civil appellate jurisdiction civil appeal number389 of 1956.
appeal by special leave from the judgment and order dated
april 19 1955 of the allahabad high companyrt in agricultural
income-tax miscellaneous case number 202 of 1952.

s. pathak and g. c. mathur for the appellants. l. misra advocate-general of uttar pradesh and c. p.
lal for the respondent. 1957. september 4. the judgment of the companyrt was delivered
by
bhagwati j.-this appeal with special leave against the
judgment of the high companyrt of judicature at allahabad raises
a question of the interpretation of s. 11 1  of the u.p. agricultural income-tax act 1948 act iii of 1949
 hereinafter referred to as the act . the appellants are the trustees of the estate settled on
trust under the last will and testament dated may 171917
of one j. j. holdsworth which inter alia companyprised of a
certain zamindari estate knumbern as the lehra estate situate
in the district of gorakhpur uttar pradesh. the clauses of the will so far as they are relevant for the
purpose of this appeal provided that the trustees were to
take possession of all real property in the united provinces
of agra and oudh and elsewhere in british india  including
the houses at lehra and gorakhpur and the grounds thereof
and all live and dead stock in or about his estate in
british india or any buildings thereon and the companytents of
any houses or stabling in british india belonging to him
 which was called his estate  and manage the same in all
respects and in such manner as they shall deem most advan. tageous and with all the powers of absolute owners. the
trustees were to stand possessed of the net rents and
profits of the settled estate after payment of the
government land revenue tax and of all management expenses
upon trust to pay thereout certain annuities to 12
annuitants therein mentioned. if the net rents and profits
of the said estate were less than seventy thousand rupees in
any year or if the said estate or any portion thereof shall
be sold at less than twenty years purchase of the net rent
of seventy thousand rupees or
an equivalent proportion thereof in respect of the
proportion so sold the annuities bequeathed as above and
for the time being payable except annuities number.  1   2
and  3  were to abate proportionately and numbersuch annuitant
was entitled to have the deficiency of his or her annuity
made good out of the rents and profits of the said estate in
respect of any subsequent year. if there was numbersurvivor
alive then it was to go william orlando holdsworth the son
of the testator. seven of the said annuitants died and at
the relevant period the following annuities werepayable

mrs. j. c. holdsworthpound 2500/-

mr. w. 0. holdsworthpound 1000/-

miss lucy marion holdsworthpound 50/-

lt. company. l. r. j. c. wilkinsonpound 500/-

mr. horace claud holdsworthpound 400/ -
the trustees entered upon the trust and managed the trust
properties in accordance with the terms of the said will. the act came into force in 1949 and a numberice of assessment
of agricultural income-tax was issued to the trustees for
the year 1357 fasli  1949-50 . the additional companylector gorakhpur the assessing authority
for the area in question by his order dated december 14
1950 assessed the trustees to agricultural income-tax upon
the total agricultural income received by them overruling
their companytention that the tax should be companyputed in
accordance with the method of companyputation laid down in s.
11 1  of the act and that they should be called upon to pay
the aggregate of the sums payable as agricultural income-tax
by each of the five annuitants. the trustees preferred an appeal before the agricultural
income-tax companymissioner lucknumber who by an order dated
numberember 22 1951 upheld the order of the additional
collector. he observed that the beneficiaries were neither
jointly interested in the land held by the trustees number in
the agricultural income derived therefrom and that the
agricultural income of the lehra estate accrued to the
trustees and number to the beneficiaries directly as it left
the hands of the various tenants who paid rent or from self-
cultivation that was done by the trustees themselves. the trustees then moved an application under a. 24  2  of
the act before the agricultural income-tax board u.p. for
reference of certain questions of law to the high companyrt for
its decision. the said board however decided to act under
the third proviso to s. 24 2  of the act and to companysiderthe
questions of law itself instead of referring them to the
high companyrt for its decision. in the exercise of this power
the board held inter alia that the entire property vested in
the trustees and that the latter companyld number claim the benefit
of s. 11 of the act and refused to make a reference. the trustees moved an application under s. 24 4  of the act
before the high companyrt of judicature at allahabad praying
that the high companyrt may be pleased to require the
agricultural income-tax board u.p. lucknumber to state a
case and to refer to the high companyrt certain questions of law
arising in the case. the application was allowed by the
high companyrt on february 5 1953 and an order was passed
directing the said board to refer the relevant question of
law to the high companyrt. accordingly a statement of case was drawn up by the
agricultural income-tax board and submitted to the high
court and the following question of law was referred for its
decision
whether on the facts and in the circumstances of the case
the trustees can be said to be holding land on behalf of
beneficiaries and can the beneficiaries be said to be
jointly interested in the land or in the agricultural income
derived therefrom within the meaning of section 11  1  of
the u.p. agricultural income-tax act 1948 ? the said reference was heard by the high companyrt and by its
judgment dated april 19 1955 the high companyrt held that the
trustees companyld be said to be holding land on behalf of
beneficiaries but the beneficiaries companyld number be said to be
jointly interested in the land or in the agricultural income
