Judgment Naqui Imam, J. 1. This is an application in revision against the order of the appellate Court dismissing the appeal of the petitioner and maintaining his conviction under Section 409 of the Indian Penal Code and also his sentence of one years rigorous imprisonment and a fine of Rs. 1,000 imposed by the trial Court. 2. The prosecution case appears to be that the petitioner had committed criminal breach of trust in respect of 588 bags of paddy weighing 1151 mds. 34 srs. 12 ch. after it had been entrusted with him by the Government in the year 1948 for the purposes of converting this amount of paddy into rice. It is also the prosecution case that the petitioner, who is the owner of the mill in question, had to convert the paddy at the rate of 100 mds. of paddy into 63 mds. of rice. On this basis, the petitioner had to deliver 725 mds. 27 srs. 2 ch. of rice to the Government which he never gave in spite of the repeated demands. In view of his failure to take notice of the demands, a complaint was filed on 23-3-1955 for the prosecution of the petitioner under Sections 408 and 409 of the Indian Penal Code. 3. The defence case is that the petitioner had committed no offence and that the Papers which would have shown that the delivery had been made by him have been suppressed by the prosecution. It is also alleged that it is quite possible that some fraud had been committed by the employees of the Supply Department and that a belated attempt has now been made to the responsibility on the petitioner. 4. In the Court of appeal below a point of law was raised that there would be no conviction for the offence under Sec. 409 of the Indian Penal Code and the trial stood vitiated inasmuch as the petitioner was tried in respect of a number of charges exceeding the limit imposed under Sec.234 of the Code of Criminal Procedure and that the exception provided in Sub-section (2) of Sec.222 of the Code could not be applicable since the entrustment was made in kind and not in cash. This point was also urged in the course of argument before me. 5. This point was also urged in the course of argument before me. 5. So far as the first point, namely, that the subject matter of the trial was regarding entrustments exceeding three in number and, therefore, in contravention of the provision of Sec.234 of the Code of Criminal Procedure, is concerned, I do not think there is much substance in this point. There is nothing on the record to show that, in fact, the charge framed in this case relates to more than three entrustments. Undoubtedly, there are Exhibits 9 and 10, which show that, on different dates, certain quantities of paddy were despatched and that the number of such despatches is more than three, but these two documents cannot show that there were more than three entrustments so far as the subject matter of the charge in this case is concerned. On the other hand, there are two documents produced by the petitioner himself (Exs. 15 and 16). Exhibit 15 is a letter which the petitioner himself wrote to the District Supply Officer, in which he said that he sent the statement of levy paddy for the Supply Officers perusal and necessary action for the period from the 1st January to the 31st December 1948. Exhibit 16 is that statement. We find from that statement that there were only three entrustments, namely, on 18-5-1948, 30-8-1948 and 17-4-1948. The sum total of the paddy delivered on these occasions comes to 1151 mds. 34 srs. 12 ch., which is the subject-matter of the charge in the present case. Thus, it is clear that from the record there is noting to show that the subject matter of the charge is for more than three entrustments. It cannot, therefore, be said that the provision of Sec.234 of the Code of Criminal Procedure has been violated. 6. So far as the second point is concerned, namely, that Sub-section (2) of Sec.222 of the Code could not be applicable since the alleged entrustments were in kind and not in cash, in my opinion, there is no substance in this point either, so far as the present case is concerned, because it is permissible under Sec.234 of the Code of Criminal Procedure for the offences in respect of the three separate entrustments to be charged together. It is submitted that, under Sub-section (2) of Sec.222 of the Code of Criminal Procedure, one can only consolidate moneys received and not goods in kind so far as the charge is concerned; but, in my opinion, the charge was not framed in the present case by virtue of Sub-section (2) of Sec.222 of the Code of Criminal Procedure. It would certainly have been better if the charge had been framed regarding each of these separate deliveries showing the date of each entrustment separately, but the failure to do that cannot, in my opinion, vitiate the trial unless it is shown that such a defect in the charge has occasioned a failure of justice. Nothing has been pointed out to me to show how the petitioner has been prejudiced by this defect in the charge. That being so, I do not think that it can be said that the trial is vitiated because the charge does not separately mention the different dates and the quantities of paady which were delivered to the petitioner in respect of each separate entrustment. Tne charge contains the period concerned by the entrustments and sum total of paddy that was entrusted with the petitioner. As I have said, undoubtedly there is some defect in the charge but it is not of a vital nature and nothing has been pointed out to me to show that there has been any prejudice caused to the petitioner. 