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M/S Zee Telfilms Ltd. And Others vs State Of U.P. And Another on 11 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 34

Case :- APPLICATION U/S 482 No. – 2597 of 2001

Applicant :- M/S Zee Telfilms Ltd. And Others

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Raj Kumar Khanna

Counsel for Opposite Party :- Govt. Advocate,K.D. Tiwari

Hon’ble Sudhir Agarwal,J.

1. Heard Sri Raj Kumar Khanna, learned counsel for applicants and learned A.G.A. for State-respondent.

2. This application under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as “SectionCr.P.C.”) has been filed by applicants seeking quashing of impugned order dated 16.02.2001 passed by Xth Additional Sessions Judge, Moradabad in Criminal Revision No.311 of 1998 and also to quash entire proceedings of Complaint Case No.227/9 of 1998 pending in Court of II Additional Chief Judicial Magistrate, Moradabad under Section 406 IPC.

3. Complaint was filed by Dr. Dinesh Mohan before Police Station Civil Lines, Moradabad bearing No.2627 of 1998 against applicants stating that he had purchased shares of accused-Company i.e. M/S Zee Telfilms Ltd. through M/s R. K. Investment Consultants, Moradabad on 01.01.1994 and sent his shares for transfer of Company. Company after receiving the same had transferred 200 shares and 100 shares were not sent i.e. bearing Distt. No.10040101-12, hence it has committed offence under Section 406 IPC. Magistrate finding that the factum that 100 shares were not found returned by accused-Company, it does not constitute an offence under Section 406 IPC, vide order dated 26.08.1998 dismissed the complaint under Section 203 Cr.P.C. Respondent-2 preferred criminal revision which has been allowed vide order dated 16.02.2001 by Additional District Judge X, Moradabad and Magistrate has been directed to summon accused-applicants under Section 406/Section420 IPC.

4. I have gone through entire complaint and find that complaint was filed on following allegations :

“1. That the complaint is a practising Doctor at Moradabad and the accused no.1 is a Public Limited Company and accused no.2 and 3 are its Chief Executives and manage its affair.

2. That the Complainant had purchased 300 shares of the accused Company 1.1.1994 though M/s R. K. Investment Consultants, Moradabad, details of which are given below.

Distt. No. Quantity

11476201 -300 100

10856501 -600 100

10040101 -200 100

3. That the aforesaid shares were partly paid up and Rs.15/- were to be paid for each share as balance and final call money.

4. That the complainant sent the accused Company Certificates for transfer to his name on 3.1.94. He also sent a draft of Rs.4,500/- drawn on State Bank of India, Bombay favouring “ZIL-Allotment Money” being the balance and final call money on the aforesaid 300 shares. These three share certificates along with three transfer deeds and one bank draft for Rs.4500/- as aforesaid were sent to the accused company under one Registered Cover on 3.1.1994.

5. That the accused received all the aforesaid documents and encashed the aforesaid bank draft also.

6. That on 25.8.94 the accused sent back two share certificates for 10 shares each after endorsing final call money payment and transferring the said shares to the complainant’s name. These two shares certificates were sent under two registered covers both dated 25.8.94. The distinctive numbers of the shares so sent back to the complainant are as follows :-

11476201-300

10856501-600

7. That strangely enough the Share Certificate regarding distinctive Numbers 10040101-200 was not sent to the complainant.

8. That the complainant wrote the accused several letters asking them to send back the aforesaid remaining Share Certificate duly endorsed as fully paid endorsed as fully paid up and transferred to the complainant’s name but till date the accused have not sent the aforesaid shares certificate.

9. That the aforesaid shares are a saleable commodity having a value of approximately Rs.50,000/-.

10. That it is apparent that the accused have embezzled the aforesaid shares having dishonestly misappropriated the same since the shares were under their dominion being entrusted to them for endorsement of final payment and transfer.

11. That under law the accused are duty bound to return the aforesaid share certificate duly endorsed as full paid up and transferred to the complainant.”

5. Section 406 IPC provides punishment for “criminal breach of trust” which may be imprisonment for a term upto three years with fine or with both. The term “criminal breach of trust” is defined in Section 405 IPC, which reads as under:

“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.

Explanation 1.–A person, being an employer of an estab­lishment whether exempted under Section 17 of the Employees’ Provident Funds and SectionMiscellaneous Provisions Act, 1952 (19 of 1952), or not, who deducts the employee’s contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.

Explanation 2.–A person, being an employer, who deducts the employees’ contribution from the wages payable to the employee for credit to the Employees’ State Insurance Fund held and admin­istered by the Employees’ State Insurance Corporation established under the Employees’ SectionState Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.”

6. The necessary ingredients to attract offence of “criminal breach of trust”, are:

(A) entrustment to any person with property or with any dominion over property;

(B) the person entrusted:

(i) dishonestly misappropriated or converts to his own use of that property;

(ii) dishonestly used or disposed of that property or wilfully suffers any person so to do in violation–

(a) of any direction of law prescribing the mode to which such trust is to be discharged;

(b) of any legal contract made touching the discharge of such trust.

7. Learned A.G.A. appearing for respondent-State despite repeated query could not show that aforesaid complaint discloses an offence under Section 406 IPC.

8. When I examine the facts of this case in the light of above discussion, I do not find that allegations contained therein satisfy ingredients of aforesaid offences under Sections 406 IPC.

9. The application is allowed. The order dated 16.02.2001 passed by Xth Additional Sessions Judge, Moradabad in Criminal Revision No.311 of 1998 as well as entire proceedings of Criminal Complaint Case No.2627 of 1998 under Section 406 IPC pending before IInd Additional Chief Judicial Magistrate, Moradabad are hereby quashed.

Order Date : 11.11.2019

Manish Himwan

 

 

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