Judgment : This revision is directed against the conviction and sentence imposed by the learned I Additional Sessions Judge, Madurai, in C.A.No. 7 of 1992 confirming the conviction but altering the nature of the offence to Sec. 403, Indian Penal Code as against the findings of the learned Special Judicial Magistrate No. VII, Madurai, in C.C. No. 13 of 1991. 2. The admitted facts are that P.W.1, a resident of Madurai, had been to Madras to her daughter’s house and was returning by Muthunagar Express, which started on 20.6.1990 evening. In reserved compartment S-1, she was occupying seat No. 15 and along with her, these revision petitioners and the member of their troupe, who were engaged in music performance for propaganda purposes, also were travelling. The first revision petitioner became friendly with P.W.1 during the journey. The ticket-examiner came to check the tickets and P.W.1 after showing her ticket to the ticket-examiner, kept the ticket within a wallet containing two chambers in which she kept some gold ornaments in one chamber and Rs. 40 and the railway ticket in the other chamber. She kept this wallet within a handbag and left it underneath her seat. On 26. 1990 early morning by 4.30 the train reached Madurai and P.W.1 got down from the train along with her articles and revision petitioners and their party also alighted after her. P.W.1, while reaching the outer gate of the station, opened the handbag to take out the wallet in which her journey ticket was kept, but to her dismay, she found the same missing. She came back to the coach in which she travelled and searched for the wallet but could not find it and none was in the compartment at that time. She came home and as her husband was not in town and returned back only on 26. 1990, she told her husband about the incident and immediately both of them went to Madurai Railway Police Station where she lodged the complaint Ex.P-1. P.W.5, the Inspector of Police, ascertaining from P.W.1 that a music party travelled in the same coach proceeded to Vannivelampatti village on the same night at about 10.30 p.m. along with P.W.3 and another and identifying the music party near the bus stop, enquired these revision petitioners. P.W.5, the Inspector of Police, ascertaining from P.W.1 that a music party travelled in the same coach proceeded to Vannivelampatti village on the same night at about 10.30 p.m. along with P.W.3 and another and identifying the music party near the bus stop, enquired these revision petitioners. The revision petitions admitted that the wallet containing the jewels and cash were with them and they produced the same to P.W.5, the Inspector. They also gave the statements Exs.P-3 and P-4 and the Inspector of Police P.W.5 seized the articles in the presence of P.W.3. .3. The revision petitioners were prosecuted for the offence under Sec. 379, Indian Penal Code and they were found guilty by the learned Magistrate but he released them under Sec. 4(1) of the Probation of Offenders Act. On appeal before the learned Additional Sessions Judge, Madurai, he found that there is no evidence for the theft of the wallet containing the gold ornaments, but he found the revision petitioners guilty of the offence under Sec. 403, Indian Penal Code. Hence, this revision. .4. The learned counsel Mr. Karpagavinayagam submitted that the lower appellate court having found that there is no proof for the theft of jewels by these revision petitioners, has observed that the jewels could have been handed over to the person, whose reserved ticket was found in the wallet itself or they could have handed over these articles either in the railway station to a responsible person or to anyone of the police station and as they did not do it any of these things, he has found them guilty for the offence under Sec. 403, Indian Penal Code, but this view taken by the learned Judge is incorrect because P.W.1 has stated before the Investigating Officer that she was travelling in the ticket of one Sethu and therefore her name would not have been in the reservation chart. He further argues that the accused petitioners in their statements under Sec. 313, Code of Criminal Procedure have specifically mentioned that this wallet was lying in the floor of the compartment, that they handed over this to the ticket checking Officer in the gate but as he was not willing to receive them, they had to keep with them, that as they were having programmes in different places, they proceeded to their place of stay thinking that they could deliver these articles to the concerned person after their return and this explanation ought to have been accepted by the learned Additional Sessions Judge. The learned counsel refers to Explanation 2 to Sec. 403, Indian Penal Code and the illustrations thereunder to support his contention that the mere keeping of the articles that were found abandoned, in the custody of a person without using it or converting it as his property, will not amount to dishonest misappropriation. According to the learned counsel, unless there is evidence for own use by the revision petitioners, the mere possession of these articles which they found abandoned in the railway compartment will not constitute the offence. He also points