and that he was also a servant of the complainant in some business, but that there was nothing on the record to show that he was a partner in the cloth business. The other material finding of the learned Judge is that, so far as the present case is concerned, the petitioner was entrusted as a servant or agent of the complainant with the task of taking delivery of the eight bales of cloth from the Dhanbad railway station and that, therefore, the petitioner had no right to withhold these eight bales of cloth from the complainant in order to force the latter to render to the petitioner partnership accounts. It is further found that the intention of the petitioner in withholding these eight bales of cloth and appropriating them was dishonest. Upon these findings, the appellate Court has affirmed the conviction and sentence of the petitioner. 5. There was one other co-accused with the petitioner whose name was Bhagwan. It is admitted that Bhagwan was the son of Lakshmi, brother of Shivnath, and Shivnath was the father of Rameshwar the complainant, and that Sunder, Rameshwar and Bijay are brothers. It is also admitted that the petitioner is the son of Shivnaths sister. It will appear, therefore, that the parties are near relations. Mr. Baldeva Sahay, the learned Counsel appearing on behalf of the petitioner, has submitted that the charge in this case does not make out a case of criminal breach of trust in respect of the eight bales of cloth and that there can be no charge of criminal breach of trust or criminal misappropriation against a partner by another partner or partners, and that in this particular case there is no evidence of misappropriation much less of dishonest misappropriation and further that the finding that the petitioner was a servant on the date of the entrustment was not a legal finding. 6. 6. In the view which I have decided to take of this case, it is not necessary to decide the larger question as to whether or not a partner could be guilty in law of the offence of criminal breach of trust or misappropriation; but, as the matter has been argued at length, I would like to notice some of the authorities cited at the Bar. To constitute an offence of criminal breach of trust, three factors are essential to be proved -- (1) that there was entrustment with the property or with any dominion over property; (2) that the accused has misappropriated or converted to his own use that property or he has disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which the accused had made touching the discharge of such trust or wilfully suffers any other person so to do, & (3) that the misappropriation, conversion or disposal has been done dishonestly. To sustain a conviction under Section 408, Penal Code, a further fact is necessary to be proved, namely, that the accused was a clerk or servant or employed as a clerk or servant and the entrustment to him was in his capacity as such servant or clerk. In the present case, in my view, some of these elements are lacking. 7. The charge in this case runs as follows "That you on 6-9-1948 at Dhanbad being a servant in the employ of Messrs. Sivnath Rameshwar Nath, cloth dealers of Tatanagar and in such capacity being entrusted with R. R. No. 96254 and money for taking delivery of eight bales of cloth as per R. R. (aforesaid) committed criminal breach of trust of the said eight bales of cloth after obtaining delevery of the same." The finding by the lower appellate Court to the effect that the petitioner was entrusted as a servant or agent of the complainant with the task of taking delivery of the eight bales of cloth is based upon the previous deposition of the petitioner himself in a money suit brought by the complainant against a third person. This deposition is dated 15-12-1947, and the petitioner is described there as the munib of the complainant. This deposition is dated 15-12-1947, and the petitioner is described there as the munib of the complainant. From the judgment of the Court below, it does not appear that there was any other evidence on which reliance could have been placed for the finding that the petitioner was a servant on or about the date he was given the railway receipts for taking delivery of the bales of cloth. From a perusal of the letters and also from the telephonic message conveyed by Sunder, the brother of the complainant, to Govindram Singhania at Purulia as also from the relationship between the parties it appears to me doubtful if the petitioner was a servant and not a partner of the complainant and the Court below itself has found that the petitioner was a partner of the complainant in some business for a pretty long period of time, although it has been found that "there is nothing in the record to show that Nathu Lal was the complainants partner in the cloth business in connection with which Nathu Lal was entrusted by the complainant to take delivery of the eight bales of cloth and to make them over to him at Tata Nagar." In my judgment, this is not a correct approach by the Courts to the consideration of the defence of an accused person. The accused person under law is not called upon to prove his defence affirmatively; it is enough for the accused to show either by his own evidence or from statements of the prosecution witnesses themselves that his defence is a probable one and, if that is done, the truth of the prosecution case becomes doubtful and the accused is entitled to an acquittal. In the present case, upon