JUDGMENT S.N. Singh, J. - Appellant Mahendrapal has filed this appeal against his conviction under Section 408, I. P. C. for committing a criminal breach of trust with respect to a total amount of Rs. 5,680.84 nP. during the period from the 22nd of August 1950 to the 13th of April 1960. The prosecution case in brief was that the appellant was the shop Manager of the District Cooperative Federation of Shahjahanpur. He was appointed a shop Manager and his rights and liabilities were governed by Written agreements with the Federation. He was in charge of shop No. 4 which was a fair price shop in bazar Bahadurganj. He had deposited 'Rs. 1,000/- as security money with the Society and was appointed Manager on a monthly salary of Rs. 70/- P.M. The duties assigned to the Manager was that he was to stock different kinds of grain and sugar which were sullied from the Federation and thou the grain that was supplied to hint was to be sold under his direction. He was entrusted with the grail and the sale price thereof. He was to keep daily accounts of the sale. In the course of his work it is said that he began to deposit less than the sale proceeds received per day with the result that on the 13th of April 1961 it was found that there was a balance of Rs. 6,796/- with him which he had not deposited and he was directed to deposit the aforesaid amount but he did not comply with the direction. On the 15th of April 1961 it was found that this Mahendra pal had gone away with the key of the shop and the amounts received by sale of the grain for the 13th and 14th of April 1961. When it was enquired at his place no trace of his could be found. On the 16th of April 1961 Sri Sheo Kumar Misra, Honorary Secretary of the Federation went to the shop in possession of the appellant with his joint Secretary Sri Radhey Shyam Pandey and the Additional Superintendent Sri R. B. Chaturvedi and another employee of the Federation Sri Ratkeshwar Datt. There at the shop he took a written report from one Sri Ram Pravesh a person who was put incharge of the shop by Mahendrapal and Nathu Lal weigh-man. There at the shop he took a written report from one Sri Ram Pravesh a person who was put incharge of the shop by Mahendrapal and Nathu Lal weigh-man. When this report had been taken from these two persons Mahendrapal appeared there in person and then it was enquired of him as to why he had kept the shop closed on the 15th and the 16th of April 1961. lie was asked to explain in writing about it. When this explanation was called from him lie on a pretext said that he had some urgent work at his house and did not return. When the stocks were checked from his shop it was found that in accordance with the sales there should have been Rs. 7,114/- in the account of the shop. The Honorary Secretary suspected embezzlement and a written report to take action against the appellant was made to the Deputy Superintendent of Police Shahjahanpur, through writing dated the 19th of April 1961. This complaint was made to proceed against the appellant under Sections 406 and 408 of the Indian Penal Code. 2. On receipt of this written report Sri Ram Nath Sharma, II Officer, Kotwali, went to the shop aforesaid in Mohalla Bahadurganj and got it opened by breaking the lock in presence of Sri Sheo Kumar Misra, Honorary Secretary and other employees of, the Federation including Sri Radhey Shyam Pandey (P. W. 1). Before doing this the II Officer had tried to arrest the appellant but in vain. When the inventory was prepared it was found that grain worth Rs. 1,162.89 nP. were found in the shop. After having completed the investigation Sri Rain Nath Sharma submitted a charge-sheet Ext. Ka 16 against the accused on the 3rd of June 1961. The prosecution examined nine witnesses in support of the prosecution case and a court witness Sri Ram Bharosey Chaturvedi was also examined under Section 640 of the Criminal Procedure Code. The appellant pleaded not guilty. His defence was that in the year 1961 lie gave Rs. 1105/- to Sri Radhey Shyam Pandey, Superintendent of the Federation for being deposited in his account and the latter deposited only Rs. 105/-and misappropriated the remaining amount of Rs. 1,000/-. The appellant pleaded not guilty. His defence was that in the year 1961 lie gave Rs. 1105/- to Sri Radhey Shyam Pandey, Superintendent of the Federation for being deposited in his account and the latter deposited only Rs. 105/-and misappropriated the remaining amount of Rs. 1,000/-. He further said that there was an alteration between him and Sri Radhey Shyam and it is because of this alteration that Sri Radliey Shyam got the account of the shop bungled by Sri Ram Pravesh and then launched the prosecution of the appellant. The learned II Additional Sessions Judge, Shahjahanpur who tried the case rejected the defence case and found the offence under Section 408, I. P. C. proved against the appellant and he sentenced him to four years rigorous imprisonment and also to pay a file of Rs. 4,000/- in default of which payment he was ordered to undergo one and half year's further rigorous imprisonment. 