JUDGMENT - J.R. VIMADALAL, J.:---This is an appeal filed by an accused against his conviction by Mr. M.H. Jadhav, Presidency Magistrate, 25th Court, Mazgoan, Bombay, of the offence of Criminal breach of trust under section 406 of the Indian Penal Code. The short facts, necessary for the purpose of this appeal, are that on the 19th of August, 1971, 168 cases of tea were entrusted by the complainant as Conoor, who carried on business in the name of M/section Kantilal Lallubhai and company, to the Kirti Transport Private Limited company of which the accused is a director, for being transported to Bombay. The goods arrived in Bombay in due course, and the complainants case is that the accused informed him of the same on the telephone, but when the complainant sent his manager, the cases were not delivered to him, though the manager paid the freight in respect of the same. The complainants case is that the accused refused to give delivery of those cases because there was a criminal case pending at a place near Coonoor in respect of some other transaction between the parties in which the accused, the other directors of the Kirti Transport company Private Limited, as well as the company itself, and some others were the accused, and the accused insisted that, that case would first be withdrawn. The plaintiffs case further is that ultimately the accused delivered a hundred and eight cases, but retained 60 cases out of the said consignment until that criminal case was withdrawn; that the said case was withdrawn as settled ; but that accused still refused to deliver that 60 cases that remained with him. The plaintiffs case is that the accused wanted the complainant to pass a letter in certain terms which also was complied with by the complainant, but the accused still failed to deliver those 60 cases, with the result that the complainant had to address a Lawyers notice dated 15th April, 1972 to the Kirti Transport Private Limited Company as well as to the accused, to which there was no reply. The complainant then filed a complaint (No. 67/w of 1972) on the 25th of April, 1972 which was dismissed for defualt on the 28th of March, 1973, and on the 29th of March, 1973 the complainant filed another complaint, out of which the present case arises. 2. The complainant then filed a complaint (No. 67/w of 1972) on the 25th of April, 1972 which was dismissed for defualt on the 28th of March, 1973, and on the 29th of March, 1973 the complainant filed another complaint, out of which the present case arises. 2. The first question that arises in a case of criminal breach of trust is, whether the property in question was entrusted to the accused, and in that connection, though at one stage in the course of the arguments before me, Mr. N.V. Vimadalal who appeared for the complainant submitted that the entrustment for the purpose of the present case is not the original entrustment at Coonoor, but the subsequent entrustment of 60 cases to the accused in Bombay pending withdrawal of the criminal case, he ultimately conceded that position was unsustainable. A reference to paragraph 2 of the complaint (Ex .F) itself shows that the entrustment on which the complainant relies is the entrustment to the branch of the said company Kirti Transport Pvt. Ltd. of the accused ad Coonoor, and indeed, that is also the basis of the lawyers notice dated 15th April 1972 addressed on behalf of the complainant. The question that arise therefore is, whether the prosecution has proved that in the present case the cases of tea in question were entrusted by the complainant to the accused at Coonoor. It was sought to be contended by the learned Advocate for the complainant that entrustment to the said cases to the company of the accused amounts to entrustment to the accused himself, since the accused was a director of that company. He has further submitted that, in any event, after the goods arrived in Bombay, the accused as a director had dominion over the goods, and the accused having failed to deliver the said goods, that is sufficient to give rise to an inference of dishonest misappropriation or conversion of the said goods by the accused. 3. He has further submitted that, in any event, after the goods arrived in Bombay, the accused as a director had dominion over the goods, and the accused having failed to deliver the said goods, that is sufficient to give rise to an inference of dishonest misappropriation or conversion of the said goods by the accused. 3. As far as the first of those contentions of the learned Advocate for the complainant is concerned, as held by me in my judgement (dated 16th January, 1975 in Criminal Appeal No. 952 of 1973), there is no scope in criminal law for invoking the principle of vicarious liability, save in certain exceptional cases with which we are not conceded, and that it is incumbent on the prosecution to prove each of the ingredients of the offences of criminal breach to frust strictly against the accused person himself. As observed by me in my judgement in the said case, the prosecution must, therefore, prove (1) that the entrustment of the goods was to the accused personally, or to his servant or agent to his express knowledge or under his express direction ; and (2) that the dishonest misappropriation was also committed by the accused himself for his own benefit. I pointed out in my said judgement that to take a contrary