Judgment T Ramabhadran, CJ [1] The appellant, who was formerly employed as a booking-clerk in the Himachal Pradesh Government Transport at Mandi, was tried by the learned Special Judge of Mandi of an offence under Section 5(2) of the Prevention of Corruption Act, 1947. The charge framed against the appellant was that between 26-4-1954 and 26-6-1954, he had misappropriated, or otherwise converted to his own use, 12 sums of money; totalling Rs. 3,355/9/9. The appellant pleaded not guilty, but adduced no defence. The learned trial Judge came to the conclusion that the offence was brought home to the appellant only in respect of five items; totalling Rs. 948/13/16, As regards the remaining items, the learned Judge was of the opinion that the prosecution had failed to prove its case. In the result, the appellant was sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 400/-; in default, four months' rigorous imprisonment. Hence, this appeal. [2] Arguments in the appeal were heard yesterday. For reasons to be stated shortly, I am of the opinion that the appellant was rightly convicted, although, in the matter of fine, I feel that some leniency might be shown to the appellant. [3] The prosecution case was that the appellant, in his capacity as booking-clerk at Mandi, received, on or after 26-4-1956, the sums, in question, from the drivers of various transport vehicles for deposit with the adda cashier. The appellant, however, failed to deposit the sums. It was only several days after he was placed under suspension, that the missing sums were handed over by him to the adda cashier. [4] These remarks relate only to the five items in respect of which the appellant has been convicted. I am not concerned with the remaining items, because the appellant has been acquitted in respect of them and there is no appeal by the State against that acquittal. [5] When examined by the trial Court, the appellant denied having misappropriated, or otherwise converted to his own use, the sums, in question. His contention was that it was no part of his duties to receive monies brought by drivers or realized by them en route. [5] When examined by the trial Court, the appellant denied having misappropriated, or otherwise converted to his own use, the sums, in question. His contention was that it was no part of his duties to receive monies brought by drivers or realized by them en route. His version was that at the request of the drivers concerned, he had received these five sums and kept them in the iron safe (provided in the booking-office) and handed them over to Joginder Lal, adda cashier, on 26-6-1954 since the drivers concerned did not turn up to claim the money. The appellant further pleaded that he was heavily over-worked and there were no office instructions directing him to deposit the monies with the cashier, daily. No defence was adduced by the appellant, nor did he examine himself as a defence witness, although the learned Judge pointed out to him that he could do so. [6] Therefore, there is no dispute as to this part of the prosecution case namely that having received the sums, in question, from the drivers concerned on or after 26-4-1954, the appellant did not hand them over to the adda cashier till 26-6-1954. On behalf of the prosecution, it was contended before the learned trial Judge that the appellant was guilty of temporary misappropriation, while this was denied by the appellant. The learned Judge, as already stated, found in favour of the prosecution case and, accordingly, convicted the appellant. Therefore, only two points have to be decided in this appeal:--(A) Whether the Court below has erred in holding that the appellant misappropriated or otherwise converted to his own use the five sums of money, totalling Rs. 948/13/6? (B) In case the appellant's conviction is upheld, whether the punishment inflicted upon him by the Court below is excessive? [7] (A). Mr. Kedar Ishwar for the appellant argued, vehemently, that mere retention of these sums by the appellant for a period of two months or less, does not amount to misappropriation. In support of his arguments, he cited the following authorities:--(i) Mathura Prasad v. Emperor, 40 Ind. Cas. 303: (AIR 1917 All. 273). [7] (A). Mr. Kedar Ishwar for the appellant argued, vehemently, that mere retention of these sums by the appellant for a period of two months or less, does not amount to misappropriation. In support of his arguments, he cited the following authorities:--(i) Mathura Prasad v. Emperor, 40 Ind. Cas. 303: (AIR 1917 All. 273). There, Justice Sir George Knox held that: "The retention of money by a servant or clerk for fifteen months after its receipt raises a very serious doubt of bona fides against him, but the mere retention is not conclusive proof of criminal misappropriation or criminal breach of trust." It would appear, however, that there was no evidence in that case to show that the accused disposed of or attempted to dispose of the money entrusted to him in some way other than that in which he was bound to do. [8] (ii) Parmod Ban Behari Saran v. Emperor, 106 Ind. Cas. 682 (Pat.). There, a Division Bench of that High Court observed as follows: "In a prosecution for criminal breach of trust, delay in making remittance to the head office of moneys received, according to departmental rules is a circumstance to be taken into consideration and it may be, if there is no explanation, prima facie evidence of dishonesty. But where an explanation is available, mere delay in making the remittance in the absence of proof of conversion or falsification of accounts is nothing more than evidence of breach of departmental rules." In the present case, as