Judgment M.P.Varma, J. 1. The sole petitioner of this case has been guilty for an offence under Section 409 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three months. He was also charged under Sec. 467 of the Code but was acquitted of that charge. 2. The following few facts may be briefly stated in order to appreciate the point, which has been argued before me. The petitioner was working as an office clerk in the Dinapore Nizamat Municipal-Sty and during the absence of a tax Daroga he did his work also in addition to his own duties. The prosecution case is that he collected Rs. 123.58 paise during the period from 11-6-62 to 3-7-62, which was further extended upto 20-7-1962. The tax collected by the petitioner was not deposited with the cashier of the municipality but he kept amount as well as counter foil receipt books, under which the collection was made, at his house. The Municipal Chairman asked him on 20-7-1962 as to whore the counter foils of the receipts were. The petitioner informed him that they were at his house. He ordered him to bring them and the petitioner brought them. Then he was further asked as to where the amount was which he had collected under those eight receipts. The petitioner gave out that the amount was at his house and he would go and fetch the same. This he did on that very day and the money was deposited in the account of the municipality. Later on 24-7-1962 another Assistant Tax Daroga made a report (Ext. 7) about the interpolation in the receipts, which had been issued by this petitioner. The matter was enquired into and the Chairman of the Municipality lodged F. I. R. in this case on 30-7-1962. There was enquiry by the police and charge sheet was submitted against this petitioner. He was first tried, after commitment, by the 1st Assistant Sessions Judge of Patna, who convicted him and sentenced him to three months rigorous imprisonment under Sec. 409, Penal Code. Against this order of conviction there was an appeal which was heard by the learned 2nd Additional Sessions Judge of Patna, who confirmed the order of conviction and sentence. This revision is against the order of the learned Additional Sessions Judge. 3. Learned counsel for the petitioner. Mr. Against this order of conviction there was an appeal which was heard by the learned 2nd Additional Sessions Judge of Patna, who confirmed the order of conviction and sentence. This revision is against the order of the learned Additional Sessions Judge. 3. Learned counsel for the petitioner. Mr. S. N. Mishra, has raised only legal points before me. His first contention is that the learned Court was not justified, after giving a finding of acquittal under the charge of forgery, to raise a presumption against the petitioner for his conviction under Sec. 409, Penal Code, relying on some interpolations in the receipts. In my opinion, this argument is well founded, when the prosecution failed to establish that the petitioner had made forgery or interpolations in those receipts, even after the examination of a handwriting expert, I do not think that any such adverse inference should have been drawn by the learned Judge so as to impute a motive to the petitioner for committing an offence under Sec. 409, Penal Code. Any way, this remark of the Court below would not weigh much because I find that the second point, raised by learned counsel, would secure acquittal of his client. He has argued that accepting the facts of the case at their face value no offence under Sec. 409, I. P. C., had been made out. For a criminal breach of trust by a public servant it is necessary that the public servant should commit criminal misappropriation or dishonest misappropriation because in the definition of criminal breach of trust, which is contained in Sec. 405 of the Code, it is given out that whoever being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property etc. etc. shall be said to commit criminal breach of trust. In this case the evidence shows that the collected money had not been misappropriated or converted to the use of the petitioner. He was ready with the money when he was asked about it. 4. It has been held in several cases that mere retention of a property is not enough to show that the person, who had retained the same, had committed criminal breach of trust or criminal misappropriation. He was ready with the money when he was asked about it. 4. It has been held in several cases that mere retention of a property is not enough to show that the person, who had retained the same, had committed criminal breach of trust or criminal misappropriation. In the case of Chelloor Manknkal Narayan Ittirvi Nainbudiri V/s. State of Travancore-Cochin, AIR 1953 SC 478 their Lordships observed while dealing with a case of like nature that the prosecution has to establish first of all that the accused was entrusted with some property and it has to be established further that in respect of that property so entrusted there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract. A