out the conduct of the revision petitioners being so friendly with P.W.1 during the time of travel and also immediately producing the articles to P.W.5, when he enquired about these articles, as a proof that these petitioners were awaiting to return the articles, and therefore these revision petitioners cannot be convicted for the offence under Sec. 403, Indian Penal Code. It is perfectly true that the mere keeping of the articles which belong to somebody or not taking any steps to hand over the articles by tracing the real owner, by itself, will not constitute an offence under Sec. 403, Indian Penal Code. But the intention of the person, who is retaining the articles which belong to somebody alone, will be the deciding factor as to whether he had misappropriated the article of other man dishonestly or not. This intention can be understood only from the conduct of the person. But the intention of the person, who is retaining the articles which belong to somebody alone, will be the deciding factor as to whether he had misappropriated the article of other man dishonestly or not. This intention can be understood only from the conduct of the person. Suppose, if a person keeps an article which he has found on the highway for years together without even aspiring to hand over it to the persons who are capable of tracing (he true owner, though occasions were available that indicates his character to retain the property for himself and certainly it will amount to dishonest misappropriation, though he might not have actually made use of the articles for his personal purpose. Therefore, the conduct is the material evidence and the testing factor to decide his intention. 5. In this case, it has been stated by these revision petitioners at the time of their statements under Sec. 313, Code of Criminal Procedure that soon after they found this wallet containing the jewels, they enquired some others whether the jewels belonged to them but they did not claim it, that thereafter when they approached the ticket examiner to entrust these articles to him, he was also not prepared to receive it but he wanted their address to be given. In the oral statements made by these accused, they have not stated that they gave their address to that ticket examiner but only in the written submissions, it is stated that they gave their address. It is pertinent to note that for the first time only at the time of Sec. 313 questioning, it has been stated by these revision petitioners that they approached the ticket examiner to hand over these articles to him. Nowhere during the investigation stage, it has come out, that they offered to surrender these articles to the ticket examiner or any other person before they came out of the railway station. The learned Government Advocate (Criminal Side) refers to the confession statements of accused, Exs.P-3 and P-4, in which the present version of the revision petitioners is not found. On the other hand, in Exs.P-3 and P-4, it is stated that only on 26. The learned Government Advocate (Criminal Side) refers to the confession statements of accused, Exs.P-3 and P-4, in which the present version of the revision petitioners is not found. On the other hand, in Exs.P-3 and P-4, it is stated that only on 26. 1990 night after their music performance was over, before these revision petitioners went to bed, the first revision petitioner showed the wallet to the second revision petitioner requesting him to keep it safely without even divulging as to how she got it and told her husband that she would tell about it on the next day morning. Therefore, for the first time, the version of the revision petitioners that they offered to hand over to the ticket-examiner was stated only in the court, there cannot be any truth in this version. .6. Now coming to the conduct of the revision petitioners, they had the opportunities to hand over these articles either to the Station Master in Madurai Railway Station or to the .railway police or in any other police station during their tour for their music performance. As the train reached Madurai in the morning by about 4.30 a.m. when they were coming out from the railway station, they could have gone to the room of the Station Master or any other responsible officer in the station explaining the circumstances under which they came into possession of these articles and requesting the officer to take steps to hand over the same to the person entitled to it. Another important aspect is that the railway coach in which these parties were travelling, was a reserved compartment and therefore the address of the person who reserved the ticket would be available in the station in which the ticket was purchased. P.W.1 has stated that in one of the chambers of the wallet, she kept her ticket also along with cash of Rs. 40 and only when she came to the exit gate in the railway station, and opened her handbag to take out the wallet containing the railway ticket, she found that the wallet was missing. Therefore, the ticket of P.W.1 was within the wallet and these revision petitioners could have atleast handed over the ticket to the Station Master to trace the addressee who reserved the ticket. Therefore, the ticket of P.W.1 was within the wallet