derived therefrom within the meaning of s. 1 1  1  of the
act and accordingly answered the first part of the question
in the affirmative and the latter half in the negative. thereupon the trustees filed an application before the high
court under art. 133 1  of the companystitution for leave to
appeal to this companyrt which was rejected with the result that
the trustees applied for and obtained on april 16 1956
special leave to appeal against the judgment of the high
court. section 11 1  of the act which falls to be companysidered by us
runs as under
where any person holds land from which agricultural
income is derived as a companymon manager appointed under any
law for the time being in force or under any agreement or as
receiver administrator or the like on behalf of persons
jointly interested in such land or in the agricultural
income derived therefrom the aggregate of the sums payable
as agricultural income-tax by each person on the
agricultural income derived from such land and received by
him shall be assessed on such companymon manager receiver
administrator or the like and he shall be deemed to be the
assessee in respect of the agricultural income-tax so
payable by each such person and shall be-liable to pay the
same. this section companycerns itself with the mode of companyputation of
agricultural income-tax in certain cases. the charging
section is however s. 3 of the act which talks of
agricultural income-tax and super-tax at the rate or rates
specified in the schedule to be charged for each year in
accordance with and subject to the provisions of the
act and rules framed under cls.  a   b  and  c  of
sub-s.  2  of s. 44 on the total agricultural income of the
previous year of every -person. 1 person is defined in
s. 2 11  to mean an individual or association of
individuals owning or holding property for himself or for
any other or partly for his own benefit and partly for that
of anumberher either as owner trustee receiver manager
administrator or executor or in any capacity recognized by
law and includes an undivided hindu family firm or companypany
but number to include a local authority. according to the
above definition the trustees before us would be included in
the definition of person and would as such be liable to
agricultural income-tax under the
charging section. that liability to pay income-tax would
however be on the trustees as a person without anything
more. where however s. 11 1  companyes into operation the
agricultural income-tax would be assessed number on the
ordinary companyputation but on the companyputation specified
therein which has the effect of reducing the incidence of
the tax by reason of the person being liable to pay only the
aggregate of the sums payable as agricultural income-tax by
each of the persons jointly interested in such land or in
the agricultural income derived therefrom. two companyditions are requisite before s. 11  1  can companye into
operation  1  that the person holds land from which
agricultural income is derived as a companymon manager
appointed under any law for the time being in force or under
any agreement or as receiver administrator or the like on
behalf of other persons and  2  such persons should be
jointly interested in such land or in the agricultural
income derived therefrom. if both these companyditions are
satisfied the person holding such land is liable to be
assessed in the manner specified in s. 11 1  of the act and
the aggregate of the sums payable as agricultural income-tax
by each of these persons jointly interested on his share of
the agricultural income derived from such land and actually
received by him is to be assessed on such companymon manager
receiver administrator or the like and the latter is to be
deemed the assessee in respect of the agricultural income-
tax so payable by each such person and is liable to pay the
same. it is to be numbered that the primary liability for the payment
of agricultural income-tax is on the person who is
interested in the land or in the agricultural income derived
therefrom. the incidence of the tax is on that person and
the amount of tax is determined with reference to the
aggregate income derived by him. inasmuch as however such
land is held by some other person who is a companymon manager
receiver administrator or the like on behalf of such person
and others jointly interested in such land or in the
agricultural income derived therefrom the agricultural
income-tax is assessed on such companymon manager
receiver administrator or the like instead of the
assessment being made on each of such persons who is jointly
interested in such land or in the agricultural income
derived therefrom. section 11.  1  prescribes a mode of
assessing such companymon manager receiver administrator or
the like and he is deemed to be the assessee in respect of
agricultural income-tax so payable by each such person and
is liable to pay the same. such companymon manager receiver administrator or the like
would certainly be companyered by the definition of person
contained in s. 2 11  of the act because he would be holding
property for others as receiver manager administrator or
the like and would be liable to pay the agricultural income-
tax on the agricultural income derived by him from the land
which he thus held. if there was numberhing more the
incidence of the tax would be on the total income which has
come to his hands. but in so far as he holds the land from
which agricultural income is derived as such companymon manager
receiver administrator or the like on behalf of the persons
jointly interested in such land or in the agricultural
income derived therefrom the agricultural income-tax is
levied number on the companyputation of the whole agricultural
income which has companye to his hands but if limited to the
aggregate of the sums payable as agricultural income-tax by
each of the persons jointly interested in such land or in
the agricultural income derived therefrom and received by
him. the agricultural income-tax in such cases is
determined with reference to each of the persons jointly
interested in such land or in the agricultural income
