ORDER: This revision is listed before this Court as a result of the judgment dated 17.1.1991 rendered by the Hon’ble Supreme Court of India in Criminal Appeal No.40 of 1991. The revision petitioners (out of which the second revision petitioner is stated to have died pending revision) were arrayed as the accused in C.C.No.1349 of 1980 on the file of the Sub Divisional Judicial Magistrate, Ulundurpet. That was a private complaint taken on file and the second respondent in this revision was the complainant in that Calendar Case. That private complaint was taken on file for an offence punishable under Sec.406 of the Indian Penal Code and after a full-fledged trial, it ended in a conviction against each of the accused, they being sentenced to one year rigorous imprisonment. The convicted accused appealed in C.A.No.36 of 1982 and the learned Additional Sessions Judge, South Arcot Division, Cuddalore, by judgment dated 3.2.1984, confirmed the judgment of the learned trial Magistrate. The convicted accused took up the matter further before this Court in Criminal Revision Case No.71 of 1984. It may be noticed here that even though the conviction of the trial court was on private complaint, yet in view of the fact that the accused had suffered a conviction, the State was defending the cause of the complainant before the appellate court as well as before this Court in the revision. Hon’ble Mr.Justice Dr.David Annoussamy, as His Lordship then was, by judgment dated 26.9.1986 disposed of that revision. The disposal of that revision is seen to be not on merits but on the basis of a joint memo filed by the parties before him in that revision. It may be noticed that while that revision was disposed of, the complainant in the private complaint was not a party on record to the revision but, however, this Court is informed that the complainant in the private, complaint also signed in the joint memo filed before the learned Judge at the time which enabled the learned Judge to dispose of the revision on the basis of that joint memo. The complainant in the private complaint, who was examined as P.W.1 in that calendar case, took up for challenge the order of this Court in the revision before the Hon’ble Supreme Court of India. The complainant in the private complaint, who was examined as P.W.1 in that calendar case, took up for challenge the order of this Court in the revision before the Hon’ble Supreme Court of India. Before the Hon’ble Supreme Court of India, P.W.1 in the calendar case disowned the joint memo stating that he was not a party to the joint memo and that he had not signed in the joint memo. It was also his specific case before the Hon’ble Supreme Court of India that he was not present in the court on the date of disposal of the revision petition. It is seen that affidavits were filed before the Hon’ble Supreme Court of India. The Hon’ble Supreme Court of India, taking note of the events that were brought to their Lordships notice, disposed of that appeal in the following lines: “In view of this state of affairs, we have no alternative but to set aside the order of the High Court, remit the matter to the High Court with a direction that the High Court will examine the rival contention in this behalf, record a specific finding whether or not the appellant was a party to this arrangement incorporated in the joint memo and then proceed to dispose of the revision application in accordance with law. The parties are also directed to file copies of the affidavits tendered in this Court before the High Court for the perusal by the learned Judge.” 2. Thus, the remitted revision is before this Court. A memo is filed by Mr.T.K.Sampath, learned counsel appearing for the respondent No.2, stating that on the orders of this Hon’ble Court, the records were directed to be kept in a sealed cover the Registry was a ways producing the same before this Court. It appears from the records available in the court as on date that Hon’ble Mr.Justice Janarthanam, as His Lordship then was, before whom this revision was listed for disposal, passed an order on 22.8.1991 directing the Registry to keep the records in a sealed cover under the custody of the Additional Registrar of this Court and that the sealed cover should be brought before this Court on the date of hearing. The Registry now informs this Court that despite their best efforts, they are unable to locate the records immediately and there is some difficulty in tracing the records. The Registry now informs this Court that despite their best efforts, they are unable to locate the records immediately and there is some difficulty in tracing the records. The learned counsel for the second respondent who had been subsequently impleaded in this revision after the case was disposed of by the Hon’ble Supreme Court of India, had already filed a typed set of papers containing the Oral evidence of P.Ws.1 to 7. Mr.K.V.Sridharan, learned counsel appearing for