and these revision petitioners could have atleast handed over the ticket to the Station Master to trace the addressee who reserved the ticket. Even though in the cross examination P.W.1 would state that the ticket was purchased in the name of one Sethu, the address of that person also could have been easily traced through the ticket number so that the owner of the articles could have been found out through the said Sethu. There would not have been any difficulty in tracing the owner of the articles when the reserved ticket also came to the hands of these revision petitioners. The railway police also was available in the Madurai Junction and these revision petitioners could have approached the railway police or as they were doing the music performance in difference villages, they could have gone to anyone of the police stations near the place of their performance to hand over these articles to the police with a request to trace the owner for the purpose of handing over these items. Therefore, in spite of these opportunities, which they had, they did not show any interest to part with these jewels. Therefore, certainly, this conduct makes it clear that the first revision petitioner intended to retain these articles for her own use. She could not have used these articles during the music performance because she was travelling in and around Madurai and P.W.1 in her evidence has stated that the revision petitioners knew about her whereabouts. .7. Now coming to the conduct of the revision petitioners referred to by the learned counsel Mr. Karpagavinayagam, viz., the friendly behaviour and handing over of the articles immediately on demand to P.W.5, do not exonerate them. When all of them were travelling in the same compartment sitting together naturally they may be expressing friendly gestures atleast for keeping themselves engaged in conversation. Therefore, that may not have any bearing to negative the adverse conduct of the revision petitioners. With regard to the next conduct, no doubt P.W.5 has spoken in his evidence that when he identified the revision petitioners, they gave confession statements Exs.P-3 and P-4 and recovered the articles from them. Therefore, that may not have any bearing to negative the adverse conduct of the revision petitioners. With regard to the next conduct, no doubt P.W.5 has spoken in his evidence that when he identified the revision petitioners, they gave confession statements Exs.P-3 and P-4 and recovered the articles from them. Even if it is taken that they voluntarily handed over these articles to P.W.5, the Inspector of Police, it cannot be taken that as they wanted to hand over these articles to a responsible person and out of their spontaneous wish, they handed over these articles, to P.W.5, because the Police Officer went along with his men and two attestors, P.W.3 and another and all the articles lost by P.W.1 were in the personal custody of the second revision petitioner at that time. Therefore, these revision petitioners might have realized that in case if they deny the possession of the articles, they might be searched and the articles would be recovered from them and before such an event happened, they themselves should hand over to the police Officer. For the reason, these revision petitioners could have handed over these articles to P.W.5. No doubt the benefit of doubt must be given to the accused. But in this case, as mentioned above, in spite of the opportunities for the revision petitioners to inform the station master and police, they failed to do it and when that conduct is taken into consideration, it is clear that the production of these articles before the police officer by them, cannot be voluntary but only out of the fear of search. .8. The learned counsel Mr. Karpagavinayagam referred to a few decisions to support his argument that the mere possession of the lost goods of somebody, will not attract punishment under Sec. 403, Indian Penal Code. The first decision cited by him is Dasan Gangaraju, In re., (1950)1 M.L.J. 792 : A.I.R. 1950 Mad. 778:63 L.W. 593, wherein it is held that where the prosecution did not discharge its onus and the only evidence is production of the stolen articles by the accused with an explanation, adverse presumption cannot be drawn under Sec. 114, Evidence Act to convict him for the offence under Sec. 380, Indian Penal Code. 778:63 L.W. 593, wherein it is held that where the prosecution did not discharge its onus and the only evidence is production of the stolen articles by the accused with an explanation, adverse presumption cannot be drawn under Sec. 114, Evidence Act to convict him for the offence under Sec. 380, Indian Penal Code. But in that case, the articles that were lost in a trunk box were handed over by the accused himself voluntarily before the Investigating Officer even before he enquired. The Investigating Officer in that case did not go in search of the accused or enquired him. Therefore, when he himself came to the Investigating Officer, to hand over the lost articles has explanation for coming into possession of the articles, was accepted. The next decision referred to by him is Maisin Fakir v. State of Assam, (1961)1 Crl.L.J. 624, in which case the accused was alleged to have dishonestly retained possession of a pair of buffaloes. The accused contended that someone had left the buffaloes within his compound and he was not aware of the owner of the buffaloes and therefore he retained them. The Assam High Court held that the accused had no obvious intention of misappropriating the buffaloes as he was not aware of the owners of the buffaloes. There was no clue for him to trace the owner of the buffaloes. Therefore, the mere custody of the buffaloes was not considered as an act of misappropriation. 