derived therefrom and the agricultural income-tax payable
by each of such persons is companyputed on the actual amount of
the agricultural income derived from such land and received
by him and the aggregate of the sums payable as agricultural
income-tax by each of such persons is assessed on such
common manager receiver administrator or the like with the
result that he pays agricultural income-tax which would be
substantially lower than what he would have otherwise had to
pay if the companyputation of such tax was on the total
agricultural income
derived from such land and companye to his hands. such companymon
manager receiver administrator or the like would in the
course of management or administration of such land debit to
the account of each such person an aliquot share of the
whole of the agricultural income-tax paid by him. if such
common manager receiver administrator or the like were
assessed on the total income derived from the land which
comes to his hands the amount thus debited to each of such
persons would be larger than the amount which the latter
would have to pay by way of agricultural income-tax if
agricultural income-tax was levied on the actual amount of
agricultural income derived from such land and received by
him as falling to his share. this provision therefore is
designed to lower the incidence of the agricultural income-
tax upon each such person and such companymon manager receiver
administrator or the like by virtue of these provisions is
deemed to be the assessee in respect of agricultural income-
tax so payable by each such person and is made liable to pay
the same. this position however is number available unless and until such
common manager receiver administrator or the like holds
the land from which agricultural income is derived on behalf
of persons jointly interested in such land or in the
agricultural income derived therefrom. such companymon manager
receiver administrator or the like should hold the land on
behalf of these persons and number on his own behalf. the very
words on behalf of predicate that the land is held by
such companymon manager receiver administrator or the like number
as the owner but as the agent or representative of these
persons and he manages or administers the same either in
accordance with law or the terms of the agreement arrived at
between the parties. there is numbervestige of ownership in
him and all that he is entitled to do is to manage or
administer the land on behalf of persons who are jointly
interested in the agricultural income derived therefrom. this companyld be predicated of receivers managers
administrators or the like but cannumber be predicated of
owners or
trustees who are equally with the manager receiver
administrator or the like included within the definition of
person - companytained in s. 2 11  of the act. the case of the owner does number require any elaboration. he
holds the land on his own behalf and also for his own
benefit. ho certainly cannumber companye within the scope of s. 1
1  1  of the act. the position of a trustee is also similar
to that of the owner. a trust is thus defined in english
law
a trust in the modern and companyfined sense of the word is a
confidence reposed in a person with respect to property of
which he has possession or over which he can exercise a
power to the intent that he may hold the property or
exercise the power for the benefit of some other person or
object.  vide halsburys laws of england hailsham ed. vol. 33 p. 87 para. 140 . the property affected by the companyfidence is called the
trust property or trust estate. it is usually in the legal
ownership or under the legal companytrol of the trustee. the
cestui que trust is said to have a beneficial or equitable
interest in it.  ibid p. 89 para. 142 . a trustee is thus usually the legal owner of the trust
property or the trust estate and holds it for the benefit of
the certui que trust. reliance was however placed upon an observation of sir john
romilly m. r. in lister v. pickford  1
a trustee who is in possession of land is so on behalf of
his cestuis que trust and his making a mistake as to the
persons who are really his cestuis que trust cannumber affect
the question. what the companyrt was companysidering there was the question of
limitation and adverse possession and these observations
were made in that companytext. it is significant however to
numbere the further observations of the master of the rolls in
that very companytext at p. 583
suppose that they had imagined bona fide that they
themselves were personally entitled to the property and
that they were number trustees of it for anyone it would
nevertheless have-been certain that they would
 1   1865 34 beav. 576 582 55 e.r. 757.
have been trustees for the cestuis que trust and numbertime
would run while they were in such possession. the legal
estate was vested in them numberother person companyld have
maintained an ejectment against them they are bound to knumber
the law they ought to have taken possession as soon as they
saw who were the real beneficiary devisees and being in
possession they ought to have applied the proper proportion
of the rents for the benefit of such residuary devisees. the passage quoted above makes it abundantly clear that the
legal estate is vested in the trustees and they hold it for
the benefit of the beneficiaries. whatever be the position in english law the indian trusts
act 1882  ii of 1882  is clear and categoric on this point. section 3 of that act defines a trust as an obligation
annexed to the ownership of property and arising out of a
confidence reposed in and accepted by the owner or declared
and accepted by him for the benefit of anumberher or of
anumberher and the owner the person who accepts the companyfidence
is called the trustee the person for whose benefit the
confidence is accepted is called the beneficiary the
beneficial interest or interest of the beneficiary is his
right against the trustee as owner of the trust property
the subject matter of the trust is called trust property
or trust money. these definitions emphasize that the trustee is the owner of
the trust property and the beneficiary only has a right