the revision petitioners, had also produced before this Court the certified copies of Exs.P-1 to P-6. In view of the materials noticed above viz., a typed set of papers containing the oral evidence of P.Ws.1 to 7 filed before this Court by the learned counsel for the second respondent and the production of certified copies of Exs.P-1 to P-6 by the learned counsel for the revision petitioners. I am of the opinion that the disposal of this revision need not wait till the records are actually traced and produced before this Court inasmuch as this revision is of the year 1984. This being a revision, I am of the considered opinion that the revision could be disposed of, on the basis of the materials referred to above in the context of the findings rendered by the courts below in the judgments under challenge. In this judgment hereafterwards the contesting parties to the revision would be referred to as the complainant and the accused. I am hereunder stating the minimum facts which enable this Court to understand the real problem that arises in this criminal case and dispose it of. 3. The complainant belongs to a village called Kazhudur. The witnesses also belong to that Village. The accused belong to a village called Ariyanachi. The subject matter of the offence of criminal breach of trust is shown to be 11 items of jewellery. Ex.P-1 is a document which establishes the entrustment of these 11 jewelleries with the accused. The case of the prosecution is under acknowledge contained in Ex.P-1 both the accused have taken the jewels mentioned therein from P.W.4. Though the accused had flatly denied the receipt of jewels under Ex.P-1 the courts below have concurrently found that Ex.P-1 contains the acknowledgment of the accused and it evidences them having taken 11 items of jewellery. The case of the prosecution is under acknowledge contained in Ex.P-1 both the accused have taken the jewels mentioned therein from P.W.4. Though the accused had flatly denied the receipt of jewels under Ex.P-1 the courts below have concurrently found that Ex.P-1 contains the acknowledgment of the accused and it evidences them having taken 11 items of jewellery. This conclusion on Ex.P-1 is on appreciation of the evidence and both the courts have accepted Ex.P-1 as true and genuine. Under these circumstances, exercising revisional Jurisdiction, I am unable to disturb that finding of fact. Therefore, I am in entire agreement with the courts below that Ex.P-1 is true and genuine. 4. There are three temples called Mariamman Temple, Selliamman temple and Draupathiaman temple. It appears that Selliamman temple is situated in a place called Thondamkurichi while the other two temples are situated at Kazhudur Village. The case of the prosecution is that all the three temples are under the control of the villagers of Kazhudur. It is also on record that the deity of Selliamman temple namely Selliamman is in the custody of the villagers of Ariyanachi village and that during the festival time, Selliamman deity will be taken from the custody of the villagers of Ariyanachi village to the Selliamman temple situated at Thondamkurichi. Again these are facts found by the courts below. The complainant in the private complaint originally lodged an information with the police alleging that the accused, who had taken the jewellery mentioned in Ex.P-1 with an assurance to return the same after the festival is over, had not returned it and therefore an offence of criminal breach of trust is disclosed. There is no dispute that the police after conducting investigation, referred that complaint as a mistake of fact. It may also be noticed that the private complaint lodged by P.W.1 before the court was also forwarded to the police under Sec.156(3) of the Code of Criminal Procedure for a report and that report also went against the complainant. Ultimately, as already stated the private complaint was taken on file and the offence under Sec.406, I.P.C., was taken cognizance of. In support of the prosecution, the complainant examined P.Ws.1 to 7 out of whom, P.W.1 is the complainant himself P.W.3 is the Tahsildar and P.W.7 is the Sub Inspector of Police. Ultimately, as already stated the private complaint was taken on file and the offence under Sec.406, I.P.C., was taken cognizance of. In support of the prosecution, the complainant examined P.Ws.1 to 7 out of whom, P.W.1 is the complainant himself P.W.3 is the Tahsildar and P.W.7 is the Sub Inspector of Police. As already stated, the sum and substance of the case of prosecution is that the accused, who had taken jewels mentioned in Ex.P-1 had not returned them. Therefore, the question is, whether on the facts established, the conviction under Sec.406 of the Indian Penal Code could be sustained or not? 5. With this view in my mind, I perused the judgments under challenge as well as the materials placed before this Court in the form of typed set by the learned counsel for the second