IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No.M-2534 of 2011 (O&M) Date of Decision: March 08, 2011 Nikhil Talwar. …Petitioner Versus State of Haryana. … Respondent CORAM: HON’BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be Allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. R.S. Rai, Senior Advocate with Ms. Jaishree Thakur and Mr. Shailash Suman, Advocates, for the petitioner. Mr. Gaurav Dhir, D.A.G., Haryana, for the respondent-State. Mr. Kanwaljit Singh, Senior Advocate with Mr. Rohit Khanna, Advocate, for the complainant. Alok Singh, J. (Oral) This is a petition seeking anticipatory bail in case F.I.R. No. 271 dated 23.10.2010, under Sections 405 / 406 / 408 / 415 / 420 IPC, registered at Police Station Sector 31, Faridabad, District Faridabad. Crl. Misc. No.M-2534 of 2011 Mr. R.S. Rai, learned Senior Advocate for the petitioner, assisted by Ms. Jaishree Thakur, Advocate, has vehemently argued that as per the contents of the FIR, petitioner was working with the Company and his services were terminated by the Company on 31.10.2009 and after termination of the services, petitioner is alleged to have misappropriated the properties of the Company which were given to the petitioner as an employee of the Company. Learned Senior counsel has further argued that as to whether services of the petitioner-accused were terminated is the question subjudice before the Company Law Board, as well as, before this Court in a company petition, hence, there can not be any mala fide intention to misappropriate the properties. Learned senior counsel for the petitioner has further argued that if there is no mala fide or ulterior motive to misappropriate the properties which were given while petitioner was in employment, no offence under Section 406 or 420 IPC can be said having been made out against the accused. Mr. Kanwaljit Singh, Senior Advocate, for the complainant, assisted by Mr. Rohit Khanna, Advocate, has vehemently argued that till termination is revoked, petitioner has absolutely no legal right to use the cars given to him as an employee of the Company. Mr. Kanwaljit Singh, Senior Advocate, has further argued that if accused is using cars 2 Crl. Misc. No.M-2534 of 2011 given to him illegally, then case falls within the four corners of Section 405 IPC and would amount to criminal breach of trust. He further argues that since cars are being retained with intention to cause wrongful loss to the Company, hence, case is also covered within the four corners of Section 415 I.P.C. 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/petitioner have been rightly terminated, is still subjudice before the Company Law Board, as well as, before this Court in a Company Petition, therefore, at this juncture it cannot be said that services of the accused/petitioner were rightly terminated and after the termination of the services, he is dis-honestly using cars in violation of the termination order. This Court in the matter of Arun Kapoor vs. State of Haryana, decided on 20.01.2011, in the almost similar facts, has held as under:- “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 3 Crl. Misc. No.M-2534 of 2011 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.” This Court vide order dated 27.01.2011 has granted interim bail to the petitioner. Mr. Gaurav Dhir, learned Deputy Advocate General, Haryana, under instructions of ASI Satbir Singh, has stated that petitioner has joined the investigation and has already been enlarged on bail pursuant to the directions issued by this Court dated 27.01.2011. Mr. Dhir, on the instructions of ASI Satbir Singh, has further stated that custodial interrogation is required to recover the cars from the possession of the petitioner-accused. Petitioner is not denying possession of the cars. As to whether petitioner is bound to return the cars during the pendency of termination issue before this Court, as well as, before the Company Law Board can only be decided by the Company Law Board or by this Court in the pending Company Petition. Without expressing any opinion on the merit of the case, present petition is allowed. Order dated 27.01.2011 is made absolute, subject to the limitations provided under 4 Crl. Misc. No.M-2534 of 2011 Section 438(2) of the Code. Petitioner-accused shall participate in the investigation as and when he is required. March 08, 2011 ( Alok Singh ) vkd Judge 5