similar case came up before the Gujarat High- Court -- vide the case of Desai Champaklal Nemchand V/s. State, 1961 (1) Cri LJ 654 (Guj) where it was observed that temporary retention of money does not by itself amount to criminal breach of trust. It amounts to that offence only if from the fact of retention of property entrusted, the ingredient of dishonest misappropriation or conversion etc. can be correctly inferred. Hence even if a person Is required under rules to deposit the amount entrusted in the Treasury within a few days, the failure to do so will not by itself amount to the offence of criminal breach of trust unless it is proved that there was dishonest misappropriation. In an earlier case of Calcutta High Court a similar view was taken in the case of Major Robert Stuart Wauchope V/s. Emperor, AIR 1933 Cal 800. It was observed therein that in cases of criminal misappropriation, the prosecution must always prove misappropriation. It is not enough if it proves that the accused had received the money. The onus of proof never shifts from prosecution. 5. In the instant case there is no dispute over the fact that the tax had been collected by the petitioner from eight persons under receipts and the collected money was at once given to the Chairman when demanded. His only offence, if I am permitted to say so, lies in the fact that he did not deposit this money at once in the municipal account but he kept it at his house for some days, may be 10 to 15 days. His only offence, if I am permitted to say so, lies in the fact that he did not deposit this money at once in the municipal account but he kept it at his house for some days, may be 10 to 15 days. The only rule, which requires immediate deposit of the collected money produced by the prosecution, is Ext. 10/1, In fact, it is not a municipal rule but an order passed by the Vice-Chairman of the Dinapore Nizamat Municipality on the joint petition filed by the tax collectors of the municipality to extend the time of their attendance to the municipal office from 2-30 p. m. to 4 p. m. The order of the vice-chairman dated 19-9-1959 is to the following effect:- - "Perused the petition. The T. Cs. may be informed to attend office daily for depositing collection money at 4 p. m. instead of 2-30 p. m." A copy of this order was forwarded to all the tax collectors and tax Darogas of the Municipality. It is said on behalf of the petitioner that this order was issued in September, 1959, and he had joined the service in 1961 and this order was never brought to his notice. So clearly, it is not a rule that the collected money on a particular date should be deposited by the end of that very day. This order is vague to that extent. The tax Darogas had made a grievance that they should be allowed to come to office by 4 p. m. and deposit the collected money and this prayer was allowed. So, this order does not necessarily mean that the amount collected on a particular day had to be deposited by the end of that day. This document, in my opinion, has been misconstrued by the Courts below. 6 It was further pointed out to me that Kamta Pd. (P. W. 9) who was in charge of collection of mutation fee, deposed to the effect that hi some cases he deposited collected money after a lapse of 41 days. So, I do not find that this petitioner has violated any rule of law or any legal contract. On his behalf it is further stated that he had some enmity with the Assistant Tax Daroga, who made the report (Ext. 7) and also with the Chairman of the Municipality. So, I do not find that this petitioner has violated any rule of law or any legal contract. On his behalf it is further stated that he had some enmity with the Assistant Tax Daroga, who made the report (Ext. 7) and also with the Chairman of the Municipality. Any way, this aspect of the matter need not be further discussed because after all the prosecution has to prove the ingredients of the offence beyond any reasonable doubt. It was further pointed out to me that when this petitioner joined municipal service in 1961, he deposited a cash security of Rs. 300/-. In view of this deposit it would have been sheer foolishness on his part to have dishonestly retained this lesser amount of Rs. 123.58 which amount could have been easily deducted from his security money. In my opinion, it is not a case of dishonest intention but a case of carelessness or at best neglect of duty on the part of the petitioner. It has been observed in many cases that suspicion, however, great, cannot take the place of legal evidence and a conviction cannot be based when the evidence is may be true but only when the evidence is must be true. So, when all these legal points and the evidence and the circumstances are taken into consideration, I do not think that the conviction of the petitioner is justified under Sec. 409, Indian Penal Code. 7. The result is that this revision succeeds and the order of conviction and the sentence passed against the petitioner is set aside.