7. The first point that Mr. Baldeo Sahay took was that, in fact, there had been no entrustment of paddy. It was submitted that, even if it be accepted that the paddy was delivered. It was delivered to the mill and not to the petitioner himself and, therefore, there had been no entrustment so far as the petitioner was concerned and, even if there was entrustment of the paddy made personally to the petitioner, it was delivered to him not with a view that the paddy itself should be returned but with a view that the paddy should be turned into rice and that very rice should be delivered to the Government That paddy was delivered to the mill cannot be got over as there is ample evidence on the record. There is also Exhibit 16 which clearly shows that paddy was delivered on three different dates, and that statement was sent by a person no other than the petitioner himself. There is also Exhibit 16 which clearly shows that paddy was delivered on three different dates, and that statement was sent by a person no other than the petitioner himself. In these circumstances, it cannot be said that the petitioner was not entrusted with the paddy that was delivered to him on the dates mentioned in Exhibit 16. It was also submitted that, since that paddy was not to be returned to the Government and it was to be converted into rice, there could be no entrustment, since entrustment implies that the very goods must be returned after the entrustment, as the owners proprietary interest in not transferred to any one due to the fact that the property has been entrusted. In the present case, it is clear from the evidence on record that the paddy was entrusted or handed over to the petitioner for a specific purpose, namely, turning it into rice and then to return the rice to the Government. It is true that, so far as the paddy itself is concerned, it was not to be returned, but the paddy was entrusted for a specific purpose, namely, that it might be converted into rice and then handed back to the Government. I cannot see how in these circumstances it can be held that it was open to the petitioner to do what he liked with the paddy. Some cases have been cited before me in support of the view that has been submitted. In State V/s. Tirath Das, AIR 1954 All 583 (A), it was observed: "The one underlying idea in Sec. 405 is undoubtedly this that the property which is the subject matter of entrustment, or in respect of which dominion is passed over to the accused, does not even for the time being, become the property of the accused which he could use for his own purposes. Thus the section does not cover the case of a loan or of an advance of money which the borrower or the depositee intends to use or utilise that money, for the time being, till he is in possession of it, although he may have to return an equivalent amount later on to the person making the advance with or without interest, or compensation for the use thereof." With this proposition I most respectfully agree. But I do not think that this proposition; has any application to the present case. A loan cannot possibly be a case of entrustment because something is lent, as for example, money. The ownership over that money ceases so far as the lender is concerned and the borrower can spend it in any manner he likes. In the present case, there is nothing to show that the paddy delivered to the petitioner ceased to he the property of the Government. Merely because the paddy was delivered at the mill, it cannot possibly lead to the conclusion that the ownership over the paddy of the Government had ceased. Another case cited was Kanai Lal V/s. The State, AIR 1951 Cal 206 (B). That was a case where a person had instructed a jeweller to make a gold chain and handed over to him Rs. 300.00 towards the cost of gold and the cost of making it. The jeweller did not deliver the chain on the stipulated day nor did he return the money. The jeweller, in these circumstances, was prosecuted for an offence under Sec. 406. It was held that, though the jeweller was guilty of dishonest and dishonourable conduct in not making the chain, he could not be said to have misappropriated the money because when it was paid to him it became his. His obligation, thereafter, was to produce the chain. Again, with respect I entirely agree with this view. The money paid to the jeweller in that case was for the purpose of buying gold and making the gold chain. The money, was, therefore, handed over to the jeweller for the purpose of spending it and the customer ceased to have ownership over the money from the moment it was handed over to the jeweller. It was observed in that case as follows :- "His (the jewellers) obligation thereafter was to produce the gold chur. That he failed to do and the complainant could recover the money from the petitioner as money paid on a consideration which had wholly failed. That, however, would not make the act of the petitioner a criminal act and criminal breach of trust. In my view, as there was no entrustment in this case there could be no question of an offence under Sec. 406. That, however, would not make the act of the petitioner a criminal act and criminal breach of trust. In my view, as there was no entrustment in this case there could be no question of an offence under Sec. 406. Penal Code, and that being so the petitioner was wrongly convicted." I would cite an example very similar to this where it would be a criminal breach of trust. If A goes to B and hands over to him five gold sovereigns in order that with those sovereigns B may make some gold ornaments and B instead of making the ornaments spends the five gold sovereigns, then, in my opinion, he is guilty off criminal breach of trust because the gold sovereigns that were handed over or entrusted to the jeweller were for the purpose of making gold ornaments out of them. In the Calcutta case, however, the money was not entrusted to the jeweller for making it into ornaments but for the purpose of buying gold and making that, gold into a gold chain. The third case cited was Emperor V/s. Barmanand, AIR 1936 All 691 (C). In that case it was held that, where a person transfers his right in certain gold ornaments to another so that the property in those ornaments passea from the former to the latter, there cannot be any offence under Sec. 406 in respect of those ornaments. With this view, again, I most respectfully agree. Once the ownership over a property passed to a person to whom the property is delivered, there is no entrustment, but I think the principles laid down in this case has no application to the present