CRR No.2877 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.2877 of 2009 (O&M) Date of decision: 20.01.2011 Arun Kapoor ....Petitioner Versus State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. Bipan Ghai, Sr. Advocate, with Mr. Sandeep Gehlawat, Advocate, for the petitioner. Mr. S. K. Hooda, Addl. A.G., Haryana. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ALOK SINGH, J (ORAL) Accused/revisionist has invoked the revisional jurisdiction of this Court, challenging the order dated 1.9.2009 passed by Additional Chief Judicial Magistrate, Sonepat, refusing to discharge the revisionist as well as framing the charges against the accused/revisionist under Section 406 of the Indian Penal Code. The brief facts of the present case, as per the complainant story, accused was employed with the company of the complainant i.e. Atlas Cycle Haryana Ltd. as Addl. Joint President (works) and his services were terminated by the company pursuant to the resolution passed by the Board of Directors of the company on 18.4.2002; five cars i.e. (i) Esteem bearing registration No.DL-2CJ-5327, (ii) Cielo bearing registration No.HR-14A-0011, (iii) Honda City bearing registration No.DL-2CM-5158, (iv) Cielo bearing registration No.HR-05H-0068 and (v) Ford Ikon, A/F, were given to the accused by the company as Addl. CRR No.2877 of 2009 (O&M) -2- Joint President (works); after the termination of the services of the accused, he was asked to handover the possession of the abovesaid vehicles to the company with immediate effect; several reminders were also sent to the accused, however, despite of service of the letters and reminders, accused failed to handover possession of the cars of the company and thereafter a legal notice was also served on the accused asking to return the vehicles, however, accused did not return, hence a complaint was filed before the learned Magistrate pursuant to which FIR No.21 dated 1.2.2003 under Sections 406, 419 and 420 of the Indian Penal Code was registered. After the investigation, challan was submitted before the Court. Accused/petitioner has alleged before the learned Magistrate that accused being son of Sh. B.D. Kapoor and grandson of Sh. Janki Dass Kapoor, who started Atlas Cycle Industries Ltd., is the largest sharehoder of the said company; due to the family fued inter se between the family members, who control M/s Atlas Cycle Industries Limited, false FIR has been got registered against the revisionist. It is further alleged by the accused before the learned Magistrate that accused has challenged the said resolution dated 18.4.2002 before the Civil Court, which is pending. It has further been alleged before the learned Magistrate that since dispute between the shareholders of the company is of the civil nature and alleged removal/resolution is under challenge before the Civil Court, hence no offence can be said having been committed by the accused under Sections 406/420 of the Indian Penal Code. Learned Magistrate did not agree with the contentions of the CRR No.2877 of 2009 (O&M) -3- revisionist/accused and has declined to discharge the accused and has framed charges against the accused to face trial under Section 406 IPC. I have heard the learned counsel for the petitioner as well as Mr. S.K. Hooda, learned Additional Advocate General, Haryana. Undisputedly, petitioner was working as Addl. Joint President (works) in the company and was given five cars mentioned hereinabove. Undisputedly, revisionist/accused has challenged the alleged resolution dated 18.4.2002, whereby services of the revisionist/accused were said to be terminated. Undisputedly, civil suit, challenging the resolution dated 18.4.2002, is still pending. In the opinion of this Court, it seems that in the present case civil dispute has been given the colour of criminal offence. The question as to whether services of the accused/revisionist have been rightly terminated pursuant to the alleged resolution dated 18.4.2002, is still sub judice before the competent Civil Court, therefore, at this juncture it cannot be said that services of the accused/revisionist were rightly terminated pursuant to the alleged resolution dated 18.4.2002 and after the termination of the services he is dis-honestly using cars in violation of the termination order. Hon'ble Apex Court in the matter of Dhariwal Tobacco Products Limited Vs. State of Maharastra, 2009(2) SCC 370 in para 10 having relied upon earlier judgment of the Hon'ble Apex Court in G. Sagar Suri Vs. State of U.P., 2000(2) SCC 636 has held as under: - “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 caution. For the accused it is a serious matter.” CRR No.2877 of 2009 (O&M) -4- In the opinion of this Court, to constitute an offence under Section 406 IPC, dis-honest intention to mis-use the property entrusted to the accused is sine qua non. If accused is in the bona fide belief that his services have not been legally terminated and question of termination is pending before the competent Civil Court, then alleged dis-honest intention cannot be inferred. In the humble opinion of this Court, even prima facie offence of criminal breach of trust as defined under Section 405 IPC is not made out in the absence of dis-honest intention/mens rea on the part of the accused. In the opinion of this Court, accused can be asked to face trial under Section 406 IPC when Court is prima facie satisfied that there was a mens rea/dis-honest intention on the part of the accused to mis- appropriate or mis-use the property entrusted to him during the course of his employment and not when his alleged termination is sub judice before the competent Court. Hon'ble Apex Court in the matter of Jagdish Chandra Nijhawan Vs. S.K. Saraf, AIR 1999 Supreme Court 217 has found discharge of the accused under Section 406 IPC justified and legal in view of the fact that civil dispute has been given colour of criminal offence. Consequently, present petition is allowed. Impugned orders are quashed. Petitioner/accused stands discharged in the present case. (Alok Singh) Judge January 20, 2011 R.S.