High Court | Courts & Cases

Judgment

1. State as well as perused the record. The present application has been filed for the following main

2. relief:- "Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash / Set- aside the impugned order dated 08.06.2023 as well as 09.04.2024 passed by the Learned Court below rejecting the discharge application of the petitioner in terms of the criminal case no. 1320/2015 state government versus Bhagwat Prasad, arising out of case crime no. 700/2011, u/s 420,467, 468. 471 I.P.C. P.S. Deeh, District Raebareli (contained as Annexure no. 1 and 2), in the interest of justice." By the impugned order dated 08.06.2023, the third Additional 3. Chief Judicial Magistrate (in short "Magistrate"), Raebareli has rejected the application seeking discharge by the applicants. The relevant portion reads as under :- "i=koyh ds voyksdu ls Li"V gksrk gS fd orZeku izdj.k esa tks lk{; foospukf/kdkjh ds }kjk ladfyr fd;k x;k gS] mlesa mUgksaus uk;c rglhynkj ds }kjk dh x;h tkap dks viuh dsl Mk;jh dk Hkkx cuk;k gSA mDr tkap ds voyksdu ls ;g fofnr gksrk gS fd ,d vkns'k U;k;ky; uk;c rglhynkj eqdnek ua0 283@1-4-2002 rqylk nsoh ds LFkku ij f'kodqekjh nsoh iRuh fo'kEHkj dk uke olh;rukek fnukafdr 31-06-1997 ntZ gksus dk vafdr gS] ftl ij gLrys[k 20-04-2002 fy[kk gqvk gSA mlh tkap esa ;g Hkh ik;k x;k] tks [krkSuh dks izHkkoh crk;k x;k gS] og [krkSuh Qlyh 1407 ls izHkkoh gS rFkk dEI;wVj dh QhfMax o"kZ 2002 ds 06 o"kZ ckn dh x;h gS] fdUrq fnukad 20-04-2002 vafdr gSA iz'uxr vkns'k tks fd dzekad 20 ij vafdr gS ij gLrfyfi vU; gLrfyfi ls fHkUu gS ml ij fdlh deZpkjh ds gLrk{kj ugha gS u gha QhfMax fd;s tkus ds laca/k esa dksbZ gLrk{kj gSA okn la[;k&283 vraxZr /kkjk&34 Hkw jktLo vf/kfu;e ds fefly can vkns'k ds LrEHk esa fnukad 24-03-2002 dks okn fujLr fd;k tkuk vafdr gS fdUrq i=koyh esa blls lacaf/kr vkns'ki= layXu ugha gSA i=koyh esa tks vkns'ki= fy[kk gS og fdlh ihBklhu vf/kdkjh }kjk gLrk{kfjr ugha gSA vkns'k fnukafdr 01-04-2002 Vkbi'kqnk gS mlls lacaf/kr vkns'ki= ij ihBklhu vf/kdkjh ds gLrk{kj ugha gSA i=koyh dks lR;kfir djus laca/kh gLrk{kj ugha gS ftlls ;g LIk"V gks jgk gS fd nk;jk izi= dks cny fn;k x;k gS ftlls fefly can ifjokn fujLr gksus ;ksX; gS lacaf/kr vkns'ki= gVkdj u;k yxk;k x;k gSA o"kZ 2007 esa dwVjfpr vkns'k 01-04-2002 rS;kj dj layXu dj fn;k x;k gS o"kZ 2007 esa izpfyr gksus okyh [krkSuh o"kZ 1414 1420 esa dwVjfpr vkns'k dk vadu fd;k x;kA vr % mDr rF;ksa ,oa ifjfLFkfr;ksa ,oa i=koyh ij miyC/k izi= ds voyksdu ls Li"V gS fd 2 vfHk;qDrx.k ds }kjk izFke n`"V;k vijk/k dkfjr fd;k tkuk ifjyf{kr gksrk gSA ftldk fuLrkj.k xq.k&nks"k ds vk/kkj ij fd;k tkuk vko';d gSA vr% mDRk rF;ksa ,oa ifjfLFkfr;ksa dks n`f"Vxr j[krs gq, vfHk;qDrx.k dks bl Lrj ij mUeksfpr fd;s tkus dk vk/kkj i;kZIr ugha gSA vr% vfHk;qDrx.k dk izkFkZuki= [kkfjt fd;s tkus ;ksX; gSA"