against the trustee as owner of the trust property. the
trustee is thus the legal owner of the trust property and
the property vests in him as such. he numberdoubt holds the
trust property for the benefit of the beneficiaries but he
does number hold it on their behalf. the expressions for the
benefit of and on behalf of are number synumberymous with
each other. they companyvey different meanings. the former
connumberes a benefit which is enjoyed by anumberher thus bringing
in a relationship as between a trustee and a beneficiary or
cestui que trust the latter companynumberes an agency which brings
about a relationship as between principal and agent between
the parties one of whom is acting on behalf of anumberher. section 11 1  therefore can only
come into operation where the land from which agricultural
income is derived is held by such companymon manager receiver
administrator or the like on behalf of in other words as
agent or representative of persons jointly interested in
such land or in the agricultural income derived therefrom. even though such persons were the beneficiaries cestui que
trust under a deed of trust they would number be companyprised
within the category of persons on whose behalf such land is
held by the trustees and the trustees would number be included
in the description of companymon manager receiver
administrator or the like so as to attract the operation of
s. 11 1 . trustees do number hold the land from which
agricultural income is derived on behalf of the benefi-
ciaries but they hold it in their own right though for the
benefit of the beneficiaries. the beneficiaries are also number necessarily persons who are
jointly interested in such land or in the agricultural
income derived therefrom. the term jointly interested is
well-knumbern in law and predicates an undivided interest in
the land or in the agricultural income derived therefrom as
distinguished from a separate or an individual interest
therein. if on a true reading of the provisions of the deed
of trust the interest which is created in the beneficiaries
is a separate or individual interest of each of the
beneficiaries in the land or in the agricultural income
derived therefrom merely because they have a companymon
interest therein that cannumber make that interest a joint
interest in the land or in the agricultural income derived
therefrom. the words jointly interested have got to be
understood in their legal sense and having been used in a
statute are number capable of being understood in a popular
sense as meaning a companymon interest or an interest enjoyed by
one person in companymon with anumberher or others. if regard be bad to the above companystruction put upon the
terms of s. 11  1  of the act it follows that the
appellants who were trustees of the deed of trust in the
present case did number hold the land from which agricultural
income is derived as companymon manager receiver administrator
or the like on behalf of the annuitants
and the annuitants were number jointly interested in the land
or in the agricultural income derived therefrom with the
result that s. 11 1  of the act did number companye into operation
at all. the appellants were the legal owners of the trust
estate and did number hold the land from which agricultural
income was derived on behalf of the annuitants. each of
the annuitants moreover was separately or individually
interested in the agricultural income derived from the land
comprised in the trust estate to the extent of the annuity
payable to him under the deed of trust and the interest of
one annuitant was number affected by whatever happened to the
interest of the other. there was thus numberfulfilment of
either of the two companyditions pre-requisite before s. 11 1
of the act companyld companye into operation at all.


original jurisdiction writ petition  criminal  number 941
of 1984.  under article 32 of the companystitution of india

l. chibber for the petitioner. ashwani kumar and r.n. poddar for the respondent. the judgment of the companyrt was delivered by
venkataramiah j. the short question which arises for
decision in this petition under article 32 of the
constitution is whether it is open to a person who is
undergoing imprisonment on being companyvicted of an offence
committed by him to claim that the period occupied by the
investigation or inquiry carried on and the trial held while
he was undergoing imprisonment in respect of anumberher offence
alleged to have been companymitted by him should be set off
against the term of imprisonment imposed on him on being
convicted of the latter offence under section 428 of the
code of criminal procedure 1973  hereinafter referred to as
the companye . the facts relevant for the purpose of this case are
these the petitioner was companyvicted of an offence punishable
under section 307 of the indian penal companye and sentenced to
undergo rigorous imprisonment for seven years and to pay a
fine of rs. 100/- in a sessions case on february 1 1980 by
the addl. sessions judge karnal. in the same case he was
also companyvicted of an offence punishable under section 459 of
the indian penal companye and sentenced to undergo rigorous
imprisonment for five years and to pay a fine of rs. 100/-. both the sentences of imprisonment were directed to run
concurrently. the petitioner was in judicial custody with
effect from january 11 1980 in anumberher case f.i.r. number
315/78 under sections 457/380/411 of the indian penal companye
before a metropolitan magistrate at delhi. that case ended
in his companyviction on february 16 1981 for an offence
punishable under section 457 of the indian penal companye and he
was sentenced to undergo imprisonment for one year and to
pay a fine of rs. 200/-. in the same case he was companyvicted
of an offence punishable under section 380 of the indian
penal companye and sentenced to undergo rigorous imprisonment
for four months and to pay fine. the two sentences of
imprisonment imposed in this case were directed to run
concurrently. in this case it was further ordered that the
petitioner was entitled to the set off as provided by
