JUDGMENT - Puranik S.W. J.- This revision in directed against the order passed by Additional Sessions Judge, Nagpur on 22-1-1980 in Criminal Appeal No. 35/79 convicting the applicant under section 406 Indian Penal Code and sentencing him to pay a fine of Rs. 1000/- 2. Initially the applicant was charge-sheeted for the offices under sections 420 and 406 Indian Penal Code. He was tried before the Judicial Magistrate, First Class, 6th- Court, Nagpur in Criminal Case No. 1735/74 decided on 27-2-1979. The Trial Court found him guilty for both the offences and sentenced him to suffer rigorous imprisonment for period of three months and a fine of Rs. 1000 under section 420 Indian Penal Code and rigorous imprisonment for two months and a fine of Rs. 500/- under section 406 India Penal Code. 3. On appeal by the applicant accused, the Trial Court acquitted the applicant for the offence under section 420 Indian Penal Code but convicted him under sections 406 Indian Penal Code and sentenced him to pay a fine of Rs 1000/-. Against both these concurrent findings of guilt, the applicant accused has preferred this revision. The question is whether the order passed by the Lower ~appellate Court is legal and proper or whether any interference is necessary in this revision. 4. Shri W. G. Somalwar, the learned counsel for the applicant criticized the impugned judgment of the Lower Appellate Court on the ground of non-application of mind and illegality in finding the applicant guilty under section 406 Indian Penal Code. 5. The non-applicant No. 1was represented by Shri M. P. Badar, Asstt. Govt. Pleader. He supported the impugned judgment and conviction of the applicant. Shri Ramchandani, advocate appeared for respondent No.2 and also supported the impugned judgment. To appreciate the controversy and the questions involved it would be necessary to refer to the facts and circumstances brought out on record. 6. One Hussainabai W/0 Abdul Hussain. non-applicant No.2, had lodged a complaint against applicant on the basis of which the accused was charge-sheeted for the offences under sections 420 and 406, Indian Penal Code. Most of the facts giving rise to the complaint were admitted by the accused. The accused applicant was serving in the firm of the complainant's husband Abdul Hussain. He was also on visiting terms with the complainant. Most of the facts giving rise to the complaint were admitted by the accused. The accused applicant was serving in the firm of the complainant's husband Abdul Hussain. He was also on visiting terms with the complainant. The accused approached the complainant and asked her for investing some amounts in the business of hire purchase of trucks. He represented to her that financing a hire purchaser was profitable business. The complainant accordingly paid Rs. 10,000 to the accused through cheques. The said cheques were duly encashed by the accused and be realised the amounts. Out of the said amount of Rs. 10,000 to the accused refunded Rs. 1,000, but has not repaid Rs. 9,000 to the plainant. According to the allegation in the complaint, the accused visited the complainant on 25-7-1972 and made a false misrepresentation “her and her husband and it is on these representations that she invested Rs. 10,000/- in the business of the accused. The complainant alleged that but for such inducement by the accused she would not have parted with the huge amount of Rs. 10,000 in favour of the accused. According to her further allegations in the complaint, when she started demanding the amount of Rs. 10,000 from the accused, the -'1ccuseddid issue a cheque of Rs. 10,000 in her favo4:f, but the same was dishonoured. She, therefore, felt cheated and she also felt that the accused has committed criminal misappropriation in respect of the sum of Rs. 10,000. She, therefore, lodged the complaint under sections 42\) and 406, Indian Penal Code as already stated above. 7. From the perusal of the record, it appears that the complainant did not advance the sum of Rs. 10,000 to accused in one Jump sum. She had in fact issued two cheques of Rs. 5,000 each, one issued on }-8-}972 while the other on 16-10-1972. Thus, the amount was invested in two instalments with a time gap of about 2! months. From the time of the first advance till the time the second amount of Rs 5,000 was advanced, the complainant had no opportunity to know the nature of business being carried out by the accused and the returns that were expected to be received from the said business. It is after this gap of 2~ months that she just issued another cheque of Rs. 5,000 to the accused. It is after this gap of 2~ months that she just issued another cheque of Rs. 5,000 to the accused. The very ingredients of the offence of cheating are not established in the present case and the Lower Appellate Court rightly acquitted the accused for the said offence. The question that remains now is whether on the same set of facts and evidence, the offence of criminal misappropriation of the said amount has been brought home to the accused. In my opinion, even that should not be the case and the conviction of the applicant by the lower appellate Court under section 406, Indian Penal Code is also to be quashed and set aside. 8. In paragraph 7 extending over six pages, the learned Lower Appellate Court has given its reasons why the offence under section 406 is established against the accused. The learned Sessions Judge in para. 7 has categorically held that the complainant on the one side and the accused on the other wanted investment of money in some business. In this context after appreciating the fact that in fact an amount of Rs. 10,000 was invested by the complainant with the accused, Ex. 36 dated 25-6-1973 sent by the applicant accused to the complainant is very pertinent. It states as follows : “I have made so many promises up till now from time to time for repayment of amount of Rs. 10,000 taken from you on 16-10-1972. I am very sorry that I could not keep up of my previous promises and could not be able to repay back the amount on demand and for this act of mine I greatly apologise you both. I assure that the amount is invested in financing business.” This act on the part of the accused in writing clearly goes to show that he had no criminal intention as far as the amount of Rs. 10,000 invested by the complainant is concerned. Just as on this very set of facts the lower appellate Court has come to the conclusion that the ingredients of cheating are not established against the accused, so also on the very same set of facts no ingredients of offence under section 406 of Criminal Procedure Code can be brought home to the accused. Just as on this very set of facts the lower appellate Court has come to the conclusion that the ingredients of cheating are not established against the accused, so also on the very same set of facts no ingredients of offence under section 406 of Criminal Procedure Code can be brought home to the accused. It is more than obvious that whatever dispute there was between the complainant and the accused, it was purely of a civil nature and the complainant has only a civil remedy for recovery of the amounts so advanced to the accused. When the accused applicant was acquitted for the offence under section 420 he was also entitled for acquittal for the offence under section 406, Indian Penal Code. Any amount invested by the complainant with the accused for purposes of business or for earning profit cannot be said to be an amount exclusively entrusted to the accused applicant, but on the other hand, it was in vested for purposes of appropriating” the same towards the business of the applicant and the respondent No.2. The beneficial ownership and interest in the money had been transferred to the aid business. Failure to repay the said amount t2 the applicant cannot be construed as criminal misappropriation, but on the other hand it clearly indicates that after repaying the sum of Rs. 1,000 the accused was unable repay the balance amount. It could be because of the failure of business or non-earning of profit. There cannot be any impuration of criminal intention on the part of the accused. In the light of the discussion above, I feel that the lower appellate Court grossly erred in convicting the accused for the offence of criminal misappropriation. The reasoning given by the learned Sessions Judge';1 is not legal, nor is it proper. It has resulted in miscarriage of justice. It is a fit case for interference in this revision. Hence the following order. 9. Criminal Revision Application No. 162/80 is allowed. The order of conviction of the applicant under section 406, Indian Penal Code passed by the lower appellate Court is quashed and set aside. The sentence of fine is also quashed and set aside. Fine if paid be refunded to the applicant. Revision application allowed. ----