4. By the impugned order dated 09.04.2024, the First Additional Sessions Judge, Raebareli (in short "revisional court") dismissed the revision filed by the applicants, challenging the order dated 08.06.2023. The facts considered by

5. rejecting/dismissing the revision which appears from the impugned order passed by the revisional court are extracted herein under :- the revisional "izdj.k dh i`"BHkwfe bl izdkj gS fd lq[kbZ }kjk izkFkZuki=] vUrxZr /kkjk 156 ¼3½ na0iz0la0 bu vfHkdFkuksa ds lkFk izLRkqr fd;k x;k fd izkFkhZ dh iRuh Jherh rqylk nsoh dh e`R;q ds mijkUr Hkwfe la[;k&819 jdck 0-8290 gsDVs;j fLFkr xzke Vsdkjh nkanw] ijxuk jks[k rglhy o Fkkuk lyksu] ftyk lh0,l0,e0 uxj izkFkhZ ds uke jktLo vfHkys[kksa esa ntZ gqbZ vkSj mDr Hkwfe ij cjkcj dkfct] n[khy pyk vk jgk gSA o"kZ 2008 esa izkFkhZ us mDr Hkwfe dh dEI;wVjhd`r [krkSuh fudyokbZ Fkh] rks mlesa izkFkhZ dk uke crkSj Hkwfe/kj Lokeh vafdr FkkA o"kZ 2008 ds dqN le; ckn izkFkhZ dk xkao pdcUnh esa vk x;kA pdcUnh vf/kdkfj;ksa dks jktLo vfHkys[k miyC/k djk;s tkrs le; izkFkhZ ds xkao ds fo'EHkj iq= eku cgknqj us izkFkhZ dh mijksDRk ewY;oku tehu dks gM+ius ds fy, rglhy dfeZ;ks ls lkaB&xkaB djds tky lkth o /kks[kk /kM+h djrs gq,] Ny] diV iwoZd ,oa cnfu;rh ls mDr tehu dks viuh iRuh f'ko dqekjh ds uke ntZ djok fy;kA fo'EHkjukFk o mudh iRuh f'kodqekjh us ;g tkurs gq, fd mijksDRk tehu mudh o muds ifjokj dh ugha gS] vius dks Qk;nk igqapkus o izkFkhZ dks cstk uqdlku igqapkus ds fy, rglhy dfeZ;ksa dks feyk dj izkFkhZ dh mijksDRk tehu vius uke djok;k gSA izkFkhZ dks bl ckr dh tkudkjh rc gqbZ tc izkFkhZ us fnukad 31 ekPkZ 2011 dks viuh mijksDRk tehu dh [krkSuh pdcUnh dk;kZy; ls izkIr fd;kA mlds ckn mlus rglhy o pdcUnh foHkkx esa mijksDRk ?kksVkys dh f'kdk;r dh ysfdu rglhy o pdcUnh vf/kdkjh izkFkhZ dks nkSM+krs jgs vkSj dksbZ dk;Zokgh ugha dh] rc izkfFkZuh us fnukad 08-07-2011 dks mi ftykf/kdkjh lyksu dks izkFkZuki= fn;k mlds izkFkZuki= ij turk n'kZu esa f'kdk;r la0 148 ntZ gksus ij mi ftykf/kdkjh lyksu v'kksd dqekj JhokLro us lyksu rglhynkj dks fnukad 11-07-2011 dks tkap djus dk vkns'k fn;kA rglhynkj lyksu us viuh tkap vk[;k esa ik;k fd ftl viathd`r olh;r ds vk/kkj ij Jherh f'kodqekjh iRuh fo'kEHkj dk uke vafdr fd;k x;k gS] og viathd`r olh;r lansg ds ?ksjs ls vkPNkfnr ,oa dwV jfpr izrhr gksrh gS] ftlds vk/kkj ij ikfjr vkns'k fof/k fo#) gS] ftlls Li"V gS fd f'ko dqekjh o