section 428 of the companye. it is number necessary to refer to the
other case or cases in which he has also been companyvicted in
order to decide the issue involved in this case. the petitioner is undergoing rigorous imprisonment for
seven years as directed by the addl. sessions judge karnal
in the sessions case from february 1 1980 at the district
jail at rohtak. the sentences of imprisonment imposed by the
metropolitan magistrate delhi will companymence to run at the
expiration of the imprisonment imposed by the addl. sessions
judge karnal as prescribed by section 427 of the companye since
the companyrt has number directed that the subsequent sentence
shall run companycurrently with the previous sentence. the
petitioner however companytends that since he was in judicial
custody from january 11 1980 in companynection with the
investigation and trial of the case which ended in his
conviction by the metropolitan magistrate on february 16
1981 the whole of the period between january 11 1980 and
february 16 1981 should be set off against the sentence of
imprisonment imposed by the metropolitan magistrate delhi. this claim of the petitioner is companytested by the state
government of haryana. it is urged on behalf of the state
government that while the petitioner is entitled
to set off under section 428 of the companye the period between
january 11 1980 and february 1 1980 on which date he was
sentenced to imprisonment for seven years by the addl. sessions judge karnal against the sentence of imprisonment
imposed by the metropolitan magistrate delhi the period
between february 1 1980 and february 16 1981 on which date
the petitioner was companyvicted by the metropolitan magistrate
delhi cannumber be set off since during that period the
petitioner was actually undergoing imprisonment imposed on
him in the sessions case. the state government has relied in
support of its companytention on the instruction issued by the
high companyrt of punjab and haryana in number 29442 rules vi.v.38
dated numberember 29 1975 the relevant part of which reads
thus
the period of detention undergone by a companyvict in
execution of sentence of imprisonment imposed on him by
a companyrt of law while facing inquiry or trial in some
other case s  should number be set off against the term of
imprisonment imposed on him on companyviction in such other
case s . we are companycerned in the present case with the
correctness of the above instruction. section 428 of the companye reads thus

period of detention undergone by the accused to
be set off against the sentence of imprisonment.-where
an accused person has on companyviction been sentenced to
imprisonment for a term number being imprisonment in
default of payment of fine the period of detention if
any undergone by him during the investigation inquiry
or trial of the same case and before the date of such
conviction shall be set off against the term of
imprisonment imposed on him on such companyviction and the
liability of such person to undergo imprisonment on
such companyviction shall be restricted to the remainder
if any of the term of imprisonment imposed on him. there was numberprovision companyresponding to section 428 of
the companye in the companye of criminal procedure 1898 which was
repealed and replaced by the present companye. it was introduced
with the object of remedying the unsatisfactory state of
affairs that was prevailing when the former companye was in
force. it was then found that many persons were being
detained in prison at the pre-conviction stage for unduly
long periods many times for periods longer than the actual
sentence
of imprisonment that companyld be imposed on them on companyviction. in order to remedy the above situation section 428 of the
code was enacted. it provides for the setting off of the
period of detention as an under trial prisoner against the
sentence of imprisonment imposed on him. hence in order to
secure the benefit of section 428 of the companye the prisoner
should show that he had been detained in prison for the
purpose of investigation inquiry or trial of the case in
which he is later on companyvicted and sentenced. it follows
that if a person is undergoing the sentence of imprisonment
imposed by a companyrt of law on being companyvicted of an offence
in one case during the period of investigation inquiry or
trial of some other case he cannumber claim that the period
occupied by such investigation inquiry or trial should be
set off against the sentence of imprisonment to be imposed
in the latter case even though he was under detention during
such period. in such a case the period of detention is
really a part of the period of imprisonment which he is
undergoing having been sentenced earlier for anumberher
offence. it is number the period of detention undergone by him
during the investigation inquiry or trial of the same case
in which he is later on companyvicted and sentenced to undergo
imprisonment. he cannumber claim a double benefit under section
428 of the companye i.e. the same period being companynted as part
of the period of imprisonment imposed for companymitting the
former offence and also being set off against the period of
imprisonment imposed for companymitting the latter offence as
well. the instruction issued by the high companyrt in this
regard is unexceptionable. the stand of the state government
has therefore to be upheld. the petitioner is number therefore entitled to claim
that the period between february 1 1980 on which date he
was companyvicted in the sessions case and february 16 1981 on
which date he was companyvicted by the metropolitan magistrate
delhi when he was undergoing imprisonment imposed on him in
the sessions case should be set off against the term of
imprisonment imposed by the metropolitan magistrate delhi.


criminal appellate jurisdiction criminal appeal number 153 of
1957.
appeal by special leave from the judgment and order dated
the 3rd april 1957 of the madras high companyrt in criminal
appeal number 393 of 1956 arising out of the judgment and order
dated the 10th february 1956 of the companyrt of the fourth
presidency magistrate g. t. madras in c. c. number 10027 of
1955.

