Anantanarayanan, J. — The appellant, Andonissamy Pillai alias Tambidorai Pillai, was convicted under sections 379, 401 and 463 of the Code Penal and sentenced by the Court of First Instance, to one month’s imprisonment. He was further directed to pay costs, and Rs. 50 as damages to the party civil, the Rev. Mother Gabriel Marie, Superior of the Convent of St. Joseph of Cluny, Kurumbagaram. When the matter came up in appeal before the Superior Court of Appeal, the conviction was confirmed, but the sentence of imprisonment was modified into a sentence of probation for five years under the French Law. The damages awarded to the party civil were also reduced to Rs. 30. The facts of the matter, as can be gleaned from the record, are as follows. There was a prior history of lease hold in respect of certain property belonging to the Convent, as between the Convent and the lessee, the appellant before us. Ultimately, there was written agreement between the parties in October, 1959, under which the appellant undertook to hold the property on lease subject to a payment of 15 kalams for the harvest. The crux of the offence with which the appellant was charged, appears from the evidence of the Rev. Mother Gabriel Marie, as reduced to writing in the record. She states that in 1960, the appellant demanded the original of the said agreement in the possession of the head of the Convent, on the ground that he had to make entries with regard to rent ; he undertook to return the document. Rev. Mother Gabriel Marie gave him the document, as she states, because she had confidence in him. Ultimately, the appellant did not return the valuable document, and it is claimed that he misappropriated it, and perhaps made away with it. The reply of the appellant to the Presiding Judge was that he did not take away the agreement, and that the only matter of controversy between the parties related to a receipt instead for payment of the 15 kalams. The Courts have disbelieved this plea of the appellant, accepted the evidence for prosecution, and convicted the appellant as aforesaid. On a careful consideration, both of the facts ana the law applicable, it appears to us to be quite clear that the conviction under Articles 379 and 401 of the Code Penal is misconceived. The Courts have disbelieved this plea of the appellant, accepted the evidence for prosecution, and convicted the appellant as aforesaid. On a careful consideration, both of the facts ana the law applicable, it appears to us to be quite clear that the conviction under Articles 379 and 401 of the Code Penal is misconceived. Article 379 relates to larceny, and the offence is defined as follows: “Any person who fraudulently takes away anything of which he is not the owner, is guilty of larceny.” (The French Penal Code, edited by O.W. Mueller, 1960, New York). In Dalloz Reportoire Pratique, Volume XII, page 1012, in the commentary contained in the chapter ‘Vol ‘(theft) there is a passage on ‘Soustraction ‘, which is the fraudulent abstraction or taking away referred to in Article 379. In correspondence with the concept of theft in the Indian Penal Code also (section 379, Indian Penal Code), the French Law appears to contemplate that the abstraction or taking away should be without the knowledge and consent of the owner, in order to render it fraudulent. Where, on the contrary, the abstraction or taking away is with the knowledge and consent of the owner, the act of removal per se does not constitute theft, though the offence of criminal misappropriation might be involved in the subsequent dishonest conversion of the object removed to the use of the person removing the object, or its subsequent destruction detrimental to the true owner. This is clear from the following passage in the French commentary that we have referred to: "il s’ ensuit necessairement de cette definition qu’il n’y a pas vol la ou’il n’y a pas soustraction, enlevement d’ un object quelconque centre le gre’du proprietarie.”, which means “It should follow necessarily from the above definition (Article 379 of the Code Penal) that there could not be any theft, when there could be no abstraction or removal of anything against the consent of the owner”. Hence, on the established facts of the record, since the inference is irresistible that the present document was removed or taken away with the knowledge, consent and willingness of the complainant (Rev. Mother Gabriel Marie), this will not be theft, though it might be some other offence. Article 408 of the Code Penal appears, on the contrary, to apply precisely to the facts, if the evidence for prosecution is accepted at face value. Mother Gabriel Marie), this will not be theft, though it might be some other offence. Article 408 of the Code Penal appears, on the contrary, to apply precisely to the facts, if the evidence for prosecution is accepted at face value. For, under this Article “any person who diverts or dissipates, to the owner’s, holder’s or depository’s detriment, any property,............given to him only by reason of lease............loan for use............or for use as specified, shall be subject to the punishments provided by Article 406”. Article 406 relates to breach of trust. Mr. Arunachalam, who has assisted us by appearing as amicus curiae, after study of the record submits the argument that, on the facts, even the offence defined in Article 408 will not be applicable. According to him, the matter really in controversy between the parties was not the document at all, but the payment of the grain rent, the factum of which was established by the appellant, and the return of possession of the property under the terms of the contract. Since the retention of the document by the appellant subsequently, even if true, was not fraudulent, learned Counsel argues that no criminal offence is involved. We do not think that it is necessary to express any opinion upon this argument. It will entirely be a matter for the Superior Court of Appeal to consider, at the re-hearing which we have to direct in the interest of justice. There can be no doubt at all that, by virtue of our powers as the Court of Cassation, we can set aside a conviction which is based upon any erroneous application of the law to the facts, and send back the concerned appeal for re-hearing and fresh judicial disposal. Since we are adopting that course in the present instance, we make no comment whatever on the argument that no criminal offence is involved, upon the evidence adduced at the trial. That will be a matter to be considered by the Superior Court of Appeal, along with the applicability of Article 408 of the Code Penal or other relevant article, excluding the article relating to larceny (Article 379) which is clearly inapplicable. We may add that the prosecution cannot be permitted to adduce any further evidence and that the re-hearing will have to be upon the evidence already on record. We may add that the prosecution cannot be permitted to adduce any further evidence and that the re-hearing will have to be upon the evidence already on record. The conviction and the directions as to costs and damages to the party civil are set aside, and the records are according transmitted to the Superior Court of Appeal at Pondicherry for disposal according to law. Following the Cassation Precedent, we further direct that the appeal shall be heard and disposed of by a Court constituted otherwise than the Court which disposed of the appeal. K.L.B. ------------- Conviction for theft set aside and rehearing ordered.