mlds ifr fo'EHkj us dwV jfpr QthZ viathd`r olh;r dk vk/kkj cukdj rRdkyhu lyksu rglhy ds jktLo dfeZ;ksa ls lkaB&xkaB djds izkFkhZ dh ewY;oku mijksDr Hkwfe/kjh tehu dks gM+ius ds fy, csbekuh o cnfu;rh ls tkylkth djrs gq, viuh iRuh f'ko dqekjh ds uke ntZ djok fy;k gSA dfFkr okn la[;k& 283@01-4-2002 ftlds vk/kkj ij izkFkhZ dk uke jkTkLo vfHkys[kksa ls gVkdj f'ko dqekjh mijksDRk ds uke ntZ fd;k x;k gSA ;g i=koyh Hkh xk;c gS vkSj dfFkr vkns'k fnukad 01-4-2002 ftlds vk/kkj ij izkFkhZ dk uke [kkfjt djds f'kodqekjh dk uke ntZ djus dk vkns'k gksuk dgk x;k gS] ml dfFkr vkns'k ij fdlh vf/kdkjh ds gLrk{kj ugha gSA mDr rF;ksa dk mYys[k rglhynkj lyksu us viuh tkap vk[;k fnukad 09 flrEcj 2011 esa fd;k gSA mijksDr tehu ds uku tfj;s id&11 fnukad 12-12-2002 dks rRdkyhu vf/kdkjh ys[kiky }kjk ntZ dh x;h] tcfd f'kodqekjh dk uke fnukad 01-4-2002 ds dfFkr vkns'k ls ntZ gqvk] ftlls Li"V gS fd dfFkr vkns'k fnuakfdr&01-04-2002 QthZ o dwV jfpr gS rFkk fnukad 01-4-2002 ds dfFkr vkns'k ds 3 djhc vkB ekg ckn izkFkhZ dk uke RkRdkyhu gYdk ys[kiky }kjk tfj;s id&11 u ntZ fd;k tkrkA fnukad 31-3-2011 dks izkIr [krkSuh esa 21-6-2008 dks ikfjr vkns'k igys ntZ fd;k x;k gS vkSj fnukad&20-4-2002 dk vkns'k ckn esa ntZ fd;k x;k gS] tks bafdr djrk gS fd fnukad 21-06-2008 ds vkn mijksDRk f'kodqekjh dk uke dfFkr QthZ o dwV jfpr vkns'k ls p<+k;k x;k gSA mijksDr yksxksa ds }kjk fd;k x;k d`R; xEHkhj vijk/k gS blfy, rglhy ds vf/kdkjh dksbZ dk;Zokgh djus dks rS;kj ugha gSA rglhynkj lyksu dh tkap fjiksVZ Hksts tkus ds ckn Hkh mi ftykf/kdkjh lyksu us Hkh vHkh rd dksbZ dk;Zokgh ugha dh gSA bldk dkj.k izkFkhZ lEiw.kZ ?kVuk dh lwpuk o nLrkosth lk{; U;k;ky; dks ns jgk gSA izkFkZuki= ds lkFk rglhynkj lyksu dh vk[;k fnukafdr 09 flrEcj 2011 iz'uksRrjh ftlij uk;c rglhynkj lyksu dh vk[;k o rglhynkj lyksu }kjk mDRk vk[;k dh laLrqfr dh x;h gS rFkk eqvkfQl[kkus dh fjiksVZ fnuakd 03-6-2011 ftlesa dfFkr okn la[;k&283@01-04-2002 dk nkf[ky gksuk ugha ik;k x;k gS dh Nk;k izfr laYkX; gSA izkFkhZ us ?kVuk dh lwpuk tfj;s jftLVªh iqfyl v/kh{kd N=ifr 'kkgwth egjkt uxj dks nh ysfdu u rks dksbZ fjiksVZ ntZ gqbZ vkSj u gh dksbZ dk;Zokgh dh x;hA" The orders have been challenged on the main ground to the effect 6. that to a civil dispute, by lodging F.I.R. by preferring an application under Section 156 (3) Cr.P.C. by the informant Sukhai (since died) a criminal colour has been given.