respondent and in the form of certified copies of exhibits produced by the learned counsel for the revision petitioners. The certified copies of exhibits produced by the learned counsel for the revision petitioners viz., Exs.P-1 to P-6 shall form part of the records of this Court. It may be noticed here that consequent to the accused not returning the jewels as claimed by the prosecution, the two villagers namely villagers of Kazhudur and Ariyanachi were involved in a rioting case. That incident on a police chargesheet was taken on file as C.C.No.331 of 1980. That case ended in an acquittal. P.W.1 in the present complaint had been examined as P.W.9 in that calendar case. The certified copy of his evidence in the earlier calendar case had been marked in the present case as Ex.D-1. The learned appellate Judge had referred to Ex.D-1 and coincised in his judgment what it contains. That case ended in an acquittal. P.W.1 in the present complaint had been examined as P.W.9 in that calendar case. The certified copy of his evidence in the earlier calendar case had been marked in the present case as Ex.D-1. The learned appellate Judge had referred to Ex.D-1 and coincised in his judgment what it contains. The relevant portion of the evidence of P.W.9 in the earlier calendar case and marked as Ex.D-1 in this case is as follows: “I have deposed in C.C.No.331 of 1980 that Selliamman temple belongs in common to the villages of Ariyanachi, Kazhudur and Thondamkurichi the deity of Selliamman will be in the village of Ariyanachi; Selliamman temple is situated in Kazhudur; however Selliamman deity will always be from time immemorial only in the village of Ariyanachi.” The learned appellate Judge, after adverting to the above admitted evidence of the complainant in the present calendar case as P.W.9 in the earlier calendar case, went on to find as follows: “All the three temples referred to earlier are not under the purview of the Tamil Nadu Hindu Religious and Charitable Endowments Act; therefore it is not clear as to in which of the temple records, the jewels are entered for the purpose of accounting and this absence of material makes it difficult to conclude one way or the other. Therefore the finding rendered by the appellate Judge on the basis of Ex.D-1 is that it is not clearly established in which of the three temples viz., Draupathiaman temple, Mariamman temple or Selliamman temple, the jewels must be kept. 6. I perused Ex.P-1. The allegation in the complaint as well as in the oral evidence of P.W. 1 is that when the jewels, as noticed in Ex.P-1, were entrusted to A-1 and A-2, they promised to return the jewels. However, there is no such assurance in Ex.P-1 to return the jewels either to P.W.1 or P.W.4. P.W.1 in his oral evidence, would depose that after the jewels were entrusted, A-1 promised to return the same after the festival is over and that P.W.2 and P.W.4 know about the jewels being given to A-1. P.W.1 does not even say that P.W.2 was present when the jewels were entrusted to the accused. P.W.1 in his oral evidence, would depose that after the jewels were entrusted, A-1 promised to return the same after the festival is over and that P.W.2 and P.W.4 know about the jewels being given to A-1. P.W.1 does not even say that P.W.2 was present when the jewels were entrusted to the accused. Admittedly, jewels were not in the custody of P.W.1 but they were in the custody of P.W.4, I perused the evidence of P.W.4 Nowhere, in his evidence, he deposed that when the jewels were entrusted to the accused, the accused were made to understand that they must return the jewels after the festival is over and consequently, the accused also promised to return the jewels to either P.W. 1 or P.W.4 after the festival is over. P.W.2, in his oral evidence would state that he is not personally aware about the accused taking the jewels from the complainant. It is no doubt tree that P.W.6, in his evidence, would state that the accused, while they were given the jewels, promised to return the same to either P.W.1 or P.W.4 after the festival is over. However, neither P.W.1 nor P.W.4 speak about the presence of P.W.6 at the time when the jewels were handed over by the prosecution party to the accused. Therefore, the court is left with only the evidence of P.W.1, P.W.4 and Ex.P-1 to find out whether there was any promise on the part of the accused to return the jewels to the prosecution party after the festival is over. In view of P.W.4 being silent about the accused promising to return the jewels after the festival is over, the court is left with the only evidence of P.W.1 and Ex.P-1. Ex.P-1 does not contain any assurance for return of the jewels except it containing an acknowledgment by the accused for having received the jewels. Therefore, there is only the oral evidence of P.W.1 that the accused promised to return the jewels. 