view would make it extremely hazardous for people to carry on business, particularly if they do so in a big ways and have a large establishment, and that every case in which there may be civil liability in damages for vreach of trust does not necessarily amount to criminal breach of trust. I taking that view in my said judgment, I have approved of the view taken by the Court of the Judicial Commissioner of Tripura in the case of (Gopal Krishan v. State of Tripura)1, Cri. Appeal No. 952 of 1973 to the same effects. Following my own judgement in said Criminal Appeal No. 952 of 1973, and for the reasons stated therein, I hold that, in the present case also, it was necessary for the prosecution to prove that the cases of tea in question were entrusted by the complainant to the accused personally, or if the same were entrusted to the servants or agents of the accused, they were entrusted to them to the express knowledge or under the express directions of the accused. There is no such evidence in the present case, and indeed, there could be none, for though it is well-settled that a director had the dual capacity of being an agent for the company as well as a trustee of the companys property, there is no question of the servants or agents of the company at coonoor being the agents of the accused personally. There is also nothing on record to show that the entrustment of the goods to the servants or agents of the company at Coonoor, was to the express knowledge or under the express directions of the accused. This limb of Mr. Vimadalals argument must, therefore, be rejected. As far as the second limb of Mr., Vimadalals argument on the question of entrustment is concerned, it is, in my opinion, based on a misreading of the clear terms of section 405 of the Indian Penal Code which defines the offence of criminal breach of trust. One of the basic ingredients of the offence defined by that section is that the accused must be entrusted with property, or with dominion over property. It is clear, on a plain reading of that section, that the dominion over property, to which the said section refers, must be a dominion arising out of the entrustment of that dominion to the accused, and that the mere fact tat in the ordinary course of the transaction the accused may, at some stage, acquire control over the property cannot be sufficient for the purpose of satisfying this ingredient of the offence or criminal breach of trust. Happily, I find that this view, which I have taken and which I conveyed to the learned Advocate for the complainant in the course of the hearing, is supported by the decision of the Supreme Court in the case of (Velji Raghavji v. The State of Maharashtra)2, A.I.R. 1955 Tri. 35. Decided on 16-1-75, vimadalal J., H.C. Bom. where this precise point is dealt with by that Court. The question which arose in that case was, whether a partner of a firm can be convicted under section 406 of the Indian Penal Code on the ground of his failure to account for moneys belonging to the firm in which he was a partner. where this precise point is dealt with by that Court. The question which arose in that case was, whether a partner of a firm can be convicted under section 406 of the Indian Penal Code on the ground of his failure to account for moneys belonging to the firm in which he was a partner. In following the appeal and setting aside the conviction of the accused who was the partner concerned, the Supreme Court laid down as follows (at page 446) : Upon the plain reading of section 405, Indian Penal Code, it is obvious that before a person can be said to have committed criminal breach of trust it must be established that he was either entrusted with or entrusted with dominion over property which he is said to have converted to his own use or disposed of in violation of any direction of law etc. Every partner has dominion over 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. In order to establish entrustment of dominion over property to an accused person the mere existence of that persons dominion is not enough. "It must be further shown that his dominion was the result of entrustment, Therefore, as rightly pointed out by Harris, C.J., (in another case), the prosecution must 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. This passage from the judgment of the Supreme Court in Velji Raghavjis case leaves no room for doubt that the dominion which is required by section 405 must be a dominion which has been entrusted to the accused person by a specific agreement between him and the complainant. The second limb of Mr. Vimadalals argument must, therefore, also be rejected. It was not even sought to be argued before me, that the property in question was, by a specific agreement, entrusted to the accused personally at coonoor, and indeed, there cane be no doubt that it was not entrusted to him there. The second limb of Mr. Vimadalals argument must, therefore, also be rejected. It was not even sought to be argued before me, that the property in question was, by a specific agreement, entrusted to the accused personally at coonoor, and indeed, there cane be no doubt that it was not entrusted to him there. In that view of the matter, the very first and basis ingredient of the offence of criminal breach of trust not having been proved in the present case, this appeal must succeed and the conviction of the accused must be set aside. 