1. The appellant William Cecil Keymer has been convicted of the offence of criminal breach of trust under S. 406, I.P.C, and sentenced to one day's imprisonment and a fine of Rs. 250. The offence charged against him was in respect of a sum of Rs. 182 which he admittedly received from the complainant Mrs. Williams. The question which arises for decision is, whether under the circumstances of the case the appellant is criminally liable or only civilly liable. He went to Mrs. Williams and told her that it was possible to purchase a motor car at an auction sale in Calcutta for a certain sum of money, that he was short of money by a certain amount and she agreed to let him have as much as she could, the condition being that half the profits of the transaction should be paid to her for the use of the money. The idea was that the car should be bought cheap and sold at a higher price. If Mrs. Williams was merely asked for a loan then it is quite clear that the appellant could have committed no criminal breach of trust with respect to the money. It is an admitted fact that he purchased no car, that he put the money into his own pocket and applied to other purposes. His case is that she lent the money to him. The Magistrate has held that the money was entrusted to him for a specific purpose, that is, in other words, that Mrs. Williams and he entered into partnership for the purpose of carrying out the purchase and sale of the car in question, that he took her share of the capital and instead of attempting to carry out the agreement applied the money to other purposes. Mrs. William's evidence as to the transaction leaves the matter in considerable doubt as to whether the transaction was a loan or the entering into a partnership between the parties. She said: “He told me at my own house that he was going to Mackenzie Lyall's auction and was going to buy a motor car. He said he had not got enough money. He said if I could let him have the money he would share the profits with me after the car was sold. I said I would give him some money.
2. He led me to suppose that the car was to be had for Rs. 460, but as I had only Rs. 182 I gave him that.” The language of Mrs. William's evidence is perfectly consistent with her meaning that the accused asked for a loan and that she gave him a loan on condition that he would carry through the transaction and would return the money and half the profits to her. If this was the transaction between the parties then in the eyes of the law there was no partnership between them and the appellant cannot be said to have been guilty of criminal breach of trust if he applied the money, which he borrowed for one purpose, to another purpose. In a criminal case the charge must be clearly made out against the accused person before he can he convicted. In the present case it is extremely doubtful what the actual transaction was. The Magistrate ought to have taken greater trouble in clearly ascertaining from the witnesses what was the exact nature of the transaction between her and the accused. I allow the appeal, set aside the conviction and sentence and direct that the fine, if paid, be refunded.
V.B/R.K
3. Appeal allowed.