3. Sri Mahendrapal filed the present appeal against his conviction aforesaid and this appeal came up for hearing before our brother M. H. Beg, J. Sri S. N. Misra, counsel for the appellant based his main argument on a decision of Oudh Chief Court Kanhaiya Lal v. Emperor, A.I.R. 1937 Oudh 331, in which Mr. Justice Nanavutty held that "it was clear from terms of the agreement that the parties had such confidence in the integrity of one another that neither would impute to the other any criminal intent or "Mens rea" in the event of any difference arising out of wrong entries in the account books or out of any suspicion of misappropriation of money. The agreement did not amount to an agreement between the parties to stifle criminal prosecution but on account of implicit confidence the parties had in each other, the proprietor agreed that when he suspected his Manager of shaving committed embezzlement of his money, he preferred to have the matter investigated by the help of arbitrators rather than file a criminal complaint against his trusted servant." 4. Apart from this submission of his he also questioned the legality of the charge framed in this case. According to him there was no charge framed against his client about the entrustment of money for which he was convicted. The charge was in respect of sugar, Maida, Ata and Suji. Apart from this submission of his he also questioned the legality of the charge framed in this case. According to him there was no charge framed against his client about the entrustment of money for which he was convicted. The charge was in respect of sugar, Maida, Ata and Suji. Our brother rightly over-ruled the plea of Sri Misra about the defect in the charge but considering that the first question raised by him was of importance and there being no authority of this Court on the point preferred to refer the case to a larger Bench. This is how the case has come before us. We have looked into the evidence of the case and have gone through the judgment of the learned II Additional Sessions Jude, Shahjahanpur. We are of Opinion that the case against the appellant has been well established and calls for no interference by this Court. 5. The prosecution has examined nine witnesses. P. W. 1 Sri Radhey Shyam Pandey stated that he was Superintendent, District Co-operative Federation, Shahjahanpur, and it was his work to check the accounts. He gave various details as to what things were given in the charge of the appellant when he was appointed Manager of the shop. He further I stated that he checked the accounts. According to him when the accounts were checked stocks worth Rs. 6,560. 16 nil. should have been in the shop and that there should have been a deposit of Rs. 5,680.84 nP. in the account book which amount had not been deposited by the appellant and ad been embezzled by him. He also stated about the breaking open of the lock of the shop and about the Making of the accounts. He has given detail an account how the accused as asked by Sri Sheo Kumar Misra o explain the account and to make the deposits which according to the accounts fell due and how this appellant failed to comply with the direction of the Honorary Secretary. His statement clearly proves that accused had embezzled more than Rs. 5,680. 84 nP. He was fully corroborated by Sri Sheo Kumar Misra (P. W. 2) who has also given in detail the default made by the accused. It had been found that he had taken away the mire sale proceeds of the 13th and he 14th of April 1961. His statement clearly proves that accused had embezzled more than Rs. 5,680. 84 nP. He was fully corroborated by Sri Sheo Kumar Misra (P. W. 2) who has also given in detail the default made by the accused. It had been found that he had taken away the mire sale proceeds of the 13th and he 14th of April 1961. He had closed the shop on the 15th and the 16th of April 1961 and the cardholders were put to great inconvenience. On being asked to render accounts and Ito explain the accounts he did not do and the Honorary Secretary was reed to lodge the complaint against him. The evidence of these two witnesses fully established the prosecution case. The learned Sessions judge has believed the oral evidence these two witnesses and we, see no reason to differ from him in this respect. 6. Apart from this the prosecution also examined P. W. 4 Sri Jagdish Swarup Saxena who was the Godown Keeper and it was he who issued goods from time to time to the accused for his shop at Bahadurganj. It was he who made necessary entries in various registers. He has proved those registers Exts. 1, 2 and 3 maintained by the Federation according to the prescribed rules. The supply of different commodities to the accused had been well proved by this witness. P. W. 5 Sri Ramphal Misra, the cashier, was also examined to prove the various entries in the cash book. The statement of this witness as well as P. W. 7 Sri Ram Chandra Gupta in whose hand writing also entries in the registers were made clearly establish that this accused had misappropriated a sum of Rs. 5,507.54 nP. Thus we find that the charge against the appellant has been well proved by the evidence produced on behalf of the prosecution. The learned counsel for the accused relied on the agreement between the accused and the Federation Ext. Ka 59 and tried to show that the amount said to have been misappropriated had not been established. 