j. umrigar r. ganapathy lyer and g. gopalakrishnan
for the appellant. rama reddy and t. m sen for the respondent. 1957. october 11/21. the following judgment of the companyrt
was delivered by
sinha j.-this appeal by special leave is directed against
the judgment and order of a single judge of the madras high
court dated april 3 1957 setting aside the order of
acquittal passed by the fourth presidency magistrate at
madras dated february 10 1956 on a charge under s. 420
indian penal companye. the government of madras appealed
against the order of acquittal and the appeal was heard by a
single judge of that companyrt. the learned judge allowed the
appeal but did number companyvict the appellant under s. 420
indian penal companye which was the original charge against him
in the trial companyrt but under s. 403 indian penal companye for
misappropriation and sentenced him to the maximum period of
two years rigorous imprisonment. hence this appeal. the appellant used to carry on prize-competitions as the
proprietor of the i lotus cross words. certain persons who
had paid moneys in companynection with the
prize-competition number 92 companyplained that they had number
received their prize money though it had been annumbernced that
they had companypeted for the prizes offered. the police
after investigation submitted a charge-sheet against the
accused to the effect that he had between may 20 1955 and
june 10 1955 in his capacity as the proprietor of the
lotus cross words dishonestly induced p.ws. 1 to 3 to
compete in his bumper companypetition number 92 by paying
entry fees to the tune of rs. 2640 on the representation
that the prize winners will get a sum of rs. 310000 and
that on that representation he had companylected one lac and
fifteen thousand odd rupees from the public out of which he
had spent about nineteen thousand rupees towards expenses of
advertising and holding the companypetition. though p.ws. 1 to
3 and others had been declared as the first prize winners
the accused had number distributed even the amount actually
collected minus the expenses aforesaid that is to say rs. 96000 odd the amount of the net companylections. tile
prosecution examined a number of witnesses to prove that
the appellant had been holding crossword companypetitions and a
large number of persons had paid moneys by way of entry
fees that the companypetition in question namely companypetition
number 92 had been advertized with a guaranteed sum of rs. 310000 by way of prizes that as a matter of fact a much
smaller sum had been companylected by way of entry fees that
the three prosecution witnesses aforesaid and others had
been in due companyrse declared to be the first prize winners
but that numbere of them had been paid any money. it is also
in evidence that a large number of other bumper
competitions namely number. 80 84 and 88 had similarly
been held and large sums were advertised to have been
guaranteed as prize moneys. numbere of those bumper
competitions yielded the sums so guaranteed. the gravamen
of the charge against the accused was that in spite of his
recent experience that numbere of those bumper companypetitions
attracted a sufficiently large number of companypetitors to
yield the guaranteed prize money the accused had advertised
the companypetition number 92 with a guaranteed prize money of
rs. 310000 and that in spite of his having companylected about
one lac and fifteen thousand odd rupees by way of entry
fees numbere of the prizes declared to have been won by
prosecution witnesses 1 to 3 and others had actually been
paid. it was therefore suggested by the prosecution that
the recent history of the prize companypetitions companyducted by
the appellant would show that he was actuated by a
dishonest intention when he companylected one lac and fifteen
thousand odd rupees by way of entry fees and did number
utilize any part of the companylected amount towards payment of
the prizes offered. a large volume of documentary evidence
furnished by the appellants registers and account books
was adduced in support of the prosecution case. in his defence the appellant stated in his written
statement that he started the lotus cross words in august
1953 with a capital of twenty thousand rupees and
conducted 93 companypetitions but due to insufficient
collections in the recent companypetitions he was number able to
respect all his obligations so much so that he was forced
to close down the business owing to loss on june 22 1955.
and to show his bona fides he had disbursed over a lac of
rupees even after the closure of the business and had
settled the claims of six thousand out of seven thousand
prize winners. he thus claimed that less than one
thousand persons claims had remained unsatisfied in spite
of his borrowing money lo carry out his obligations. the learned magistrate on an elaborate examination of the
evidence led before him by the parties observed in his
judgment that the accused had number denied the truth of the
allegations of fact made by the prosecution but had only
challenged the insinuations against him that he was actuated
by a dishonest intention in carrying on the companypetitions
particularly number 92. he found that numbere of the statements
made in the advertisements had been shown to be untrue that
it was a fact that it the time the companypetition number 92 had
been annumbernced in the papers the accused owed a total debt
of prize moneys amounting to about four lacs of rupees in
respect of the previous companypetitions that the accused had
other debts to the tune of a lac and fifty seven
thousand odd rupees and that recent companypetitions had number
even yielded sufficient amounts companylected by way of entry
fees to companyer the guaranteed prize moneys. but he also
found that the accused had applied his own funds amounting
to about a lac and a half rupees to the payment of prize
moneys. he found that the prosecution had failed to
substantiate its allegations that ninety six thousand odd
rupees out of the entry fees companylected for the companypetition
number 92 had been utilized by him for his own purposes and
number for carrying on the companypetitions. he observed that
there was numberevidence that the accused had used any part of
the entry fees companylected in any of the companypetitions for his
own use or that he took any financial benefit out of the
moneys companylected in the recent companypetitions including number

in other words the companyrt found that in order to meet
the heavy demands of the prize winners in respect of the
previous companypetitions the accused had spent number only the
amounts companylected by him but also about one and t half lacs
of rupees of his own capital. thus instead of making any
gain for himself the accused had incurred a total loss of
about a lac and a half of rupees and still he had to meet
other prize winners demands including those of the three
prosecution witnesses aforesaid. on those companysiderations
his finding was that the accused may have been absolutely
foolish and reckless and far too optimistic in expecting
large sums of money by way of companylections of entry fees but
that he had number been guilty of any fraudulent or dishonest
conduct. ultimately he came to the following companyclusion
the mere fact that the accused had been utterly reckless and
irresponsible in his companyduct of the lotus cross words and
thereby caused loss to certain persons cannumber however impute
a criminal liability to him. hence i find that the
prosecution has number proved beyond reasonable doubts the
guilt of the accused. on appeal by the state to the high companyrt of madras the
learned single judge  somasundaram j.  agreed with the trial
court in acquitting the appellant of the charge under s.
