Judgment 1. This application in revision is directed against the conviction and sentence imposed upon the petitioner. He has been convicted under S. 406, of the L P. C. and has been sentenced to undergo rigorous imprisonment for six months. 2. The petitioner was given a contract for work in connection with Kohara Bandh by the Minor Irrigation Department. The agreement was signed on 1-2-1965. The work was to be carried on under the supervision of Ramjatan Me-hato (P. W. 1) Sub-divisional Officer, Minor Irrigation. The petitioner as a contractor was supplied 200 bags of cement by the Minor Irrigation Department for the construction work. On 31-5-1965 Ramjatan Mehato (P. W. 1), Kashi Nath Singh, Overseer (P. W. 6) and Ram Nath Singh, Work Sarkar (P.W. 8) were going to the work site to inspect the works. On the way at Kasap Ahar a bullock-cart with bags of cement was seen going. On inquiry, it was learnt that the bullock-cart contained 14 bags of cement which had been purchased in Black Market by P.W. 2 Rajendra Prasadat Kohara Bandh. P. W. 2 Rajendra Prasad gave statement in writing in presence of P. W.3 Satyendra Prasad Singh, P. W. 10 Satya Narain Ojha and P. W. 5 Goga, the cartman. It was obvious from the statement of Rajendra prasad that the petitioner, who was entrusted with 200 bags of cement had sold the said 14 bags to Rajendra Prasad (P. W. 2.). A written report was therefore, lodged by P. W. 1 at Udwant Nagar Police Station, on the basis thereof a formal F. I. R. (Ext. 15) was drawn up. The case was investigated by the police and charge-sheet submitted against the petitioner. The petitioner; was tried for having committed an offence under S. 406 of the Indian Penal Code and was convicted and sentenced as stated above by the trial court. An appeal by the petitioner proved fruitless. The lower appellate court affirmed the conviction and sentence imposed upon the petitioner. Hence the petitioner filed the present application before this Court. 3. The defence of the petitioner was that he had been falsely implicated, as he had filed several petitions against P. W. 1, who was the Sub-divisional Officer Minor, Irrigation Department at the time. Both the courts below concurrently found that the petitioner had been entrusted with 200 bags of cement by the Minor Irrigation Department. 3. The defence of the petitioner was that he had been falsely implicated, as he had filed several petitions against P. W. 1, who was the Sub-divisional Officer Minor, Irrigation Department at the time. Both the courts below concurrently found that the petitioner had been entrusted with 200 bags of cement by the Minor Irrigation Department. It was also found that the petitioner had sold 14 bags of cement to Rajendra Prasad (P. W. 2) out of the 200 bags entrusted to him. Upon those findings both the courts convicted and sentenced the petitioner. 4. The only point urged in support of the rule issued by this Court was that there was no entrustment of cement by the Minor Irrigation Department and, therefore, the conviction of the petitioner was illegal. It was contended that the cement had been sold to the petitioner by the Minor Irrigation Department on creit and therefore, no offence of criminal breach of trust had been committed by him. In my view, this submission is entirely untenable. It was not a case of sale on credit to the petitioner, but a case of entrustment of 200 bags of cement. Ex. 2 is a hand receipt It is a receipt in token of receipt of 200 bags of cement from the Sub-divisional Officer. The receipt was signed by the petitioner and is dated 9-5-65. In order to appreciate whether it was a case of entrustment of 200 bags of cement or sale on credit thereof to the petitioner, the contents of Form F-2 in which the agreement was executed are important. The agreement was marked as Ext. 14 at the trial. Clause 9 of the agreement clearly shows that material was to be supplied by the Engineer-in-Charge for the works undertaken by the contractor. Clause 9 provides that the contractor shall be supplied with materials and stores as are required from time to time to be used by him for the purposes of the contract only, and the value of the full quantity of materials and stores so supplied at fee rates specified in the scheme may be set off or deducted from any sums then due. The following sentences in clause 9 of the agreement clinch the issue:- "All materials supplied to the contractor shall remain the absolute property of Government and shall not on any account be removed from the site of the work and shall at all times be open to inspection by the Engineer-in-Charge. Any such materials unused and in perfectly good condition at the time of the completion or determination of the contract shall be returned to the Engineer-in-charge stores at the prevailing market rate or at the issue rate whichever is less if by a notice in writing under his hand he shall so require; but the contractor shall not be entitled to return any such materials unless with such consent, and shall have no claim for compensation on account of any such materials so supplied to him as aforesaid being unused by him, or for any wastage in damage to or any such