5,507.54 nP. Thus we find that the charge against the appellant has been well proved by the evidence produced on behalf of the prosecution. The learned counsel for the accused relied on the agreement between the accused and the Federation Ext. Ka 59 and tried to show that the amount said to have been misappropriated had not been established. Even if the argument of the learned counsel based on this agreement be accepted still then there can be no manner of doubt that if the accounts are done even in the way the learned counsel wanted the same to be done there would still be misappropriation found so far as the appellant is concerned in an amount which would be much more than Rs, 4,000/- at least. In a criminal trial what is important is the mens-rea. It is not that the actual amount alleged to have been misappropriated, the amount may be more or less but if there is dishonest misappropriation of any amount the person so misappropriating would nevertheless be guilty of criminal breach of trust. As such the argument of the learned counsel based on accounts has no force. It was further argued before the learned Sessions Judge as well as before our brother M. H. Beg, J. that in view of para. 17 of Ext. Ka 59 all the disputes between the accused and the Federation were to be settled by means of an arbitration award to be made under the provisions of Co-operative Societies Act No. 2 of 1912 and it was not open to the Federation to approach the Criminal Court and prosecute the appellant for the alleged misappropriation of the amount of Rs. 5,507.54 nP. or any other amount that might be found not to have been deposited by the accused with the Federation out of the sale proceeds. It was also argued that the liability to pay the amount found due by the appellant was only civil liability and no criminal prosecution of the appellant was warranted by law. 7. The facts found proved in this case are that the appellant was appointed a shop Manager and that he was entrusted with the grains and other material for sale to the public. 7. The facts found proved in this case are that the appellant was appointed a shop Manager and that he was entrusted with the grains and other material for sale to the public. It was his duty to have maintained correct account and to deposit the sale proceeds of every day with the Federation but he failed to discharge his duties in accordance with the terms of the agreement. There was a clear entrustment with him of the grain and other materials were sold and he got the sale price thereof there will be deemed to be an entrustment of the money of the Fede. ration with the appellant. When the grain and the money of the Federation was entrusted with the appellant with a clear contract that he will deposit the sale proceeds it was not open to the appellant not to have deposited the sale proceeds and to have appropriated it to his own use. The appellant not having complied with the terms of the agreement and having appropriated the amount to his own use clearly committed a criminal breach of trust. 8. Criminal breach of trust has been defined under Section 405 of the Indian Penal Code as follows: 9. Criminal breach of trust. 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 of any legal contract, express or implied, which he has made touching the discharge oil such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust." 10. Illustration (e) of Section 405 is relevant for the purposes of this case which is as follows: (e) A, a revenue-officer, is em trusted with public money and is either directed by law, or bound by a contract, express or implied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust 11. Now looking to the definition of criminal breach of trust and the established facts of the present case it is clear that the appellant was guilty of criminal breach of trust. A dishonestly appropriates the money. A has committed criminal breach of trust 11. Now looking to the definition of criminal breach of trust and the established facts of the present case it is clear that the appellant was guilty of criminal breach of trust. the question that now arises in view of the submissions put forth on behalf of the appellant is whether in view of the agreement Ext. Ka 59 was it open to the Federation to launch the criminal complaint against the appellant and for this purpose reliance was placed on the case of Kanhaiya Lal v. Emperor(supra). Thee facts of this case are clearly distinguishable. In this case it was definitely found that no fraudulent intent on the part of the Manager to commit misappropriation of they sums alleged to have been embezzled by him had been proved but the generalisation made in this case that there could be an agreement for non-prosecution of a person even for an embezzlement made by him does not appear to be sound. In the case of Kanhaiya Lal v. Emperor (supra) it was observed : "Every breach of trust gives rise to a suit for damages, but it is only when there is evidence of a mental act of fraudulent misappropriation that the commission of embezzlement, of any sum of money becomes a penal offence punishable as criminal breach of trust under Sections 408 and 409, I . P. C. I t is this mental act of fraudulent misappropriation that clearly demarcates an act of embezzlement which is a civil wrong or tort from the offence of