the prosecution case itself, it has been found that for a long period of time the petitioner was a partner of the complainant. (After considering evidence his Lordship proceeded:) Upon this state of the evidence, in my judgment, the only inference in law is that the petitioners defence that he was a partner of the complainant has been amply made out. It is probable that although the petitioner was a partner of the complainant, he might as well have been acting as his munib. It is probable that although the petitioner was a partner of the complainant, he might as well have been acting as his munib. But, as I have said already, there is no evidence on which reliance has been placed by any of the Courts to show that on the date of the alleged entrustment the petitioner was a servant. It is clear, therefore, that Sec. 408, Penal Code, has no application. 8. Mr. Sahay has argued that Sec. 408, Penal Code, is inapplicable from another point of view. Upon the charge as it stands, there was no entrustment by the complainant of the eight bales of cloth to the petitioner. He says that only the railway receipt had been made over to the petitioner and that the delivery of the goods was made to him by the railway station authorities. I feel doubtful if it could be said on these facts that the petitioner was entrusted with these eight bales of cloth. But I do not want to decide this question as, in my view, the petition succeeds on another point.- None of the two Courts below has come to the finding that the petitioner had misappropriated or converted to his own use the eight bales of cloth even if it be supposed that there was entrustment of these eight bales of cloth to the petitioner. The finding of the Court below to the effect that the intention of the petitioner "in withholding these eight bales and appropriating them was dishonest" is not a finding, in my opinion, to the effect that the petitioner had really misappropriated or converted to his own use these eight bales of cloth. Sec. 403, Penal Code, punishes the dishonest misappropriation or conversion to his own use of move-able property by an accused. Mere intention to misappropriate does not amount to misappropriation or conversion. Upon the evidence to which reference has been made by the Courts below in their judgments it cannot be said that the petitioner misappropriated or converted to his own use the eight bales of cloth and, if that be not so, there could be no conviction of the petitioner under Sec. 408 (criminal breach of trust by a servant) or under Sec. 403 (criminal mis- i appropriation). The word "misappropriation" is not a technical word, not being defined by law, and the dictionary meaning of "misappropriation" is "to put to a wrong use". The petitioner upon the findings cannot be said to have put these eight bales of cloth to any use, whether right or wrong. The question of dishonesty on the part of the petitioner is also not free from doubt. From the prosecution evidence itself, namely the letters, Exts. 22 and 23, and the telephonic message which passed between Govindram Singhania and the complainants brother, Sunder, it appears that the petitioner wanted to withhold the making over of these bales of cloth to the complainant just to compel the latter to settle the partnership accounts of the petitioner. As it is not necessary to decide this point in the present case, I shall leave it at that. 9. As to whether a partner could or could not be made liable for the offence of criminal breach of trust of a property which belonged to the partnership, there is a difference of opinion. In -- Ragho Prosad V/s. Emperor, 12 Pat L T 355, the head-note of the case runs as follows: "A conviction for embezzlement under Sec. 408, Penal Code, cannot be sustained if it appears to the Court that the relationship between the parties is one of partnership and that the criminal case is an outcome of a dispute as regards their respective liabilities." In that case their Lordships held that having regard to the whole circumstances and the receipt by which the moneys due from the accused to the complainant had been paid, their Lordships were not satisfied "that any deliberate fraud on the part of the petitioner had been made out." This case, therefore, is no authority for the general proposition that in no case a partner could be liable for criminal breach of trust. No other Patna case has been placed before this Court on the point. There are many Calcutta cases, and I shall briefly refer to them to show that there is a conflict of opinion in that Court on this question. No other Patna case has been placed before this Court on the point. There are many Calcutta cases, and I shall briefly refer to them to show that there is a conflict of opinion in that Court on this question. In --Krishna Chandra V/s. Har Kishore, AIR 1925 Cal 154 it is said that "it is not criminal misappropriation for one of three joint owners totake property belonging to them all unless it is also found that he appropriated the property to his sole use........." In -- Bhupendra Nath V/s. Giridharilal, AIR 1933 Cal 582, their Lordships, after a review of the Indian and English decisions, observed : "A partner who receives money belonging to the partnership on account of himself and his co-partners, does not do so in a fiduciary capacity," and then again : "It is difficult therefore to conceive how he can be entrusted with, or with dominion over, his own property, or how he can