case. There is nothing to show that the ownership over the property handed over to the petitioner had passed to him. The delivery of the-paddy at the mill cannot lead one to the conclusion that the paddy had ceased to be the property of the Government and it had become the property of the petitioner. The cases cited before me, therefore, in my opinion, have no application to the present case. 8. The next point taken was that there was, nothing to show that the petitioner had misappropriated the paddy that was entrusted with the petitioner. The cases cited before me, therefore, in my opinion, have no application to the present case. 8. The next point taken was that there was, nothing to show that the petitioner had misappropriated the paddy that was entrusted with the petitioner. For this purpose, my attention has been drawn to Exhibit 17, from which it appears that the petitioner had replied by way of an explanation why he had not delivered the rice as agreed upon between the Government on the one side and the petitioner on the other. The Government had sent through the Supply Department a letter (Ex. 1) to the petitioner inquiring from him why he had not supplied the rice as he was bound to as per agreement between the Government and him. Exhibit 17, as I have said, is a reply to that letter, and the petitioner in that letter said in effect (the letter is in Hindi) that, due to flood all round the mill, the earth was so softened that the mill could not function and so he was not able to supply the rice but he would send rice after the flood subsided. The question is whether this explanation can be accepted. It must be remembered that this explanation was given by the petitioner after he was asked why he was not supplying the rice. The letter of the petitioner is dated 12-9-1949. The entrustments of the three different items of paddy were made during the period from March 1948 to April 1948. It is thus clear that the explanation given by the petitioner was a long time after the delivery of the paddy to him and then only when he was asked by the Department. It is, thus, clear that the petitioner never intended to take any step for supplying the rice as he was expected to do. If the petitioner was acting honestly, it was his duty to inform the authorities that he was not able to supply the rice as stipulated due to the fact that there was flood etc. The petitioner kept quiet without taking any action and allowed more than a year to elapse. Furthermore, we have the evidence of P. W.s 7 and 8 in this connection. P. W. 7 is a Subdeputy Collector. The petitioner kept quiet without taking any action and allowed more than a year to elapse. Furthermore, we have the evidence of P. W.s 7 and 8 in this connection. P. W. 7 is a Subdeputy Collector. He deposed to the effect that he had gone on the orders of the Subdivisional Officer to the accused (petitioner) and met him, and the petitioner said that no notice had been brought to him. He also said that he had certainly taken paddy but then he was not in a position to deliver rice nor would he do so. This witness also found that the petitioner had no stock off rice with him. His evidence further shows that this petitioner admitted at the residence of the then Sales Tax Officer that he certainly owed rice to the Government but he would not give it. All this happened sometime between the 30th March and the 1st April 1954. P. W. 8, who is the Supply Inspector, has deposed that, on his demand the petitioner sometimes said that he would think over the matter but finally he told the witness that he had no paddy or rice and hence he would not make payment of any rice. Thus it is clear that whatever paddy was received by the petitioner on the three alleged dates had definitely been either turned into rice and sent away somewhere other than the Government or that the paddy was sold to somebody else. There can be no doubt, in my opinion, in these circumstances, that the petitioner took the paddy from the Government which was entrusted with him and he then disposed it of in such manner as he liked. 9. The next point taken was that the contract has not been proved. The case of the prosecution is that there was a verbal contract between the Government and the petitioner. I have already stated what the terms of that contract were. In short, for every 100 mds. of paddy delivered to the petitioner, 63 mds. of rice would be delivered to the Government. The contract is a verbal one. There is nothing to show that this contract was reduced to writing, though, of course, there is an approval order of the District Magistrate in which undoubtedly the terms of the contract are mentioned. But that would not make the verbal contract into a written one. of rice would be delivered to the Government. The contract is a verbal one. There is nothing to show that this contract was reduced to writing, though, of course, there is an approval order of the District Magistrate in which undoubtedly the terms of the contract are mentioned. But that would not make the verbal contract into a written one. The District Magistrates approval order is simply an order approving of the verbal contract. This point has been raised for the purpose of showing that the provision of Section 405 of the Indian Penal Code has not been satisfied. For this purpose, I must quote Sec. 405: "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any , other person so to do, commits criminal breach of trust." Stress has been laid on the words "of any legal contract." Even if we suppose for a moment, though I do not hold for a moment that it is so, that the contract in the present case was not a legal contract in view of the provisions of Sec.175(3) of the Government of India Act, 1935, I do not think that it would in any way affect the question as to whether there had been a criminal breach of trust or not. It would be noticed that the opening words of Sec. 405 are "whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates &c." The most important words, so far as the present case is concerned, are "in any manner". There can be no doubt that the petitioner was entrusted with the paddy in some manner, the manner being that there was an agreement between the parties that, fort every 100 mds. of paddy delivered to the petitioner, the petitioner would deliver 63 mds. off rice. There can be no doubt that the petitioner was entrusted with the paddy in some manner, the manner being that there was an agreement between the parties that, fort every 100 mds. of paddy delivered to the petitioner, the petitioner would deliver 63 mds. off rice. I do not think, therefore, it matters in the least whether the contract was legal or not so long as it is shown that, in some manner whatever there was an entrustment of the property in question, namely, the paddy. 