JUDGMENT The sole appellant of this case, Sakaldeo Ram has been found guilty under Section 409 of the Indian Penal Code for having committed criminal breach of trust in respect of a sum of Rs. 3,900.31 paise. The period of defalcation is said to be between 30th July, 1960 and 29th July, 1961, that is, one year. 2. The case of the prosecution, in short, is that this appellant was working as the Secretary of Paura Pakri Harijan Labourers Co-operative Society Ltd. (hereinafter referred to as the '•Society"). In this capacity, he used to draw money from the Central Co-operative Bank, Hajipur, and he also realised the loans which the members of the aforesaid Society had taken from the Society and he was to deposit those monies into the Central Co-operative Bank. During the period aforesaid he realised a sum of Rs.3,900.31 paise and did not account for the same. He did not deposit this money in the Central Co-operative Bank, in spite of efforts made by the Co-operative Extension Supervisor. This Supervisor examined the papers of this Society on the 3rd January, 1962, and detected this defalcation. The local auditors of the Society bad also found, as a result of their inspection of the records, that this appellant was in the habit of keeping heavy cash balance with himself for no apparent purpose. The Extension Supervisor submitted a report concerning this defalcation to the Block Development Officer of Lalganj and the latter sent this report to the Sub-divisional Magistrate, Hajipur, who took cognizance of the case and transferred it to the Court of a. Munsif-Magistrate for disposal. The learned Munsif-Magistrate held inquiry under the provisions of Chapter XVIII of the Code of Criminal Procedure and committed this appellant to the Court of Sessions to stand his trial. 3. The appellant raised a plea in the court below that he was not guilty under the provisions of Section 409 of the Indian Penal Code; he did not commit any offence, rather he bad been falsely implicated in the case at the instance of the officers of the Society. This plea did not find favour with the learned Fifth Assistant Sessions Judge of Muzaffarpur, who found him guilty under Section 409 of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment for five years and also to pay a fine of Rs. This plea did not find favour with the learned Fifth Assistant Sessions Judge of Muzaffarpur, who found him guilty under Section 409 of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment for five years and also to pay a fine of Rs. 4,000/- or, in default to suffer further term of rigorous imprisonment for two years. 4. Learned counsel for the appellant, Mr. Shivanandan Roy, bas not disputed the finding of fact before this Court. His argument has been that, even if the appellant realised this money of the Society, he noted those amounts in cash and other books of the Society, he had no criminal intention and so he cannot be criminally prosecuted. If the Society wants to realise its money, according to learned counsel, a civil suit can be brought against the appellant. He further argued that there was no "entrustment') in the eye of law of the alleged money to this appellant, and, according to the bye-laws of the Society, the Treasurer was responsible for the safe custody of the money; he daily used to sign the cash bock of the Society and so it was his duty to take the money from the Secretary, who under the bye-laws, had nothing to do with any such money. 5. The prosecution bad examined as many as 36 witnesses in the case in support of its allegation. Out of them, P.W's 3 to 6, 8, 14, 21, 24 to 28 and 30, most of whom are members of the Society, have proved the realisation of loans by the appellant on different occasions. Most of these witnesses have stated that they took loan from the Society and thereafter repaid the loan to this appellant. In Paragraph 9 of his judgment, the learned Assistant Sessions Judge has referred to the Evidence of each such witness, who has said concerning the taking of loan from the Society and repayment of that loan to the Secretary. As their evidence is not challenged I do not want to repeat the same, P.W's 9 to 13 did not support the case of the prosecution and they were declared hostile. P.W's 19, 20 and 29 were tendered. Over and above this, this appellant is said to have made an endorsement at page 56 of the Jama Kharach Bahi (Ext. As their evidence is not challenged I do not want to repeat the same, P.W's 9 to 13 did not support the case of the prosecution and they were declared hostile. P.W's 19, 20 and 29 were tendered. Over and above this, this appellant is said to have made an endorsement at page 56 of the Jama Kharach Bahi (Ext. 3) to the effect "Mere jime tabbil ke roop men aj dinank 3.1.62 ko 3900.31 Na. Pa. hai". Of course, an argument was advanced on behalf of the appellant concerning this endorsement that it was taken under coercion or duress. But, as the learned Assistant Sessions Judge has observed, there was no evidence to accept the plea of coercion or undue influence. On behalf of the appellant, no plea was taken that this amount was deposited by him in the bank. There are several endorsements on this page of the Jama Kharach Bahi. But we are directly concerned with Ext. 3. Perhaps, in view of this overwhelming evidence, learned counsel for the appellant did not raise any contention against the finding of fact. His main contention concerns the legal aspect of this matter. 