S. No. 110 Suppl list IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM(M) 515/2023 SHEIKH BEHZAD KHALID …Petitioner/Appellant(s) Through: Mr. M. A. Makhdoomi, Advocate. Vs. SURJEET SINGH ...Respondent(s) Through: Ms. Ahra Syed, Advocate. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R 11.03.2025 (Oral):- 1. The petitioner in the instant petition has invoked the inherent power of this court for quashing complaint titled as “Surjeet Singh v/s Sheikh Behzad Khalid, pending trial before the court of Special Mobile Magistrate PT & E, filed by the respondent herein against the petitioner herein, alleging therein that he, the complainant-respondent herein owns a vehicle (Toyota Fortuner) bearing registration number DL8CZ-6778 and which vehicle along with the documents was kept at the premises of the accused petitioner herein at Srinagar, at the time of outbreak of Covid-19 Pandemic, as the accused petitioner is known to the complainant and assured him that he will take care of the said vehicle, however, the accused-petitioner on demand made by the respondent complainant-respondent herein thereafter did not return the vehicle to the complainant respondent herein, and, in fact turned a deaf ear to the said request and started playing hide and seek in this regard, which generated developed an apprehension in the mind of the complainant- respondent herein that the accused-petitioner may misuse the said vehicle or else sell or dispose of the same without his consent, while stating further therein the complaint that the vehicle in question is hypothecated with HDFC Bank New Delhi, and that the accused- petitioner is taking undue advantage of the complainant-respondent herein being an innocent person and being an outsider and that the complainant-respondent approached the police in this regard, however, police did not take any action against the accused petitioner. The complainant-respondent herein, thus, in the complaint alleged commission of offences under section 420 and 406 IPC by the accused- petitioner herein. 2. It is further submitted by the petitioner that the Magistrate, upon entertaining the complaint referred the same to the police for an inquiry and, consequently upon receipt of a report therefrom in terms of order dated 20th September 2022 found the accused petitioner herein prima facie to have committed an offence under section 406 IPC and, consequently, summoned the accused petitioner. 3. The accused petitioner has maintained the instant petition while challenging the impugned complaint as also the orders dated 20.09.2023 & 21.09.2022, inter alia, on the premise that prior to the filing of the instant petition, the complaint as well as cognizance order came to be challenged by him before 4th Additional Sessions Judge, in a revision petition, however, came to be dismissed, in terms of order dated, 18th July, 2023. 4. It is being further stated by the petitioner that in fact, the vehicle in question has been sold by the complainant-respondent herein to the accused petitioner herein for a consideration of Rs. 22.00 lacs, which stands paid by the accused petitioner, and that upon joining issues in that regard by the complainant-respondent, a civil suit as well came to be filed by the accused petitioner herein against the complainant- respondent herein qua the vehicle in question before Chief Judicial Magistrate, Srinagar, wherein an interim order passed with regard to the custody of the vehicle in question stands confirmed by the said court in terms of order dated 08th October 2022. 5. It is being further stated by the petitioner that an appeal was filed by the complainant-respondent before the court of 4th Additional District Judge, against said order dated 08.10.2022 which appeal, however, came to be dismissed in terms of order dated, 29th May, 2023, followed by the filing of a petition under Article 227 of the constitution by the complainant-respondent herein before this court, which too came to be dismissed, and finally, a Special Leave Petition filed by the complainant-respondent before the Apex Court thereof as well, came to be dismissed. 6. 6. It is being further stated that the impugned complaint, based upon which, the Magistrate issued process even does not satisfy the essential ingredients of the offences alleged to have committed by the accused petitioner herein and that the allegations in the complaint are vague, and that the issues involved in the matter essentially are civil in nature, and that the criminal action initiated by the complainant-respondent herein has been instituted without any basis, and in disregard to the transaction of the sale effected qua the vehicle in question. Heard learned counsel for the parties and perused the record. 7. Perusal of the record would tend to show that though the impugned complaint has been filed by the complainant-respondent herein against the accused-petitioner herein alleging therein the offence under section 406, 420 IPC, yet the fact remains that the Magistrate after receiving the report from the police in terms of the impugned order has dropped the offence of 420, and taken cognizance of under Section 406 IPC. 8. Having regard to the case set up by the accused petitioner herein in the instant petition, a reference to the impugned complaint becomes imperative, which accordingly is extracted and reproduced hereunder: I. That the complaint is the real and registered owner of above numbered vehicle. Photocopy of RC is enclosed herewith this complaint as Annexure I. II. That the complainant and accused person are known to each other, the complainant had visited Srinagar during the COVID-19 pandemic along with the above mentioned vehicle, due