7. On the issue involved in the instant case this court finds it appropriate to take note of some pronouncements including referred by the learned counsel for the applicant. According to settled principle of law the civil proceedings and 8. criminal proceedings can proceed simultaneously and criminal proceedings can not be quashed or interfered merely on the ground of pendency of civil proceedings/case and this principle can be deduced from the following authorities :- In the case of M.S. Sheriff v. State of Madras and others, AIR

8.1 1954 SC 307, Apex Court in paragraphs 15 and 16 observed as under: "15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decision in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of the Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.

16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interest demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is 4 undesirable to let things slide till memories have grown too dim to trust.

This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S.476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."

8.2 In the case of M. Krishnan v. Vijay Singh and another, AIR 2001 SC 3014, the Hon'ble Apex Court in paragraphs 5 and 11 has propounded as under: "5.Accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil Court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yard-sticks. The onus of proving the allegations beyond reasonable doubt, in criminal cases, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of. The High Court was not, in any way, justified to observe: "In my view, unless and until the civil Court decides the question whether the documents are genuine or forged, no criminal action can be initiated against the petitioners and in view of the same, the present criminal proceedings and taking cognizance and issue of process are clearly erroneous."

11. The impugned judgment being contrary to the settled position of law is thus not sustainable. The appeal is allowed and the impugned judgment of the High Court is set aside by upholding the order of the Trial Magistrate dated 3-8-1998. The Trial Magistrate shall now proceed in the matter in accordance with law."

8.3 In the case of Mahesh Choudhary v. State of Rajasthan and Another, 2009 AIR SCW 2449, the Hon'ble Apex Court in paragraph 14 has held as under: 5 "It is also well settled that save and except very exceptional circumstances, the court would not look to any document relied upon by the accused in support of his defence. Although allegations contained in the Complaint Petition may disclose a civil dispute, the same may by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. For the purpose of exercising its jurisdiction, the superior courts are also required to consider as to whether the allegations made in the FIR or Complaint Petition fulfill the ingredients of the offences alleged against the accused."

8.4 In the case of Tapas Adhikari and another v. State of U.P. and Another, 2009 (5) ADJ 649, the Hon'ble Apex Court in paragraph 8 has held as under: "8........So far as the pendency of civil suit is concerned, the proceedings in civil or revenue Courts are filed for the purpose of obtaining different reliefs. The criminal proceedings may not be quashed in case such proceedings are barred by law or the fabrics of the proceedings is parallel of the civil in nature for constituting any offence. Its remedy is available in civil or revenue Courts but on the basis of allegation, prima facie, any criminal offence is made out, the same may not be quashed only on the ground that civil proceedings are pending. It is well settled proposition of law that civil and criminal proceedings may run parallel, therefore, on account of pendency of the civil suit, the proceedings of the present case cannot be quashed...." In the case of Khurram Siddiqui v. Km. State of U.P., 2010 8.5 (9)ADJ 599, this court in paragraphs 4,8 and 9 has observed as under: "4. Learned Chief Judicial Magistrate was of the view that the dispute is of civil nature and the question whether or not the sale deed is a forged document, can only be decided by the Civil Court. It was also held that a litigation is also pending in the Revenue Court. Learned Chief Judicial Magistrate relying on Indian Oil Corporation v. NEPC India Ltd and others, (2006)VI SCC 736, formed the opinion that criminal proceeding in regard to a civil dispute should not be permitted to proceed. It is thus well settled that a civil as well as criminal proceeding 8. in regard to same act may be launched and continued simultaneously. If certain acts constitute an offence, the criminal proceeding cannot be held up or kept in abeyance till the finalization of the civil proceeding. Therefore the views of the Courts belongs were not correct.

9. What was required from the learned Magistrate, was to see whether the facts stated in the application moved under Section 156(3) constituted commission of any cognizable offence or not. In other words, it was the duty of the Magistrate to see whether or not the facts put forth before him had disclosed that the impugned sale deed was a forged document fabricated by the respondent No.2 for grabbing the waqf property. If it was so, what offence was made out from the facts disclosed. These aspects of the matter have not been given any consideration by the learned Magistrate as well as by the learned Additional Sessions Judge while passing the impugned orders." 6

8.6 In the case of Kamladevi Agarwal v. State of West Bengal and others, AIR 2001 SC 3846(1) the Hon'ble Supreme Court in paragraphs 15, 16 and 17 has held as under : "15. We have already noticed that the nature and scope of civil and criminal proceedings and the standard of proof required in both matters is different and distinct. Whereas in civil proceedings the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting the standard of proof of "beyond reasonable doubt". A Constitution Bench of this Court, dealing with the similar circumstances, in M.S. Sheriff v. State of Madras, AIR 1954 SC 397 held that where civil and criminal cases are pending, precedence shall be given to criminal proceedings. Detailing the reasons for the conclusions, the Court held: "As between the civil and criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S.476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."