I shall show presently, there are certain circumstances, which go against the appellant and show his dishonest intentions. [9] (iii) Munuswami Nainar v. Emperor, A.I.R. 1930 Mad 507. There, the facts were that a village headman delayed the remittance of a sum of Rs. 17/12/6, realized on account of taccavi, for a period of about a month. In the absence of evidence to show misappropriation, a learned Judge of that High Court remarked that: "Mere delay in payment of money entrusted to a person, when there is no particular obligation to pay it at a certain date, does not amount to and does not furnish, by itself, a sufficient proof of misappropriation." In the present case, as already stated, there are circumstances which point towards misappropriation. [10] (iv) Raoji Mahale v. Emperor, AIR 1928 Bom. 205. [10] (iv) Raoji Mahale v. Emperor, AIR 1928 Bom. 205. There, the facts were that the accused, along with two other clerks, delayed sending remittances to the Government treasury, although the departmental rules required daily remittances. The prosecution, however, failed to show any overt act on the part of the accused. Consequently, Fawcett and Mirza, JJ., observed that: "Ordinarily, mere retention of money will not suffice to constitute the offence of criminal misappropriation. There should be some indication which justifies a finding that the accused, definitely, had the intention of wrongfully keeping Government out of the money; and ordinarily, that would be shown by some overt act, which went beyond mere retention of money that should have been remitted to the treasury. He is guilty of gross dereliction of duty in not seeing that the rules are observed." In the present case, as I shall show presently, there are overt acts committed by the appellant, which show that this is not a mere question of retention of money that should have been remitted to the cashier. [11] (v) Rex v. V. Krishnan AIR 1940 Mad 329 . There, a learned Judge of that High Court remarked that: "Even when an agent may have no claim against the principal, even then if he retains it merely and does not pay it, but does not do anything else with it, there is no criminal breach of trust. It is only a civil liability, and of course the principal can at any time, if he chooses, compel him to pay, send him a notice and file a suit. Mere retention of money entrusted to a person without any misappropriation, even though he was directed by the person to pay it to so and so, or to deal with the money in a particular way, is not a criminal breach of trust; unless there is some actual user by him, which is in violation of law or contract there is no criminal breach of trust; and even if there is such user, there must be a dishonest intention." In the present case, it it significant that the appellant failed to hand over the sums. when directed to do so by the Regional Manager. Appellant even failed to hand over his registers etc. and left Mandi for Bilaspur without permission. The conduct of the appellant was inconsistent with his plea of bona fides. when directed to do so by the Regional Manager. Appellant even failed to hand over his registers etc. and left Mandi for Bilaspur without permission. The conduct of the appellant was inconsistent with his plea of bona fides. [12] (vi) In re C. Raghava Menon, AIR 1941 Mad 250 . There, a learned Judge of that High Court upheld the well-known principle that: "Mere retention of money would not warrant a conviction under Section 403'' Here, as already shown, it is not a case of mere retention of money, but failure to hand it over, when required to do so by the superior officer. [13] (vii) Gopal Krishan Majumdar v. State of Tripura, AIR 1955 Tripura 35. There, the learned J.C. of Tripura indicated that: "Every breach of trust is not criminal. It may be intentional without being dishonest or it may appear to be dishonest without being really so. In such cases, the Court should be slow to move and this caution is all the more necessary because there is a tendency to secure speedy results by having recourses to criminal law. It is only when there is evidence of a mental act of fraudulent misappropriation that the commission of embezzlement becomes an offence punishable as criminal breach of trust. It is this mental act of fraudulent misappropriation that distinguishes an embezzlement, amounting to a civil wrong or tort from the offence of criminal breach of trust punishable under Section 406, Penal Code. Every offence of criminal breach of trust involves a civil wrong in respect of which the complainant may seek redress in a civil Court; but every breach of trust, in the absence of mens rea, is not criminal." In the present case, I have already referred to the conduct of the appellant, which is inconsistent with, his plea of bona fides. [14] The learned Government Advocate for the respondent, on the other hand, urged that the conduct of the appellant in retaining the money unduly long, his failure to hand over the same to the cashier, when required to do so by the Regional Manager and his abrupt departure for Bilaspur without permission and without handing over charge of his records and the sums, in question, are a clear pointer to his dishonesty. He further contended--and in my opinion with considerable force--that it is wrong to say that these sums were left with the appellant by the drivers concerned as a private arrangement. Mr. Vaidya invited my Attention to the statements of Mr. B. S. Gautam, formerly Accounts Officer in the Transport Department (P.W. 24) and Mr. B. C. Paul, Regional Manager (P.W. 10). According to Mr. Gautam, the Accountant-General Punjab (who is also Accountant-General