materials". The sentences, quoted above, clearly show that the cement supplied to the petitioner was Government property and. that it was not, to be removed from the site of the work. Any material supplied to the petitioner which remained unused and in good condition at the completion of the works was to be returned to the Engineer-in-charge stores. In my view, therefore, there can be no question of the cement in question having been sold by the Minor Irrigation Department to the petitioner. The fact that the value of the materials consumed was to be adjusted towards the final bill of the contractor could not alter the complexion of the transaction. lt could not partake the character of a sale. It is manifest, therefore, that 200 bags of cement had been entrusted by the Minor Irrigation Department with the petitioner. In so far as the petitioner sold 14 bags of cement out of those entrusted to him clearly shows that he had committed criminal breach of trust in respect thereof. 5. Mr. Sankat Haran Singh on behalf of the petitioner placed reliance upon the case of Sheonarayaft Jaiswal V/s. State of Bihar, AIR 1953 Pat 225 to show that there was no entrustment of the cement with the petitioner. According to learned counsel for the petitioner, the act of the petitioner in selling the cement amounted merely to a breach of contract and not criminal breach of trust. According to learned counsel for the petitioner, the act of the petitioner in selling the cement amounted merely to a breach of contract and not criminal breach of trust. In my view, Sheonarayan Jaiswals case (supra) cannot be of any assistance to the petitioner The facts of that case were entirely different. Learned counsel for the petitioner placed reliance upon paras 12 and 13 of that case. In my view, however, that case stands on a different footing. In that case the Excise Department was empowered only to regulate the sale and distribution of molasses produced by sugar factories. The distinctive feature between Sheonarayan Jaiswals case (supra) and the present one is that in Sheonarayan Jaiswals case (supra) the price was obviously paid by the distilleries, the permit holders, before lifting the molasses, The following sentences of Das, J, as he then was, are illuminating and should be quoted with profit:- (at p. 229 of AIR). "I do not, however, find any term in the license which would show that the molasses which the distilleries obtained as raw materials were to be treated as other than. the property of the distilleries which had paid the price therefor. As a matter of fact the terms of these licenses do not refer to molasses at all; nor do they refer to any obligation attaching to whatever raw material the licensee may use for the manufacture of spirit. ...... As far as I can make but, the correct position is that the distillers, who worked under licenses granted to them, required molasses as raw material: for movement of molasses they obtained permits from the Excise Commissioner; they paid for the molasses as also for the transport of the molasses to the distilleries; they manufactured spirit out of the molasses and sold the spirit to the warehouses or licensed vendors under the terms of the licenses granted to them. In the circumstances stated above, I do not see how can it be said that the property in molasses or any dominion over them was entrusted to the distillers." Das, J. as he then was, rightly observed if I may say with respect as follows (at pp. 229 and 230 of AIR) :- " I fail to see how it can be alleged in this case that the molasses which the distilleries had purchased were the property of any person other than the distillers themselves. 229 and 230 of AIR) :- " I fail to see how it can be alleged in this case that the molasses which the distilleries had purchased were the property of any person other than the distillers themselves. I doubt if the Commissioner of Excise had any beneficial interest in the molasses though he may have such interest in the spirit if and when such spirit is manufactured from the molasses. I have already referred to the terms of the licenses, which say nothing about raw materials for the manufacture of spirit. The permits, it may be stated, do not attach any obligation to the ownership of molasses; they relate merely to movement or transport of molasses from one place to another, as contemplated by S. 4 of Bihar Molasses (Control) Act." In the present case, the facts are entirely different. The cement given to the petitioner did not belong to him, but it was the property of the Minor Irrigation Department which was clearly mentioned in the agreement (Ext. 14). 