6. Learned counsel has drawn my attention to the bye-laws of the Society. Rule 12 (3) lays down that the funds of the Society shall be kept in the custody of a Treasurer to be elected at the general meeting on such conditions as may be determined by the Managing Committee. Rule 30 reads as follows :- “30. Duties of Treasurer – The Treasurer shall take change of all money received by the Society from Government and bank members and outsiders and shall make all disbursements in accordance with the decision of Managing Committee. He shall sign the cash book in token to its correctness and as custodian of the case balance. Duties of Treasurer – The Treasurer shall take change of all money received by the Society from Government and bank members and outsiders and shall make all disbursements in accordance with the decision of Managing Committee. He shall sign the cash book in token to its correctness and as custodian of the case balance. He shall be bound to produce the balance for verification at every meeting of the Managing Committee and also whenever called upon to do so by a Supervising Officer of the financing bank or departmental officer." He also referred to Rule 29 which deals with the duties of the Secretary, and the relevant duty provided in sub-rule (4) is "to keep accurately and up-to-date an accounts and books required for the transaction of business of the Society” On the basis of these bye laws, learned counsel has submitted that the entire responsibility for keeping this money lay with the Treasurer, and if he did not take the money collected on various dates from the Secretary, the responsibility lay on his head and the Secretary cannot be punished for defalcation. He furl her argued that the Secretary had no dishonest or mala fide intention concerning the amounts received by him from time to time inasmuch as he entered those amounts in the cash book of the Society so, be had no guilty intention, The learned Assistant Sessions Judge has pointed out that, both the Secretary and the Treasurer are closely related and it may be that on account of this close relationship the Treasurer connived at the Secretary's keeping the money with himself and did not insist on taking the cash balance from him and keep the same with himself .(Treasurer). I do not know whether the treasurer has been departmentally proceeded against. Any way, in the present case we are concerned with the doings of the Secretary. The matter is very plain and simple. The Secretary has received the money on behalf of the Society and he should account for that money when asked for. If he does not do so, his mala fide or criminal intention is there. In such cases, the civil liability of the person who receives the money and does not account for the same cannot be ruled out. But the real question to be determined here is whether his criminal liability is there. If he does not do so, his mala fide or criminal intention is there. In such cases, the civil liability of the person who receives the money and does not account for the same cannot be ruled out. But the real question to be determined here is whether his criminal liability is there. Mere breach of contract cannot be made Synonymous with criminal breach of trust nor with cheating. In cheating the dishonest or fraudulent intention must be shown to be present from the very inception of the transaction. In criminal breach of trust there may not be the criminal intent present at the time of the receipt of the money. The property in respect of which criminal breach of trust can be committed must be either the property of some person other than the person accused or a beneficial interest in Of ownership of it must be in some other person and the offender must hold such property on trust for such other person or in some way for that person's benefit. In view of the bye-laws which may give rise to different consideration, I think the appellant ought to have been convicted under Section 406 of the Indian Penal Code. The definition of criminal breach of trust bas been given in Section 405 of the Indian Penal Code, and it lays down as follows :- ) “405. Whoever, 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 of such trust, or wilfully suffers any other persons so to do, commits 'criminal breach of trust'" It is, therefore, clear that trust implies confidence by one man in another. In the instant case, the members who had repaid the loans had put trust in the Secretary knowing that he was occupying such a responsible position that the money could be paid to him and he was competent to receive the same on behalf of the Society. In the instant case, the members who had repaid the loans had put trust in the Secretary knowing that he was occupying such a responsible position that the money could be paid to him and he was competent to receive the same on behalf of the Society. If the Secretary bad clear and honest intention, be should have directed those payers to go to the Treasurer and band over the money to him, at the same time making proper entries in the Jama Kharach Bahi. This he did not do. "Entrusted" is not necessarily a term of law. It may have different implications in different contexts. In its most general significance all it imports is a handing over of possession for some purpose which may not imply the conferring of any proprietary right at all. I do not think much discussion is needed to explain the legal position. 