for this territory) had issued some special instructions regarding the method of keeping accounts etc. in transport offices. According to these instructions, it was the duty of the Manager of the booking-office to remit daily all cash receipts in a sealed box along with Form No. X (way bill form). In the absence of Managers for booking-offices, booking-clerks were put in charge. Mr. Gautam had inspected the Mandi booking-office on 18-7-1953. At the time of his inspection, he found that the booking-clerk (none other than the present appellant) was not remitting cash promptly daily. His cash book was also found incomplete. Mr. Gautam then directed him to deposit cash daily without fail and make up-to-date entries in the cash book. Ex. P.A.K is the relevant inspection note. [15] The statement of Mr. Paul, Regional Manager (P.W. 16) is also to the same effect. The booking-clerk was bound to deposit all cash received by him during the course of any one day with the cashier the following morning, along with Form No. X duly filled in. He was also bound to make the necessary entries in his cash book. On receipt of a report, Ex. P.Z., from Tilak Raj (P.W. 9), clerk in the Transport Office on 7-6-1954 Mr. Paul direced the appellant to deposit all monies with him without delay. The appellant, however, failed to do the needful. Instead, the appellant put in an application for 8 days leave and without handing over charge to Rup Chand, booking-clerk, as directed, he left Mandi and went away to Bilaspur. The conduct of the appellant, under the circumstances, cannot be considered bona fide. Mr. Kedar Ishwar for the appellant relied upon the statement of Wazir Singh, driver (P.W. 10). in further cross-examination under Section 256, Cr. P. C. on 19-6-1956, to the effect that he had requested the appellant either to deposit the money with the cashier or keep it with him till he came again and took it. Mr. Kedar Ishwar for the appellant relied upon the statement of Wazir Singh, driver (P.W. 10). in further cross-examination under Section 256, Cr. P. C. on 19-6-1956, to the effect that he had requested the appellant either to deposit the money with the cashier or keep it with him till he came again and took it. It is noteworty that when Wazir Singh was first examined on 29-3-1956 the version given by him was rather different. He had stated then that he used to leave the cash with the booking clerk with the direction that it be deposited with the cashier on his behalf. In his own words, this was done with a view to "facilitate the deposit of money." Mr. Vaidya for the respondent rightly pointed out that the appellant not only received the sums in question but also the connected papers, e.g. Form No. X etc. and also entered acknowledgments (receipts) in the Log Books of the drivers concerned. Why should the appellant do this, if, as I am asked to believe, this was private arrangement? No explanation was forthcoming as to whether the appellant took any steps to return these sums to the drivers concerned, for so many days. I am, therefore, unable to accept appellant's learned counsel's contention that there was no entrustment with the appellant. In Lal Chand v. The State, AIR 1950 Ajmer 76, cited by Mr. Vaidya, it was held that: "For the purpose of S. 405, it is not necessary that entrustment should be express. An implied entrustment will suffice." [16] A similar view was taken in Radha Kishan v. The State, AIR 1951 Ajmer 15, where the decision was: "In a prosecution under Section 409, Penal Code, the prosecution has to prove that the accused was entrusted with property. Where the cash at treasury is actually handled from day to day by the cashier, it cannot be said that he was not entrusted with the cash, even though the ultimate responsibility for the cash was that of the Treasurer." On the same analogy, it can be said here that although the ultimate responsibility for the sums, in question, was that of the adds cashier, nevertheless, there was an implied, if not expressed, trust in favour of the appellant. [17] The appellant may have been over-worked, but that is not sufficient explanation for his failure to deposit the moneys when called upon to do so by the Regional Manager. Far from complying with the superior officer's order, the appellant left Mandi without permission and went away to Bilaspur on a plea of illness. If he was well enough to travel to Bilaspur, he could have certainly handed over the monies and the relevant papers to Rup Chand, booking-clerk, as directed by the Regional Manager. In Bangi Ram v. State of Himachal Pradesh, Cri. App. No. 5 of 1955, decided by this Court on 10-7-1956: (1957 Cri. L.J. 131), I had occasion, inter alia, to refer to the following authorities:-- (1) Akshay Chandra Bose v. Emperor, A.I.R. 1934 Cal 532. There, a Division Bench of the Calcutta High Court pointed out that: "Mere retention of money would not necessarily raise a presumption of dishonest intention; but it is a step in that direction. The fact that money entrusted to be used for a particular purpose, was not used for such purpose that there was retention for a sufficiently long time, would justify the inference that the accused did not intend to pay." 2. Emperor v. Chaturbhuj Narain, AIR 1936 Patna 30. There, a Division Bench of the Patna High Court remarked that: "It is not necessary or possible, in every case of criminal breach of trust, to prove in what precise manner, the money was spent or appropriated by the accused, because under the law, even temporary retention is an offence, provided that it is dishonest but the essential thing to be proved in case of criminal breach of trust, is whether the accused was actuated by dishonest intentions or not. The question of intention is not a matter of direct proof, but the failure to account for the money proved to have been received by the accused, or giving a false account, as to its use, is generally considered to be a strong circumstance against the accused.'' 