16. In the present case we have noticed that before issuance of the process, the Trial Magistrate had recorded the statement of the witnesses for the complainant, perused the record including the opinion of the expert and his deposition and prima facie found that the respondents were guilty for the offence for which the process was issued against them. The High Court rightly did not refer to any of those circumstances but quashed the proceedings only on the ground: "Consideration is and should be whether any criminal proceeding instituted before a court subordinate to this court 7 should be allowed to continue when the very foundation of the criminal case, namely, forgery of document is under scrutiny by this court in a civil proceeding instituted by same person, i.e. the complainant in the criminal case. In my considered view it would not be proper to allow the criminal proceeding to continue when the validity of the document (deed of dissolution is being tested in a civil proceeding before the court. Judicial propriety demands that the course adopted by the Hon'ble Supreme Court in this case of Manju Gupta (supra) and Sardool Singh (supra) should be followed. If such course of action is adopted by this court, that would be in consonance with the expression used in Section 482 of the Code of of Criminal Procedure- "or otherwise to secure the ends of justice." In both the cases referred to above civil suits were pending, where the validity and genuineness of a document was challenged. It was held by the Hon'ble Supreme Court that when the question regarding validity of a document is subjudice in the civil courts, criminal prosecution, on the allegation of the document being forged, cannot be instituted."

17. In view of the preponderance of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different Court even though higher in status and authority, cannot be made a basis for quashing of the proceedings." Relevant paras of the judgment(s) on which the learned counsel

9. for the applicants has placed reliance are as under :- In the case of Indian Oil Corpn. Vs. NEPC India Ltd. and

9.1 others, (2006) 6 SCC 736 :- "13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] this Court observed: (SCC p. 643, para 8) “It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of 8 caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” While no one with a legitimate cause or grievance should be 14. prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may. Re: Point (ii)

18. This takes us to the question whether the allegations made in the complaint, when taken on their face value as true and correct, constitute offences defined under Sections 378, 403, 405, 415 and 425 IPC? Learned counsel for the appellant restricted his submissions only to Sections 405, 415 and 425, thereby fairly conceding that the averments in the complaint do not contain the averments necessary to make out the ingredients of the offence of theft (Section 378) or dishonest misappropriation of property (Section 403). Section 378

19. Section 378 defines theft. It states: “378. Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.” The averments in the complaint clearly show that neither the aircrafts nor their engines were ever in the possession of IOC. It is admitted that they were in the possession of NEPC India at all relevant times. The question of NEPC committing theft of something in its own possession does not arise. The appellant has therefore rightly not pressed the matter with reference to Section 378. Section 403

20. Section 403 deals with the offence of dishonest misappropriation of property. It provides that “whoever dishonestly misappropriates or converts to his own use any movable property”, shall be punished with imprisonment of either description for a term which may extend to 2 years or with fine or both. The basic requirements for attracting the section are: (i) the movable property in question should belong to a person other than the accused; (ii) the accused should wrongly appropriate or convert such property to his own use; and (iii) there should be dishonest intention on the part of the accused. Here again the basic requirement is that the subject-matter of dishonest misappropriation or conversion should be someone else's movable property. When NEPC India owns/possesses the aircraft, it obviously 9 cannot “misappropriate or convert to its own use” such aircraft or parts thereof. Therefore Section 403 is also not attracted. Section 405

21. We will next consider whether the allegations in the complaint make out a case of criminal breach of trust under Section 405 which is extracted below: “405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes 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, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits ‘criminal breach of trust’.”

22. A careful reading of the section shows that a criminal breach of trust involves the following ingredients: (a) a person should have been entrusted with property, or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. The following are examples (which include the illustrations under Section 405) where there is “entrustment”: (i) An “executor” of a will, with reference to the estate of the deceased bequeathed to legatees. (ii) A “guardian” with reference to a property of a minor or person of unsound mind. (iii) A “trustee” holding a property in trust, with reference to the beneficiary. (iv) A “warehouse keeper” with reference to the goods stored by a depositor. (v) A carrier with reference to goods entrusted for transport belonging to the consignor/consignee. (vi) A servant or agent with reference to the property of the master or principal. (vii) A pledgee with reference to the goods pledged by the owner/borrower. (viii) A debtor, with reference to a property held in trust on behalf of the creditor in whose favour he has executed a deed of pledge-cum- trust. (Under such a deed, the owner pledges his movable property, generally vehicle/machinery to the creditor, thereby delivering possession of the movable property to the creditor and the creditor in turn delivers back the pledged movable property to the debtor, to be held in trust and operated by the debtor.) 10