9. The third decision relied upon by the learned counsel is Mahavir Prasad v. State of Assam, A.I.R. 1961 Ass. 132: (1961)2 Crl.L.J. 457. The accused therein was prosecuted for the offence under Sec. 411, Indian Penal Code, for possession of certain cloth in his godown and the said clothes were said to have been stolen from a lorry, which was in the custody of the railway. He was convicted for the offence under Sec. 403, Indian Penal Code on the ground that he had the dishonest intention in keeping the articles in his godown. The Assam High Court found that there was no proof that the goods in the possession of the accused were stolen properties and for the mere fact that the cloth bales were once in the custody of the railway and subsequently found in the godown of the accused, would not make out an offence under Sec. 403, Indian Penal Code. The Assam High Court found that there was no proof that the goods in the possession of the accused were stolen properties and for the mere fact that the cloth bales were once in the custody of the railway and subsequently found in the godown of the accused, would not make out an offence under Sec. 403, Indian Penal Code. There was no proof in that case that the cloth bales found in the godown of the accused belong to some one much less the railway department. Therefore, that decision also is not applicable for this case. .10. The last decision cited by him is the decision of this Court in In re. Raghava Menon, (1940)2 M.L.J. 748 : A.I.R. 1941 Mad. 250: 52 L.W. 633: 1940 M.W.N. 1110: 192 I.C. 404: 42 Crl.L.J. 296(1), which is a very short judgment referring to the facts namely a clerk in the Office of the Official Receiver received three sums of Rs. 35 during the absence of the Official Receiver and as he did not bring the amount to the account, he was prosecuted for the offence under Sec. 403, Indian Penal Code on the complaint of the Official Receiver. The accused contended that due to oversight on account of heavy work, he did not make entry in the register. It was held that the mere retention of money would not warrant conviction under Sec. 403, Indian Penal Code as there was no evidence for the use of the amount by him. There were possibilities for him to make use of the cash that was collected by him but as he did not use the cash, it was held that there was no dishonest misappropriation. But in this case, as the petitioners were doing music performance around Madurai, the first revision petitioner would have hesitated to use the jewels in that area as it would be identified by the oral owner. Therefore, this decision also is not helping the revision petitioners. 11. But from the confession statements Exs.P-3 and P-4, it appears that the second revision petitioner came to know about the possession of the jewels by the first revision petitioner only on 26. 1990, when the first revision petitioner handed over the wallet containing the jewels to him. Therefore, this decision also is not helping the revision petitioners. 11. But from the confession statements Exs.P-3 and P-4, it appears that the second revision petitioner came to know about the possession of the jewels by the first revision petitioner only on 26. 1990, when the first revision petitioner handed over the wallet containing the jewels to him. As these jewels were seized on the next day, the second revision petitioner had no sufficient time to contact the police or the railway officials to trace the true owner. Therefore, I feel that the second revision petitioner might not have been a party to the action of the first revision petitioner. In the complaint Ex.P-1, itself P.W.1 has stated that she suspected the first revision petitioner and she also has given her identification marks. Anyhow, for the reasons stated above in Exs.P-3 and P-4, the second revision petitioner has to be exonerated from the charge alleged against him. But the conduct of the first revision petitioner clearly establishes the dishonest misappropriation of the jewels of P.W.1, for which she has been rightly found guilty of the offence by the lower court. Both the courts have released the first revision petitioner under Sec.4(1) of the Probation of Offenders Act. Therefore, the findings of the court below, does not require any modification so far as the first revision petitioner is concerned. But the revision of the second petitioner as to be allowed setting aside the order of the courts below. 12. In the result, the conviction of the second revision petitioner is set aside, he is acquitted of the charge and the revision in so far as the second revision petitioner is concerned, is allowed. The revision by the first revision petitioner is dismissed.