10. For the purpose of remanding this case, it was submitted that there was no finding of the Court of appeal below that the petitioner had misappropriated the paddy entrusted with him. The relevant portion of the judgment is as follows:- - "The circumstances to which I have referred, in my opinion, prove unmistakably that the appellant misappropriated the paddy entrusted with him & now he wants to take advantage of the utter negligence of the department concerned in not making any demand from him in the matter for a period of about 3 years from March 1950 to December 1953." There can be no doubt that the department had been lax and there had been want of diligence on its part, but that, however, cannot be a ground for holding that the petitioner has not misappropriated the paddy in question. This finding cannot, therefore, be a ground for remanding the case to the Court of appeal below for rehearing the appeal. 11. It was submitted that, even if the petitioner cannot explain what he did with the paddy that was delivered to him unless it is shown that he misappropriated it dishonestly, he cannot be found guilty. This view is correct, but it is only from the circumstances that intentions can be inferred. Some of the circumstances I have mentioned above. 11. It was submitted that, even if the petitioner cannot explain what he did with the paddy that was delivered to him unless it is shown that he misappropriated it dishonestly, he cannot be found guilty. This view is correct, but it is only from the circumstances that intentions can be inferred. Some of the circumstances I have mentioned above. This Court has held in Bindeshwari V/s. Emperor, ILR 26 Pat 703: (AIR 1949 Pat 69) (D) as follows: "In a case of criminal breach of trust failure to render a satisfactory account on the part of the accused is a circumstance pointing to the guilt of the accused." In the present case the following circumstances stand out clear: (1) that the petitioner did not inform the authorities why he did not deliver the rice as per agreement between the parties; (2) that it is only after the Government had written to him on his failure to supply the rice that he gave some explanation and that explanation has been given more than a year after the delivery of the paddy to him; (3) that P. Ws. 7 and 8 met him and asked him about the delivery of the rice and he told them in effect that he was not going to deliver the rice, and (4) that with him no rice or paddy was found, clearly showing that such paddy as was delivered to him had been used in a manner different from what was expected of him, namely, to convert the paddy to rice and then to deliver the rice to the Government. These circumstances can lead one to only one conclusion that the petitioner had misappropriated the paddy that was entrusted with him and that the explanation that he has given is utterly false. 12 Certain papers, such as, the general purchase register, which would have shown what amount of paddy was received from various villages on what dates and how much paddy was delivered to the petitioner on what dates, have not been produced in Court and the wagon chart has also not been produced. True, these defects there are in the prosecution evidence. But it cannot be said, because of these defects, that the prosecution has failed to prove the case against the petitioner. There is, further, Exhibit 21, which is the personal ledger of Sheo Shankar Rice Mill. True, these defects there are in the prosecution evidence. But it cannot be said, because of these defects, that the prosecution has failed to prove the case against the petitioner. There is, further, Exhibit 21, which is the personal ledger of Sheo Shankar Rice Mill. This ledger is kept by the Government and it is entered there that, in March 1948, the quantity of paddy delivered for milling was 977 mds. 34 srs. 12 ch. and, in the month of April 1948, it was 174 mds. The sum total comes to 1151 mds-34srs. 12 ch. In my opinion, even if one was to omit Exhibit 21 from consideration, it would not in any way affect the prosecution case and, therefore, I do not think that, in these circumstances, the fact that Exhibit 21 has been brought on the record in any way goes to affect the fact that the petitioner has been guilty of misappropriating the paddy which was entrusted with him. 13. The learned Judge has undoubtedly, considered the letter which is said to have been addressed to the petitioner (Ex. 24) and a postal letter taken by the peon and the trial Court has not put any question to the petitioner when he was examined under Sec.342 of the Code of Criminal Procedure in this regard. That, in my opinion, was a defect in the trial but I do not think that the failure to put questions to the petitioner on these two exhibits was such as to justify the Court of appeal below to come to the conclusion that there had been a failure of justice on account of that fact. 14. I am, therefore, satisfied that there is no ground for interfering with the order of the learned Judge, dismissing the appeal of the petitioner and upholding the order of conviction and sentence passed on the petitioner by the trial Court. The sentence is by no means severe having regard to the nature of the offence committed. The application is therefore, dismissed without any modification whatsoever.