7. Mr.T.K.Sampath, learned counsel appearing for the second respondent, argued that to make out an offence under Sec.405 of the Indian Penal Code, the prosecution party must establish the entrustment followed by the accused not returning the property to the prosecution party. Therefore, there is only the oral evidence of P.W.1 that the accused promised to return the jewels. 7. Mr.T.K.Sampath, learned counsel appearing for the second respondent, argued that to make out an offence under Sec.405 of the Indian Penal Code, the prosecution party must establish the entrustment followed by the accused not returning the property to the prosecution party. There is no need, according to the learned counsel for the second respondent, to show anything over and above the above facts and establish that the accused promised to return the articles. Normally speaking, entrustment followed by the articles entrusted not being returned would be sufficient. But, again, it depends upon facts of each case. On entrustment being established, whether there should be a premise to return the articles or not would again depend upon facts of each case. In this case, the appellate Judge had categorically found that from Ex.D-1, it is seen that the complainant in the private complaint, namely P.W.1, had admitted that the jewels in question belong to the three temples namely Mariamman temple, Selliamman temple and Draupathiamman temple. In view of this categorical admission of P.W.1 in the earlier case, as extracted above, relating to the very same property it is necessary for the prosecution to establish that the accused while taking the jewels under acknowledgment contained in Ex.P-1 promised to return the same to the prosecution party. Criminal breach of trust is defined under Sec.405 of the Indian Penal Code. A reading of Sec.405 of the Indian Penal Code shows that the prosecution party should not only establish the entrustment but also the dishonest misappropriation or conversion of the property entrusted to the own use of the party to whom the entrustment was made. In other words, dishonest misappropriation or conversion to one’s own use or dishonestly using or disposing 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, is an essential requirement. In this case, the prosecution party relies upon a contract in and by which the accused promised to return the jewels. The written contract is Ex.P-1 and it does not contain a promise to return. P.W.1’s evidence that the accused promised to return the jewels is not supported by the evidence of P.W.4. In this case, the prosecution party relies upon a contract in and by which the accused promised to return the jewels. The written contract is Ex.P-1 and it does not contain a promise to return. P.W.1’s evidence that the accused promised to return the jewels is not supported by the evidence of P.W.4. Though P.W.6 lent support to the oral evidence of P.W.1 about the promise to return, yet in view of the fact that neither P.W.1 nor P.W.4 speaks about the presence of P.W.6 at the time when the entrustment was made, his evidence is not worth acceptance. On the materials noticed namely that there is an admission on the part of P.W. 1 in the earlier calendar case that the jewels belong to all the three temples, it is all the more necessary that the prosecution must establish that the accused promised to return the jewels. 8. P.W.3, the Tahsildar, in his evidence, deposed in the following lines: “that consequent to the rioting that took place in the village on account of this entrustment and failure to return, he was asked to proceed to the village by his superiors; he had come to know about the rioting resulting on account of the jewels having been entrusted and not returned; the villagers of Ariyanachi claimed the jewels as theirs; the villagers of Kazhudur stated that the villagers of Ariyanachi have taken the jewels and they have not returned them; Since the jewels were found to belong in common, he advised both the villagers that some arrangement should be made so that the jewels could be used by both the villagers; however, the villagers did not agree for any such settlement.” This witness again says that there appears to be a serious dispute between the prosecution group and the accused group belonging to two villages as to who is in possession of the jewels in question. The evidence of P.W.7, the S.I. of Police, would also show that some attempts were made to sort out the problem amicably and yet it failed. It may also be noticed here that P.W.1 in this case already filed a suit in O.S.No.398 of 1984 on the file of District Munsif’s Court, Vridhachalam against the accused herein seeking a decree for return of jewels which is the subject matter of the present complaint as well. It may also be noticed here that P.W.1 in this case already filed a suit in O.S.No.398 of 1984 on the file of District Munsif’s Court, Vridhachalam against the accused herein seeking a decree for return of jewels which is the subject matter of the present complaint as well. He had made an alternative prayer for a sum of Rs.10,000 belong the value of the jewels. These are all facts, which indicate that there is a dispute of a clear civil nature between the parties. 