6. Learned counsel for the petitioner also placed reliance upon the case of Dani Singh V/s. State, 1963 1 CrLJ 217 . In that case the petitioner was a holder of a fair-price shop. He was supplied 84 maunds of wheat on behalf of the Government. The petitioner paid the price of the wheat supplied to him as well as the Sales-tax payable thereon. On those facts; it was contended before Sahai, J. that the petitioner had paid the price as well as the Sales-tax and hence the property in the entire 84 maunds of wheat passed to the petitioner. The submission urged on behalf of the petitioner was upheld by Sahai, J. The decision in Dani Singhs case (supra) is unexceptionable. But the facts an the instant case are entirely different. The property in the cement had never passed to the petitioner, and, therefore, it could not be described as a case of sale in his favour. Upon an interpretation of Cl. 9 of the agreement the beneficial interest in the property at all times remained in the State Government and not in the petitioner. In that view of the matter, the two Patna cases cited by learned counsel for the petitioner are of no assistance to him. 7. Upon an interpretation of Cl. 9 of the agreement the beneficial interest in the property at all times remained in the State Government and not in the petitioner. In that view of the matter, the two Patna cases cited by learned counsel for the petitioner are of no assistance to him. 7. Learned counsel for the petitioner also placed reliance upon the case of Mafizul Islam Mian V/s. K. P. Sinha, 1968 0 CrLJ 1120 insupport of his contention that the beneficial interest in the cement in question vested in the petitioner and, therefore, there was no entrustment thereof to the petitioner. I regret, the Tripura case also was decided upon its own set of facts which were entirely different from the present case. That case proceeded upon an interpretation of R. 245 of the Central Public Works Accounts Code. In terms of R. 245 the materials issued to contractors were the property of the contractors and that the surplus materials could be taken over by the Government, if required for use on other works in progress only by special arrangements and at the prevailing market rates. That being the content of R. 245, the Judicial Commissioner of Tripura held that the petitioner was not guilty of criminal breach, of trust. The position in the case under consideration is entirely different. Here the beneficial interest in the property at all times belonged to the State Government. In my view, therefore, the Tripura case also is of no assistance to the petitioner. 8. Learned counsel for the petitioner also placed reliance upon the case of State of Gujarat V/s. Jaswantlal Nathalal, 1968 0 CrLJ 803 where in circumstances similar to the present case it was held that the prosecution. had failed to establish entrustment of cement to the contractor. In my view, the above case was decided upon the assumption that the delivery of cement to the contractor was in terms of a sale. The distinguishing feature is to be discerned in para 6 of the decision where Hegde, J. observed as follows:- "We were not made aware of the conditions under which the Government gave the construction work to BSS. The written agreement between the Government and the BSS, if there be any, has not been produced in this case. There is also no oral evidence in regard to the particulars of the agreement between the Government and the BSS. The written agreement between the Government and the BSS, if there be any, has not been produced in this case. There is also no oral evidence in regard to the particulars of the agreement between the Government and the BSS. Therefore, we have to proceed on the basis that the contract given to the BSS is one of those usual contracts under which it was for the contractor to secure the necessary materials. Evidently because cement was a controlled commodity in 1963, BSS had to apply for its allotment. In the absence of any evidence to the contrary we have to proceed on the basis that BSS either paid for the cement in question or its price was adjusted towards the money due to it." It will be appreciated that the crux of the matter lies in the terms of the contract. The terms of the agreement in the present case clearly mentioned that the Irrigation Department retained proprietary right over the cement sold by the petitioner. In the case decided by the Supreme Court, the agreement between the Government and the Bharat Sewak Samaj not having been produced, the terms under which the latter was given the construction work by Government it was not possible to come to any conelusion whether the cement in question had been sold to the Bharat Sewak Samaj or it had been entrusted. No oral evidence even was led in regard to the particulars of the agreement between Government and the Bharat Sewak Samaj. The Court, therefore assumed that the contract between Government and the Bharat Sewak Samaj was "one of those usual contracts under which it was for the contractor to secure the necessary materials." In the instant case, however, there is evidence, oral and documentary to indicate that Government retained proprietary interest in the cement. That in my view is the distinctive feature between the Supreme Court case and the instant case. I am, therefore, unable to hold upon the authority of Jaswantlal Nathalals case (supra) that the delivery of cement was one of sale on credit and not of entrustment. In the present case, fiduciary relationship had come into existence between the petitioner and the Minor Irrigation Department. In my view, therefore, the Supreme Court case also is of no assistance to the petitioner. In the present case, fiduciary relationship had come into existence between the petitioner and the Minor Irrigation Department. In my view, therefore, the Supreme Court case also is of no assistance to the petitioner. 