Judgment : 1. The revision petitioner is the accused in C.C.889 of 1996 on the file of the Chief Judicial Magistrate, Ernakulam. The second respondent herein prosecuted the revision petitioner alleging offence under Section 406 of the Indian Penal Code. It is alleged that the revision petitioner and the second respondent had business dealings, out of which, as per two bills, a total sum of Rs.1,52,851.50 was due. The second respondent offered to pay the amount by cheque. Since it is an outstation cheque, the revision petitioner requested for cash payment or by demand draft for which the second respondent was not amenable. Ultimately, they resolved the dispute and the amount was entrusted to the revision petitioner with condition that the revision petitioner shall deposit the same in the account of the second respondent with the local bank at Erode where the revision petitioner was doing business and thereafter to withdraw the same by presenting two cheques. The revision petitioner deposited Rs.80,000/- and one cheque was got encashed. The balance amount was not deposited. According to the respondent, the conduct of the revision petitioner would amount to commission of offence under Section 406 I.P.C. 2. Responding to the process, the revision petitioner entered appearance. After furnishing the copy of the complaint, evidence was recorded under Section 244 Cr.P.C. On the side of the second respondent, three witnesses were examined and Exts.P1 to P8 were marked. After hearing the parties, a charge for offence under Section 406 was framed. When it was read over and explained, the revision petitioner pleaded not guilty. Hence, he was sent for trial. No further oral evidence was recorded. Exts.P9 and P9(a) were marked. P.Ws.1 to 3 were cross-examined. When questioned under Section 313 Cr.P.C., the revision petitioner denied the incriminating evidence. On his side, two documents were marked as Exts.D1 and D2. The learned Magistrate, on appraisal of the evidence, arrived a conclusion of guilt. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for six months and a fine of Rs.12,000/- with a default sentence of simple imprisonment for another six months. The fine amount, if realized, was ordered to be paid to the second respondent as compensation under Section 357 (1) Cr.P.C. 3. Challenging the above conviction and sentence, the revision petitioner preferred Crl.A.455 of 2006 before the Sessions Judge, Ernakulam. The fine amount, if realized, was ordered to be paid to the second respondent as compensation under Section 357 (1) Cr.P.C. 3. Challenging the above conviction and sentence, the revision petitioner preferred Crl.A.455 of 2006 before the Sessions Judge, Ernakulam. Challenging the inadequacy of the sentence, the second respondent preferred Crl.R.P.34 of 2006. By a common judgment/order dated 15.11.2006, the appeal as well as the revision petition was dismissed. 4. Assailing the legality, correctness and propriety of the above conviction and sentence, as confirmed in appeal, this revision petition was filed. The fact that out of the business transaction, a sum of Rs.1,52,851.50 was due to the revision petitioner is admitted. The averments in the complaint itself would show that the amount was entrusted to the revision petitioner to be remitted in Federal Bank at Erode so as to enable the revision petitioner to withdraw the amount after deposit. According to the learned counsel for the revision petitioner, it being the facts, the money entrusted to the revision petitioner is actually the property of the revision petitioner and that the understanding to deposit the amount in bank and then to withdraw by cheque was only to make record of the transaction. It was also argued that, Ext.D1, the decree in O.S.No.335 of 1996 on the file of the Sub Court, Erode would show that the second respondent owed a further sum of Rs.4,92,025/- to the revision petitioner and in that circumstance, no offence under Section 406 I.P.C. Would be established. At the most it could be said that there is breach of promise and not trust. 5. In support of the argument, the learned counsel had relied upon a decision reported in Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore Cochin (A.I.R. 1953 S.C. 478) wherein at paragraph 21 it is held as follows: “It follows almost axiomatically from the definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. In the case before us, it is not disputed that if the sum of Rs.23,100/- was paid by P.W.1 to the appellant by way of illegal gratification to induce the latter to make an allotment of cloth in his favour, there could be no question of entrustement in such payment. The payee would then receive the money on his own behalf and not on behalf of or in trust for anybody else. The criminality of an act of this character would consist in illegal receipt of the money and the question of subsequent mis-appropriation or conversion of the same would not arise at all”. 6. In contra, the learned counsel for the revision petitioner would submit that after appropriating a portion of the amount, the second cheque was presented for collection and got it dishonoured and on the basis of that cheque, the second respondent was prosecuted. So, dishonest and fraudulent intention is manifest from the conduct of the revision petitioner. Canvassing my attention to Sections 23 and 25 I.P.C., learned counsel had argued that the intention of the revision petitioner was to have wrongful gain to him and wrongful loss to the second respondent. So, the appropriation of the amount was done with dishonest intention. Hence, according to the learned counsel, there was fraudulent intention in appropriating the money and sent the cheque for collection. Therefore, breach of trust is established. 7. The very statement in the complaint that the amount entrusted was due to the revision petitioner as per two bills would show that no amount other than what was due was handed over to the revision petitioner. Adding to that, Ext.D1 would show that much more amount than what was entrusted was also due to the revision petitioner from the second respondent. In the above circumstances, I fine that even if the revision petitioner appropriated the amount without remitting in the bank in compliance of the understanding between the parties, there is no wrongful gain to the revision petitioner or any wrongful loss to the second respondent. In the event the revision petitioner prosecuted the second respondent on the basis of the dishonoured cheque, he might have good defence. I am told that the revision petitioner prosecuted the second respondent and that ended in acquittal. In the event it was a malicious prosecution, the second respondent would get a cause to sue for damages for malicious prosecution. In the event the revision petitioner prosecuted the second respondent on the basis of the dishonoured cheque, he might have good defence. I am told that the revision petitioner prosecuted the second respondent and that ended in acquittal. In the event it was a malicious prosecution, the second respondent would get a cause to sue for damages for malicious prosecution. In the above circumstances, that prosecution shall not be mingled with the prosecution in this case. In view of the facts stated earlier, there is no wrongful loss to the second respondent and there is no wrongful gain to the revision petitioner. The money appropriated was being due to the revision petitioner, it was the property of the revision petitioner and there is no breach of trust. The ratio of the decision referred earlier is applicable to the case on hand. The conviction and sentence under challenge are not sustainable and liable to be set aside. In the result, the revision petitioner is allowed. While reversing the convicting and sentence under challenge, the revision petitioner is acquitted and set at liberty.