9. Mr.T.K.Sampath brought to my notice two judgments reported in Shivnarayan v. State of Maharashtra, 1980 S.C.C. (Crl.) 493 and Sailendranath v. Aswini, (1988)1 Crl.L.J. 343 to contend that this Court while exercising revisional powers, should be very slow to disturb the finding of fact rendered concurrently by the courts below. I am fully aware of the limitation of this Court. If the finding of the guilt concurrently arrived at by the courts below is supported by evidence, then this Court shall not definitely interfere and disturb that finding of guilt. But, in this case, I have already found that on the finding of the appellate authority itself which is extracted earlier) in the context of Ex.D-1 there is definitely a serious dispute of civil nature between the parties. On the facts found by the courts below, the finding of guilt for the offence punishable under Sec.406 of the Indian Penal Code cannot definitely be the conclusion. Regarding the revisional power of this Court, starting from the judgment reported in Esakki Thevar v. State, 1959 M.W.N. (Crl.) 136 and the one reported in R.Thangavel v. State, (1999)1 L.W. (Crl.) 63, this Court has been consistently holding that if justice demands this Court will not hesitate to interfere while exercising powers of revision. Regarding the revisional power of this Court, starting from the judgment reported in Esakki Thevar v. State, 1959 M.W.N. (Crl.) 136 and the one reported in R.Thangavel v. State, (1999)1 L.W. (Crl.) 63, this Court has been consistently holding that if justice demands this Court will not hesitate to interfere while exercising powers of revision. Though the judgments challenged in the revision may be concurrent in nature, in 1959 M.W.N. (Crl.) 136, it was held by this Court as follows: “The High Court could and does interfere in criminal revision even upon findings of fact and even though they may be concurrent findings of two Courts below, whether the conscience of the court is satisfied, that in the broad interest of justice, the conviction is not sustainable.” Mr.K.Sridharan learned counsel appearing for the revision petitioners, brought to my notice the judgment reported in Parveen Kumar and others v. State and another, 1998 Crl.L.J. 1693 to contend that mere refusal to return the property entrusted would not constitute an offence of criminal breach of trust. 10. As already stated, the definition of the offence for criminal breach of trust itself includes not only the entrustment but also the dishonest conversion to one’s own use or misappropriation or using the property in violation of prescription of law or in violation of terms of contract. Therefore, both entrustment and dishonest conversion must be established to made out an offence under Sec.405 of the I.P.C. In this case, as already noticed, though entrustment had been established, from the mere fact that the accused failed to return the jewels would not by itself, in the context of Ex.D-1 wherein P.W.1 had admitted that the jewels belong to all the three temples, constitute an offence under Sec.405 of the I.P.C. There is a clear cut dispute of a civil nature between the prosecution witness on the one hand and the accused on the other hand. In the face of Ex.D-1 the said dispute appears to be prima facie fairly well founded. The nature of the dispute is as to who should have custody of the jewels covered under Ex.P-1 each of the contesting parties asserting the said right in themselves. I have already referred to P.W.1 filing a civil suit against the accused to get back the jewels or the money value of the said jewels. The nature of the dispute is as to who should have custody of the jewels covered under Ex.P-1 each of the contesting parties asserting the said right in themselves. I have already referred to P.W.1 filing a civil suit against the accused to get back the jewels or the money value of the said jewels. All these facts taken together definitely indicate a bona fide dispute of a civil nature between the two groups. When such is the circumstance available on record, it is not possible to hold that the accused is guilty of the offence of criminal breach of trust. The misappropriation or conversion for one’s own use of the property entrusted or using or disposing 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 must be necessarily and mandatorily preceded by a dishonest intention on the part of the person acting as referred to above. A person can be said to have acted dishonestly only when he acts fraudulently or insincerely. There must be an element of lack of honesty; deceitfulness or fraud. The non-return of the jewels in this case is not shown to be in violation of any direction of law prescribing the mode in