4. That, however, is not all. The prosecution has, in the present case, also failed to prove that the dishonest misappropriation or conversion of the said 60 cases was by the accused personally. The acts attributed by the complainant to the accused after the arrival of the goods in Bombay were, it obvious, all acts done by the accused on behalf of the company in his capacity as a director thereof. There is no evidence whatsoever to show that the accused derived the goods to the complainant. The company is not the accused in the present case. Under those circumstances, in my opinion, the prosecution has, in the present case, also failed to prove the second essential ingredient of the offences of criminal breach of trust. Even if wrongful loss were caused to the complainant by reason of the non-delivery of the said 60 cases, it was the company which caused that loss and not the director through the instrumentality of whom the company acted. It is a platitude to say that in law a company is a distinct legal entity, and, under those circumstances. It would be wrong to identify the acts done by a company through its director as the acts of the director personally. 5. Even as far the company is concerned, the defence which appears to have been taken was that the company had a lien on the goods for godown charges and was not bound to deliver the goods to the complainant until those charges were paid. It is true that one would have accepted that defence, if it were bona fide, to have come out in the reply to the lawyers notice dated the 15th of April, 1972, which, on the face of it, shows, was sent by registered post. It is true that one would have accepted that defence, if it were bona fide, to have come out in the reply to the lawyers notice dated the 15th of April, 1972, which, on the face of it, shows, was sent by registered post. The acknowledgement of the receipts of that notice is not on the record, but one may well presume under section 114 of the Indian Evidence Act that this letter which, as the postal slip which is on record shown, was posted, was in ordinary course delivered to the accused. One may, however, also take judicial notice of the fact that registered letters in this country take a few days to be delivered and do not reach the addressees on the very next day. The complainant seems to have been in an indecent hurry to rush to a Criminal Court, and without giving the accused a reasonable opportunity of replying to the said notice dated the 15th of April, 1972 (Ex .E)., the complainant filed his first complaint (No. 67/w of 1972) on the 25th of April, 1972. Once that complaint was filed, the accused was not bound to send a reply, and it was in the criminal proceedings that were initiated on the subsequent complaint that this defence has first come out, Under those circumstances, in my opinion, there was no reasonable opportunity to the accused to have come out with that defence at any earlier stage. And it cannot be said that the defence of a lien which he has raised in the trial Court is merely a pretence and is not bona fide The mere fact that the defence may ultimately turn out to be not sustainable in law cannot help the prosecution, unless it is shown to have been merely in the nature of a pretence, and not bona fide. In the present case, however there is material which would show that the defence cannot even be said to be not sustainable in law. There is a statement contained in the complainants own letter dated 5th April, 1972 (Ex. No 1) which shows that there was an agreement to keep the goods in question with the Kirti Transport Pvt. Company Limited under lien, though the precise nature of that lien is not set out in that letter. There is a statement contained in the complainants own letter dated 5th April, 1972 (Ex. No 1) which shows that there was an agreement to keep the goods in question with the Kirti Transport Pvt. Company Limited under lien, though the precise nature of that lien is not set out in that letter. Apart from an express contract, a lien may also arise as a result of law, as for instance, the lien of a bailee under section 170 of the Indian Contract Act. I do not propose to consider whether that was such a lien in existence in the present case, but ruffice it to say, that there is material and the legal position also shows that the plea of a lien cannot be said to be unsustainable in law. 6. On any view of the matter, therefore, the conviction of the accused, in the present case, cannot stand. The appeal is allowed and the conviction was well as the sentence passed upon the accused by the trial Court set aside. The accused is acquitted and discharged. I am told that the accused has paid the fine. The fine, if paid, should be refunded to the accused. I also set aside the order of the learned trial Magistrate directing the 60 cases of tea to be delivered to the complainant. Since those sixty cases of tea were produced in the trial Court by the accused and since M/section Kirti Transport Pvt. Limited Company have claimed a lien over the same, in my opinion, it would be wrong on the part of the Court to direct tat the said cases should be delivered to the complainant to the prejudice of that lien, even though they admittedly belong to the complainant. I therefore, order that the sixty cases of tea produced in the trial Court should be handed back to the accused. ------