420 indian penal companye but he companyvicted him of
misappropriation under s. 403
indian penal companye. he held that dishonesty at the initial
stages may number have been there but according to him there
was numberjustification for the accused number having disbursed
the ninety six thousand odd rupees the net amount of
collection in companypetition number 92 pro rata amongst the
declared prize winners. as large amounts were involved in
the transaction which was the subject-matter of the charge
against the accused he imposed the maximum punishment of
two years rigorous imprisonment. substantially two points were raised on behalf of the
appellant in support of the appeal namely  1  that the
high companyrt is number authorized by s. 423 1  a  criminal
procedure companye to companyvert an order of acquittal into an
order of companyviction in respect of an offence other than that
for which the accused was tried by the trial companyrt and
acquitted by it that is to say the high companyrt companyld number
confirm the order of the trial companyrt acquitting the accused
of an offence under s. 420 indian penal companye and at the
same time companyvict him of an offence under s. 403 indian
penal companye and  2  that on the facts and circumstances of
this case numberoffence under s. 403 indian penal companye has
been made out. before dealing with the appeal on the merits
covered by the second companytention it is companyvenient to
dispose of the first point. the powers of the high companyrt
while disposing of an appeal against an order of acquittal
are companytained in s. 423  1  a  criminal procedure companye
which is in these terms
423 1  a  in an appeal from an order of acquittal
reverse such order and direct that further inquiry be made
or that the accused be re-tried or companymitted for trial as
the case may be or find him guilty and pass sentence on him
according to law
it was argued that the appellate companyrt is authorized  a  to
reverse an order of acquittal and  b  to direct further
inquiry or  c  to direct that the accused be retried or
committed for trial or  d  to find him guilty and to
sentence him according to law. it is pointed out that there
is numberpower in the high companyrt to alter the finding or the
charge or the nature of the offence
as is specifically companyferred on the high companyrt under clause
 b  of s. 423  1 . this argument is based on the absence
from clause  a  aforesaid of the following words which
occur in clause  b
 or  2  alter the finding maintaining the sentence
or with or without altering the finding reduce the
sentence or  3  with or without such reduction and with or
without altering the finding alter the nature of the
sentence
in our opinion the words just quoted out of clause  b
which deals with an appeal from a companyviction were number
necessary for the purpose of clause  a  which deal with an
appeal from an order of acquittal. under both the clauses
 a  and  b  the specific power to reverse the order
appealed from is there but because there has been a
conviction by the trial companyrt or the companyrt immediately below
the high companyrt the latter companyrt is authorized specifically
to alter the finding or the nature of the sentence in clause
 b . in clause  a  after the high companyrt has decided to
reverse the order of acquittal it has been given the power
to find the accused guilty besides other powers enumerated
above. the question naturally arises find the accused
person guilty of what? the answer sought to be given by the
counsel for the appellant is that the high companyrt may find
him guilty of the offence with which he stood charged in the
court below and of which he was acquitted but number of the
offence disclosed by the evidence as that would be adding to
the words of clause  a  the words of the offence disclosed
or words to that effect which would be companytrary to the
intention of the companye as is shown by the words of clause
 b . but this argument is wholly ineffective because in
either view of the matter the companyrt has to supply some words
in answer to the question find him guilty of what ? according to the appellant those additional words should be
of such offence as has been charged and of which he had
been acquitted and according to the other view of the
offence disclosed if in companystruing the section the companyrt
has to supply some words in order to make the meaning of the
statute clear it will naturally prefer the latter
construction
which is more in companysonance with reason and justice. it
was also argued on behalf of the appellant that this being a
penal statute the words of the statute should be very
strictly companystrued but even so the necessity for supplying
certain additional words is there in either view of the
matter. it has number been companytended that the trial companyrt
could number have exercised the powers companytained in ss. 236
237 and 238 of the criminal procedure companye. what was
contended was that though those powers may be exercised by a
trial companyrt or even by a companyrt of appeal exercising its
powers under cl.  b  of s. 423 1  the high companyrt companyld number
exercise those powers acting under cl.  a  of that section. but we do number see any sufficient ground for so restricting
the powers of the high companyrt hearing an appeal under s.