criminal breach of trust punishable under Sec, 408, I. P. C." 12. It is true that every breach of trust does not give rise to a criminal prosecution as held in the case of Kanhaiya Lal v. Emperor (supra), but as soon as it is found that there has been embezzlement the person who has embezzled makes himself liable to criminal prosecution. The dictionary meaning of the word "embezzle" is "to appropriate oneself by a breach of trust" and 'embezzlement' means 'a fraudulent appropriation of others property.' Therefore, as soon as embezzlement is found to be proved the person embezzling makes him self liable to criminal prosecution, for he clearly commits a criminal breach of trust as defined by Section 405 of the Indian Penal Code. There cannot be an agreement to the effect that even if there is an embezzlement the person who has embezzled will not be prosecuted and the matter will be referred to an arbitration. For permitting such an agreement would be contrary to Section 23 of the Contract Act which prohibits an agreement which would defeat the provisions of any law agreements to stiftle criminal prosecutions, could not be allowed. It has been held that agreements to stiffle criminal prosecution are bad for it is not open to parties to make a trade of felony or to take the administration of justice out of the hands of authorities and themselves determine what should be done. There cannot be any agreement that even if there is an embezzlement the matter will be referred to an arbitration and no criminal prosecution will be made I am supported in this view of mine by a case of the privy Council, Kamini Kumar Basu v. Birendra Nath Basu, 57 I.A. 117. The headnote of which runs as follows: "if it is an implied term of a reference to arbitration, and of an ekrarnama pursuant to the award, that a complaint that a non-compoundable offence under the Penal Code has been committed shall not be proceeded with, the consideration is unlawful on the ground of public policy, and the award and ekrarnama are therefore unenforceable; that is so irrespective of whether in law a prosecution has been commenced." 13. What to speak of agreements not to proceed with criminal prosecution even agreements in restraint of legal proceedings which are even civil are void in view of Sec 28 of the Contract Act unless the same could be brought under one of the exceptions provided in Section 28 of the Contract Act. It is under exception (2) that agreements to refer questions to arbitration are permitted. Section 28 of the Contract Act is as follows: 14. Agreements in restraint of legal proceedings void. "Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent. 15. Exception Saving of contract to refer to arbitration dispute that may arise. 15. Exception Saving of contract to refer to arbitration dispute that may arise. 1: This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. 16. Exception 2: Saving of contract to refer questions that have already arisen. - Nor shall this section render illegal any contract in writing by which two or more persons agree to refer to arbitration any question bet weer them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration." 17. Therefore, it is apparent that in view of Sections 23 and 28 of the Contract Act there could not be any agreement between the parties not to launch the criminal prosecution even though one of the parties was, guilty of embezzlement. With great respect to the learned Judge who decided the 'case of Kanhaiya Lal v. Emperor. We think that there cannot be any agreement not to prosecute a person for embezzlement and we agree with brother M. H Beg, J., that the said case does not lay down correct law. The learned counsel for the State has relied on the case of Jaswantrai Manilal Ahhaney v. The State of Bombay, A.I.R. 1956 S.C. 575 and his submissions are supported by head note (d) of the aforesaid ruling which is as follows: "A deprivation even for a short period is within the meaning of the expression. If the Managing Director of a bank entrusted with securities owned by the pledgor disposes of those securities, against the stipulated terms of the contract entered into by the parties, with the intention of causing wrongful loss to the pledgor and wrongful gain to the bank, there can be no question but that the Managing Director has necessary mens rea required by Section 405." 18. He has further placed reliance on the case of Fagu Ram Mahadeo Ram v. Pannalal, A.I.R. 1958 Patna 272 for both the propositions i.e. in respect of defective charge and criminal breach of trust and we find that this authority also does support his submissions. 19. He has further placed reliance on the case of Fagu Ram Mahadeo Ram v. Pannalal, A.I.R. 1958 Patna 272 for both the propositions i.e. in respect of defective charge and criminal breach of trust and we find that this authority also does support his submissions. 19. Having considered the arguments submitted on behalf of the appellant on the above legal question we find that there is no force in the point of law raised on behalf of the appellant and having found that the offence against the appellant has' been well established we dismiss this appeal. 20. The Appellant is on bail, he surrender forthwith and serve out the, sentence imposed on him.