dishonestly misappropriate it or convert it to his own use." Referring to the earlier case of -- Queen V/s. Okhoy Coomar Shaw, 13 Beng L R 307 (FB), their Lordships said that the decision which said "that the words of Sec. 405 are large enough to include the case of a partner, if it be proved that he was in fact entrusted with the partnership property, or with dominion over it. and has dishonestly misappropriated it, or converted it to his own use" was correct so far as it went, "but no indication is given in the judgment to show how or in what circumstances, a partner can be said to have been entrusted with partnership property, or with dominion over it, or to have misappropriated or converted it, it is difficult to conceive how such a situation could .arise." Then in -- Alla Rakha V/s. Liakat Hossain, 44 Cal W N 650 their Lordships said that it was not the law that in no case can charges under Sections 403 to 409, Penal Code, be framed against a person who is a partner and is accused of offences under those sections in respect of partnership property. In this case, the facts were not quite clear. It appears that there was a partnership in a fish business and there was a charge of criminal misappropriation against the accused. In this case, the facts were not quite clear. It appears that there was a partnership in a fish business and there was a charge of criminal misappropriation against the accused. The Magistrate had discharged the accused under Sec.253, Criminal P. C., on the ground that because the accused was a partner, there could be no case of criminal misappropriation or criminal breach of trust. Their Lordships ordered further enquiry in the case. A more recent case of that Court reported as -- Manmohan Das V/s. Mohendra Bhowal. in 52 Cal W N 441, has decided that a partner who receives money on behalf of the partnership does not receive it in a fiduciary capacity. Harries, C. J. observed as follows: "Each partner is co-owner of the whole of the common stock, though he receives or pays a share only in profits and losses arising therefrom, and it is difficult to conceive how he can be entrusted with or have dominion over his own property, how he can dishonestly misappropriate it or convert it to his own use." and again that "the effect of this Bench decision is that the Full Bench decision can have no application unless the partner is proved in fact to have been entrusted with the partnership property or with dominion over it and had dishonestly, misappropriated it." 10. It is really problematic how a partner could be said to misappropriate or convert to his own use a property to which he himself is as much entitled as any other partner. As I have said, this question does not fall to be decided in this particular case and I shall not deal with it any more. 11. Some cases were cited by the learned Counsel on behalf of the State to support the proposition that a creditor by taking away property of his debtor against the will of the latter acts dishonestly although the intention is that the creditor might, by so doing, be paid off his debt. A Full Bench of the Calcutta High Court in -- Queen Empress V/s. Sri Churn Chungo, 22 Cal 1017 (FB) and an unreported decision of this Court in Cri. Revn. No. 1531 of 1950, D/-20-2-1951 (Pat), by Reuben J. were cited in support of that proposition. A Full Bench of the Calcutta High Court in -- Queen Empress V/s. Sri Churn Chungo, 22 Cal 1017 (FB) and an unreported decision of this Court in Cri. Revn. No. 1531 of 1950, D/-20-2-1951 (Pat), by Reuben J. were cited in support of that proposition. There are, however, two decisions of this Court -- Daulat Shaw V/s. Emperor, 2 Pat L T 583 and -- Jay Mahto V/s. Emperor, 22 Pat L T 694 which take a different view. The cases relating to theft are not quite relevant in considering cases of criminal misappropriation or criminal breach of trust inasmuch as in case of theft mere removal from the possession of a person with dishonest intention is enough, while in the latter category of cases there must further be mis-appropriation or conversion. Mr. Varma on behalf of the State has argued that the letters, Exts. 22 and 23, were not admissible in evidence; the contents of the letters may not be admissible in law because they were mere hearsay but the letters are admissible to prove the fact that such letters were received. The Courts below have drawn some inference against the petitioner because the petitioner had concealed the fact that he had taken delivery of these eight bales of cloth on 6-9-1948, and also because the petitioner had first mentioned to the complainant that the goods were at Tatanagar and then said they were at Madhupur. In my judgment, no such inference could have been drawn against the petitioner especially when the prosecution was not able to bring home to the petitioner the offence with which he was charged. 12. On a consideration of all the facts and circumstances in the case, as mentioned above, I find that the prosecution has not been able to prove beyond reasonable doubt that the petitioner is the servant of the complainant and that the petitioner misappropriated or converted to his own use the eight bales of cloth. In view of these findings, I am of opinion that the petitioner must be acquitted of the charge under Sec. 408, Penal Code. His conviction and sentence are, therefore, set aside. The bail bond is cancelled. If the fine has been paid, it should be refunded to the petitioner.