to some urgency, the complainant had to leave the valley. The complainant in order to reach his office in a swift manner travelled by way of air, leaving behind his vehicle Toyota fortuner with the accused on the assurance that he will keep it in his possession and deliver the same as soon as the travel restrictions due to COVID-19 are over. Accordingly, the complainant handed over the possession of the vehicle to the complainant to the accused along with the documents of the said vehicle. III. That the accused person, even after a long gap and after the restrictions are over, did not bother to deliver that vehicle to the complainant owner. Even though the complainant made several requests to the accused person to return the vehicle but the accused person, turn a deaf air to the same. The accused person has been playing hide and seek in this regard. IV. That the complainant has developed apprehension that the accused person may misuse the said vehicle and may have sold/dispose of the said vehicle without the consent, knowledge and information to the complainant. V. That it is apt to mention here that the complainant put his every effort to trace out the accused and the vehicle, but all in vain . VI. That the vehicle is financed by HDFC Bank at New Delhi and there is presently lying huge amount against the said vehicle. VII. That the accused might considerably damage the vehicle in his illegal, unauthorized and unwarranted custody. VIII. That the accused is taking undue advantage of complainants being an innocent person and being from outside the valley and on the other hand, the accused person is man of muscle and believes in might is right. IX. That the complainant also approached to the police concerned with the complaint against the accused person, but the concerned slept over the matter and did not take any cognizance against the accused person. X. That this complaint is supported by an affidavit duly sworn in by the complaint stop. A bare perusal of the aforesaid contents of the complaint would manifestly reveal that the complainant-respondent herein has specifically averred that he being known to the accused-petitioner upon his visit to Srinagar was compelled to leave the vehicle in question along with documents with the accused-petitioner herein on account of outbreak of COVID-19 pandemic and had to leave the valley by air with an assurance from the accused-petitioner that he will keep the vehicle in his possession and deliver the same to him as soon as the travel restrictions imposed on account of COVID-19 pandemic are over, and that, after the removal of COVID-19 restrictions, the accused-petitioner did not return the vehicle in question to him despite making several requests in this regard, generating an apprehension in his mind that the accused-petitioner may either misuse the said vehicle or else sell or dispose of the same without his consent. 9. Before proceeding further in the matter, it is deemed appropriate to refer to the provisions of Section 405 IPC read with section 406 IPC which sections read 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 willfully suffers any other person so to do, commits "criminal breach of trust." "406. Punishment for criminal breach of trust.— Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." A bare reading of section 405 defining criminal breach of trust would reveal that the offence consists of any one of the four positive acts, namely (i) misappropriation (ii) Conversion (iii) user or (iv) disposal of property while suggesting further that the ingredients of the offence are (a) the accused must have been entrusted with the property or dominion over it and (b) the accused must have misappropriated the property or disposed of that property in violation of such trust. The Apex Court in case titled as “Common Cause, Registered Society vs. Union of India” reported in 1999 (6) SCC page 667 has in regard to the offence of criminal breach of trust held that an offence under section 405 IPC can be said to have committed only when all the ingredients of the offence are found to have been satisfied and that failure to account or breach of contract, however, dishonest, cannot constitute an office of criminal breach of trust. 10. Keeping in mind the aforesaid position of law and coming back to the case in hand, it is an admitted case set up by the complainant-respondent herein in the complaint that the accused petitioner though was entrusted with the vehicle in question along with its documents by him the complainant-respondent herein yet the complainant-respondent has nowhere alleged in the complaint that the accused-petitioner herein either misappropriated or converted or disposed of the vehicle in question without his consent. Instead, what has been alleged and pleaded in the complaint is that the non- return of the vehicle in question by the accused petitioner to the complainant-respondent developed an apprehension in the mind of the complainant-respondent herein that the vehicle in question may be sold/disposed of by the accused petitioner without his consent. The essential ingredient of misappropriation, conversion, or user of the vehicle in question by the accused petitioner having not been alleged by the complainant-respondent in the complaint the offence of criminal breach of trust cannot said to have been made out in the matter. The impugned complaint, thus, is held to be grossly misconceived and cannot, but said to have grossly erred in law in the matter. 11. Resultantly the petition succeeds, as a consequence whereof, the impugned complaint is dismissed and the impugned order quashed. (JAVED IQBAL WANI) JUDGE SRINAGAR 11.03.2025 Hilal Ahmad