such trust is to be discharged. The prosecution relies upon a contract, which according to them is reflected in Ex.P-1. I have already noticed that Ex.P-1 does not contain a written contract to return the jewels. The oral evidence of P.W.1 speaks about an oral contact. That is also found against, on the materials placed. On the facts established in this case, there appears to be a bona fide dispute between the contesting prosecution witnesses on the one hand and the accused on the other hand regarding the custody of the jewels. In the face of such a dispute of a civil nature, I am of the considered opinion that the ingredients of the offence of criminal breach of trust would not stand attracted. In other words, though one limb of Sec.405, I.P.C. is established, yet the other limb of the said offence has not been established. In the face of such a dispute of a civil nature, I am of the considered opinion that the ingredients of the offence of criminal breach of trust would not stand attracted. In other words, though one limb of Sec.405, I.P.C. is established, yet the other limb of the said offence has not been established. Accordingly, I am of the opinion that, on the facts established, the offence under Sec.406 of the Indian Penal Code is not definitely made out and therefore, the finding of the courts below that the offence under Sec.406, I.P.C. is made out is not supported by legal evidence. 11. Before parting with the case, I have to add the following: The judgment of the Hon’ble Supreme Court of India, as extracted earlier, contains a direction to this Court to consider the rival contention about the truth or otherwise of the joint memo filed before this Court earlier and record a specific finding whether or not the appellant was a party to this arrangement incorporated in the joint memo. It also contains a direction that this Court shall then proceed to dispose of the revision in accordance with law. The villagers of both the villages in large numbers had appeared before me on more than one occasion. The second respondent was also present in the court and before beginning the hearing of the case, I wanted to satisfy myself as to whether the second respondent had earlier signed in the joint memo. The second respondent categorically stated that he was taken to the office of the then learned counsel for the revision petitioners (the learned counsel was later on elevated as a Judge of this Court and then retired) and there he had signed in a joint memo. However, he would add before this Court that though he had signed the joint memo. under which, according to him, the accused promised to return the jewels to him, yet they have not returned the jewels and they were acting against the terms of joint memo. The joint memo filed at that time should have formed part of the records, which I already stated is not easily traceable. A xerox copy of the joint memo is produced by the learned counsel for the revision petitioners. The said joint memo does not contain any recital in and by which the accused agreed to return the jewels. The joint memo filed at that time should have formed part of the records, which I already stated is not easily traceable. A xerox copy of the joint memo is produced by the learned counsel for the revision petitioners. The said joint memo does not contain any recital in and by which the accused agreed to return the jewels. The xerox copy of the joint memo produced before this Court is directed to form part of the record. In other words, the sum and substance of the stand of respondent No.2 before this Court on the earlier joint memo is as follows: (a) He signed the joint memo in the office of the then counsel for the revision petitioners. (b) He understood the joint memo as enabling him to have the jewels returned to him; In view of the fact that the second respondent had admitted having signed in the joint memo, I am of the respectful opinion that nothing more is necessary to hold, pursuant to the directions of the Hon’ble Supreme Court of India that the second respondent is a party to the joint memo. Taking into account the larger interests of the parties to the joint memo and in view of the admission of the second respondent before me that he had signed in the joint memo, I feel that it is desirable not to take the matter further which may lead to the peaceful atmosphere between the two villagers which stands already considerably strained to a further deterioration. 12. This revision is accordingly, allowed. The conviction rendered against the accused by judgment dated 11.1.1982 in C.C.No.1349 of 1980 on the file of the Sub-Divisional Judicial Magistrate, Ulundurpet, and affirmed by judgment dated 3.2.1984 in C.A.No.36 of 1982 on the file of the Additional Sessions Judge, South Arcot Division, Cuddalore is set aside and the accused are acquitted forth with of the said offence. The bail bonds, if any executed by the accused, shall stand cancelled.