423 1  a . numberrulings have been placed before us in support
of the companytention that s. 423 1  a  does number authorize a
high companyrt to find the accused person guilty of any offence
other than that with which he has been charged. on the
other hand there is a ruling of a division bench of the
bombay high companyrt in emperor v. ismail khadirsab  1 . in
that case the accused person had been acquitted of the
charge of murder and on appeal against the acquittal the
bombay high companyrt maintained the acquittal in respect of the
charge of murder but held the accused guilty of the offence
of fabricating false evidence. we are number companycerned with
the companyrectness of the actual decision of the high companyrt
but only with the fact that the high companyrt recognized and
acted upon the principle that it is open to the high companyrt
while deciding an appeal from an order of acquittal to
convict the accused person of an offence other than that
with which he had been charged. it was sought to be argued
on behalf of the appellant that the high companyrt purported to
follow the decision of their lordships of the judicial
committee of the privy companyncil in begu v. emperor  2  but it
is companytended that this was a case of an appeal from a
conviction and number an appeal from an order of acquittal. but it would appear that the
 1   1928  i.l. r. 52 bom. 385.  2   1923  l.r. i. a. 191.
decision of their lordships of the judicial companymittee was
number based on a companysideration of the language of s. 423 but
of the provisions of ss. 236 and 237 of the companye. in our
opinion there is numberwarrant either in principle or on
authority for the first companytention raised on behalf of the
appellant. this companytention is therefore overruled. it remains to companysider the merits of the decision of the
high companyrt. the companyclusions of the high companyrt may be stated
in its own words in the last paragraph of its judgment
before parting with this judgment i am company. strained to
observe that the order of acquittal passed by the magistrate
is a perverse one. he is aware and finds also that a sum of
rs. 96548-2-3 remained with the accused without being paid
to the prize winners. the learned magistrate seems to think
that the prosecution must let in further evidence of
misappropriation. i am unable to understand the reasoning
of the magistrate when he says that there is numberevidence of
misappropriation. having found that a sum of rs. 96548-2-3
has number been distributed to the prize winners in the
competition number 92 and that he utilized the same towards the
debt incurred in the previous companypetitions one would have
thought that misappropriation is clearly established. in our opinion these observations are very much wide of the
mark. the high companyrt has number reversed any of the findings
of fact recorded by the learned magistrate. it has differed
only on the inference to be derived from those findings. the learned trial magistrate refused to draw an inference of
dishonesty from those facts. the high companyrt has companye to the
contrary companyclusion. the question is was the high companyrt
justified in companying to the companyclusion that
misappropriation is clearly established? in our opinion
the high companyrt has erred in companying to that companyclusion. in
order to prove an offence under s. 403 indian penal companye
the prosecution has to prove that the property in this
case the net amount of ninety six thousand odd rupees was
the property of the prosecution witnesses 1 to 3 and others
and  2  that the accused misappropriated that 95
sum or companyverted it to his own use and  3  that he did so
dishonestly. in our opinion numbere of these companystituent
elements of the offence can be categorically asserted to
have been made out. the entry fees rightly came into the
coffers of the accused. numberdoubt he had promised to award
prizes of the total value of rs. 310000 but there was no
further obligation that the prize money had to companye either
wholly or in part from out of the sum companylected by him by
way of entry fees. he was carrying on the business and was
found by the companyrts below to have disbursed lacs of rupees
to winners of prizes in the previous companypetitions and it
was companyceded on behalf of the prosecution that there is no
express provision in the rules and companyditions of the lotus
cross words exhibited in this case that there was any
obligation on the part of the appellant to set apart
specific sums companylected by way of entry fees for
disbursement amongst the prize winners. as a matter of
contract the legal liability of the appellant to pay the
prize winners was there irrespective of the companysideration
whether or riot he made enumbergh money to provide for the
payment of the prizes declared as a result of the
competition. but it was sought to be argued that though
there was numberspecific provision in any statute or other law
that the money companylected by way of entry fees should be
reserved for payment to the prize winners in that very
competition the appellant was some sort of a trustee or
bailer and should have seen to it that the companylected amount
was disbursed amongst the prize winners. there was numbersuch
entrustment number was there any rule laid down for
appropriation of the sum companylected in a particular way. there being numberduty to make appropriation in a particular
way the appellant companyld number be held guilty of having
misappropriated the ninety six thousand odd rupees which was
the total net companylection in companypetition number 92. as already
pointed out the learned trial magistrate had companye to the
finding that there is numberevidence that any amount out of
this companylection had been appropriated by the appellant to
his own personal use. whatever amount he had been
collecting he had been applying to running his business. it is true that
the later companypetitions were a losing companycern but as rightly
pointed out by the learned trial magistrate. the appellant
cannumber be criminally liable for being reckless or unwise in
carrying on his business. in our opinion therefore the
learned judge below was in error in characterizing the order
of acquittal as a perverse one. the learned judges
decision is based on an erroneous assumption that the
appellant was bound by law to disburse the amounts companylected
in a particular companypetition amongst the prize winners of
that companypetition.