7. In support of his argument, learned counsel for the appellant has referred to some decisions on the subject-matter. The case of Harekrishna Mahatab V. Emperor (A.I.R. 1930 Patna 209) lays down the propositions which are, in fact, against the appellant. In that case it was observed that in cases of criminal breach of trust 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. But the accused must not be convicted on it alone, it is only an indication or place of evidence pointing to dishonest intention and must be considered along with other facts of the case. In the instant case the glaring another fact is that the appellant himself made an endorsement (Ext.3), when the account were checked, and he accepted that he had kept this amount with himself. In the case of Rex V. Krishnan (A.I.R. 1940 Madras 329), it was observed that every payment of money by one person to another does not amount to entrustment, unless there are circumstances attending it from which one can gather that it was an entrustment, and not a mere payment. Whether in a particular set of circumstances a delivery or passing of property from one to another amounts to entrustment or not is not a point of law and the Judge has to decide the matter after taking into account all the attending circumstances. Whether in a particular set of circumstances a delivery or passing of property from one to another amounts to entrustment or not is not a point of law and the Judge has to decide the matter after taking into account all the attending circumstances. The facts of that case are quite distinct from these in the instant case. In that case Mrs. Appaswami had paid Rs. 4.000/-.each on two occasions in discharge of a mortgage for Rs. 8,000/. executed by her husband. So, on the peculiar facts of that case, this observation was made. Much reliance was placed on the case of Velji Raghavji Patel V. The State of Maharashtra (A.I.R. 1965 Supreme Court 433). But it may be pointed out at the outset that that case was in respect of a partnership business in which it was held that ordinarily a partner cannot be held to be guilty of criminal breach of trust in respect of money received or disbursed by him concerning the partnership business. In that case it was further observed that, in order to establish "entrustment of dominion" over property to an accused person the mere existence of that person's dominion over the property is not enough. It must be further shown that his dominion was the result of entrustment. In the case of a partnership every partner his dominion over the partnership property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property, but it is not dominion of this kind which satisfies the requirements of Section 405 of the Indian Penal Code. The prosecution must further establish that dominion over the assets or a particular asset of the partnership was by a special agreement between the parties entrusted to the accused person. In the absence of such evidence, a partner cannot be held to be guilty of criminal breach of trust. In my opinion, therefore, these case laws do not help the stand which has been taken on behalf of the appellant. 8. On behalf of the State my attention was drawn to the case of Babu Ram Upadhya V. Uttar Pradesh Government (A.I.R. 1958 Allahabad 584). In my opinion, therefore, these case laws do not help the stand which has been taken on behalf of the appellant. 8. On behalf of the State my attention was drawn to the case of Babu Ram Upadhya V. Uttar Pradesh Government (A.I.R. 1958 Allahabad 584). A Lucknow Division Bench of the Allahabad High Court observed in that case that "It is not necessary that this entrustment should be attended by all legal formalities required for the creation of trust. If the parties or at least the person who takes away the property does not intend to take away the property as his own or for his own benefit, but takes it away with the intention that it will continue to be the property of the person from whose possession it has been taken, this conduct will evidently create an entrustment..." Iii the present case, the situation is just like this. The Secretary received the money from the loanees not for his own personal use but on behalf of the Society and so, for all practical purposes, he was entrusted with the money. If he does not account for the money so received by him, he is guilty of criminal breach of trust. 9. In view of the fact that the Treasurer also appears to be in collusion with the appellant, and no step in the Criminal Court is said to have been taken against him, I think the ends of justice would be met if a lenient view is taken in the case of the appellant. Now, perhaps, the civil "action to recover this money is also barred. Further I it is noticed that the appellant did not commit forge or interpolation in the account books. He duty entered the amounts received by him on various dates correctly, So, taking all these facts and circumstances ill to consideration, I think the ends of justice would be met If the Jail punishment awarded to this appellant is struck down. I would, therefore, direct that the appellant shall only pay the fine which has been imposed on him to the tune of rupees four thousand, and in default of payment thereof, he shall undergo rigorous imprisonment for nine months only. Out of the fine, If realized, a sum of Rs. 3,900.31 paise shall be paid to the Society in question. 10. Out of the fine, If realized, a sum of Rs. 3,900.31 paise shall be paid to the Society in question. 10. In the result, the conviction of the appellant is altered horn one under Section 409 of the Indian Penal Code to Section 406 of that Code, and he is sentenced to pay the fine, as indicated above. With this alteration In the conviction and modification in the sentence, the appeal fails. Appeal dismissed