3. State v. Talati Devraj Ruda, AIR 1955 Sau 100. There, a Division Bench of that High Court was of the view that : "After the prosecution discharges the burden of proving entrustment, it is not necessary for it to prove in what manner the moneys alleged to have been misappropriated have been spent by the accused. State v. Talati Devraj Ruda, AIR 1955 Sau 100. There, a Division Bench of that High Court was of the view that : "After the prosecution discharges the burden of proving entrustment, it is not necessary for it to prove in what manner the moneys alleged to have been misappropriated have been spent by the accused. If it is shown that money entrusted to the accused for a particular purpose was not returned by him in accordance with his duty, it lies on him to prove his defence. The question is one of fact in each case and unexplained retention of money for a long time might well be sufficient to raise the inference of guilt." 4. I may also refer to Dewasikhamani Asari v. Emperor, AIR 1926 Mad 727 , where Jackson, J., observed that: "Where a Court Amin collects a large sum of money and does not pay it into Court until five months have elapsed, it is a fair presumption that he has misappropriated the amount, unless he can explain his action." 5. Reference may also be made to Gopi Ram v. the State, AIR 1954 Madh. Bha. 21. There, Dixit, J., remarked that: "It is not necessary or possible, in every case of criminal breach of trust, to prove in what precise manner the money was spent or appropriated by the accused, because under the law, even temporary retention is an offence provided that it is dishonest but the essential thing to be proved in case of criminal breach of trust is whether the accused was actuated by dishonest intention or not. As the question of intention is not a matter of direct proof, the Courts have from time to time laid down certain broad tests, which would generally afford useful guidance in deciding, whether in a particular case the accused had mens rea for the crime. So in cases of criminal breach of trust the failure to account for the money proved to have been received by the accused or giving a false account as to its use is generally considered to be a strong circumstance against the accused." [18] At the risk of repetition, I may point out that the appellant, not only failed to remit these sums to the cashier within a reasonable time--in-spite of the fact that in July 1953, he had been warned by the Accounts Officer Mr. B. S. Gautam to do so--but further he failed to hand over the sums, with relevant papers, to Rup Chand, booking-clerk, when directed to do so by the Regional Manager on or after 7-6-1954. On the other hand, the appellant went away to Bilaspur on a plea of illness and made good the sums only when he returned on 26-6-1954. I am unable to believe, therefore that the sums in question were reposing in the safe in the Mandi booking-office. If they had actually been there, where was the difficulty in opening the safe and handing over the monies to Rup Chand, as directed by the Regional Manager? It seems to me that the monies had been put to other uses and the appellant needed time to raise an equivalent amount. Hence, his abrupt departure for Bilaspur. [19] Such conduct on the part of the appellant is not compatible with the plea of bona fides. [20] Finally Mr. Kedar Ishwar urged that the sanction, Ex. P.A.S., accorded by the Regional Manager was defective, since it does not disclose the facts of the case. This matter has been fully discussed by the trial Judge and needs no further comments. The sanction has to be read along with its enclosures, i.e. letter dated 26-7-1955, from the Investigating Officer. In view of all that has been said above, I hold that the appellant, was rightly convicted of dishonest misappropriation--although it was only temporary-- punishable under Sec. 5 (2) of the Prevention of Corruption Act. [21] (B). The appellant is not a previous convict. The learned trial Judge has remarked that supervision was poor in the Mandi region. Perhaps, if the appellant's superior officers had been vigilant, this offence would not have been committed, I further notice that the trial dragged on for nearly ten months. There were as many as 33 hearings. The appellant was represented by a counsel throughout. The appellant was under suspense for a long time. I further understand that as a result of conviction, he has been dismissed. Under these circumstances, I am of the opinion that the fine of Rs. 400/-, inflicted by the Court below, is excessive and it should be reduced to Rs. 100/-. ORDER [22] The result is: while I maintain the conviction of the appellant of an offence under Section 5(2) of the Prevention of Corruption Act, 1947, I reduce the fine from Rs. 400/-, inflicted by the Court below, is excessive and it should be reduced to Rs. 100/-. ORDER [22] The result is: while I maintain the conviction of the appellant of an offence under Section 5(2) of the Prevention of Corruption Act, 1947, I reduce the fine from Rs. 400/- to Rs. 100/-, in default one month's rigorous imprisonment. Fine, in excess of Rs. 100/-, if realised from the appellant, must be refunded to him without delay. The sentence of imprisonment till the rising of the Court is, however, maintained. Subject to this modification, the appeal is rejected. Appeal dismissed.