9 The offence of criminal breach of trust is defined in S. 405 of the Indian Penal Code. It lays down that if a person is entrusted with property in any manner, or with any dominion over property, and if the person entrusted 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 a property should be discharged, or of any legal contract, express or implied, the person so entrusted with property commits criminal breach of trust. It is well settled that the entrustment contemplated by S. 405 does not imply a trust in the sense of any law relating to the trusts, but the trust may be created in any manner. Upon the facts and circumstances of this case, there can be no doubt that the petitioner was entrusted with 200 bags of cement. Out of that stock the petitioner sold 14 bags and thus made a wrongful gain to himself and caused wrongful loss to the Minor Irrigation Department. The sale proceeds of that cement he kept to himself. In that view of the matter, the conduct of the petitioner must be held to be a dishonest one. He had been charged to use the cement only for construction of the Bandh, but he sold part of it. Thus he dishonestly disposed of the property entrusted to him in violation of a legal contract which he had made touching the discharge of the trust. It is, therefore, manifest that the petitioner did commit criminal breach of trust of which he has been found guilty by both the Courts below. The submission urged on behalf of the petitioner in this regard must, therefore, be rejected as lacking in substance. 10. Learned counsel for the petitioner also contended that the cement alleged to have been sold by the petitioner to Rajendra Prasad (P. W. 2) not, having been produced in Court, the conviction was ill-founded. The submission urged on behalf of the petitioner in this regard must, therefore, be rejected as lacking in substance. 10. Learned counsel for the petitioner also contended that the cement alleged to have been sold by the petitioner to Rajendra Prasad (P. W. 2) not, having been produced in Court, the conviction was ill-founded. I do not see why it was necessary to produce the cement in Court Production of impugned articles and exhibiting them is essential only where the ideality of the articles is in controversy between the parties. Since no question of identity arose at the trial, the conviction of the petitioner cannot be held to be vitiated for non-production of the cement. 11. Lastly, it was contended that the lower appellate Court had not considered the defence of the petitioner and, therefore, the conviction of the petitioner was vitiated. As I have stated earlier, the defence of the petitioner was that he had been falsely implicated. The defence witnesses, were examined to prove that the petitioner had been making grievance against P. W. 1, who happened to be the Sub-Divisional Officer, Minor Irrigation. Tiff between Engineers and conractors is not unknown. For ought one knows the petitioner may be finding the Sub-Divisional Officer a hindrance in his nefarious acts and, therefore, he may be shooting petitions against the first informant. In that view of the matter, the non-consideration of the defence witnesses, who only testified to grievances having been made by the petitioner against the first informant was of no consequence. In the written statement it was contended on behalf of the accused that Mr. A. Khair, Executive Engineer and Mr. Anami Saran his predecessor-in-office were hostile to the petitioner and, therefore, the petitioner had been falsely Implicated. In the present case, there is nothing in evidence to substantiate the stand taken by the accused in the written statement. There is not a whisper in the entire evidence to the effect that P.W. 1 Ramjatan Mehato had falsley implicated the petitioner on the inspiration of Mr. A. Khair or Mr. Anami Saran, Mr. Anami Saran, Executive Engineer prior to Mr. A. Khair was under suspension and undergoing trial in a case for accepting illegal gratification and, therefore, it could not be contended even for a moment that the prosecution of the petitioner was a motivated one upon the inspiration of Mr. A. Khair or Mr. Anami Saran, Mr. Anami Saran, Executive Engineer prior to Mr. A. Khair was under suspension and undergoing trial in a case for accepting illegal gratification and, therefore, it could not be contended even for a moment that the prosecution of the petitioner was a motivated one upon the inspiration of Mr. Anami Saran, I have looked into the evidence adduced on behalf of the accused myself and am of the view that the failure to consider them by the Court below has not occasioned any failure of justice to the petitioner. Thus this submission also on behalf of the petitioner is without substance and must be rejected. 12. For the reasons, stated above, I find no merit in any of the submissions urged on behalf of the petitioner. No other point having been raised, I do not find any merit in the application which is accordingly dismissed without any modification.