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HIGH COURT OF DELHI
SANJEEV KAKAR ..... Petitioner
Through: Mr. Navesh Kaushik, Mr. Manoj Joshi, Mr. Anand Singh and Ms. Shikha John, Advocates
Through: Mr. Satish Kumar, APP for State with Insp. Prakash
Chand, P.S. Kalkaji.
Mr. Satya Narayan Vashishth, Advocate for R-2.
JUDGMENT
1. The petitioner has filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 („Cr.P.C.‟) seeking quashing of FIR bearing no. 368/2022, registered at Police Station Kalkaji, South East, Delhi for the offence punishable under Section 406 of the Indian Penal Code, 1860 („IPC‟)
2. The brief facts of the present case are that on 02.03.2022, complainant Mr. Sandeep Behl, who is Director and Shareholder of Printland Digital (India) Private Limited (‘the company’), filed a complaint with police that the petitioner was appointed as an Additional Director on 28.05.2012 in the said company. On 03.04.2016, the company had purchased a car i.e., Creta 1.[6] CRDi Auto SX+ Sleek Silver from Koncept Cars India Pvt. Ltd for official purpose. The company had availed loan facility of an amount of Rs.12,60,000/- from ICICI Bank and for smooth functioning of the company, the management of the company had decided to entrust the said car to the petitioner herein. It is further stated that on 22.02.2019, the petitioner had resigned from the directorship of the company. The authorized representative, being one of the directors of the company, while accepting the resignation of the petitioner had requested him to return the car no. DL 12CJ 6451 and other properties given to him at the time of appointment, but he had not returned the same despite various requests and reminders. It was further alleged that the company was forced to send an email to the petitioner for return of car and other properties of the company but he had neither replied nor returned the car and other valuable articles of the company. The company had already paid the entire loan amount to the bank. It is further alleged that the petitioner had misappropriated the car and other valuable properties of the company. On the basis of the complaint, present FIR was registered against the petitioner.
3. Learned counsel for the petitioner states that the facts mentioned in the present case do not make out a prima facie case against the petitioner for having dishonestly misappropriated the property of company. It is stated by the counsel for petitioner that the impugned FIR has been filed maliciously by the complainant with an ulterior motive for wreaking vengeance; moreover, petitioner is having a civil litigation with the company. It is further stated that the petitioner has been constrained to retain the vehicle and is justified in law to do it, since the complainant is unlawfully withholding the amount of salary of the son of petitioner and has misappropriated the same. Hence, it has been prayed that FIR be quashed.
4. Per contra, learned APP for the State submits that no valid grounds have been made out for quashing of FIR by the petitioner and a cognizable offence is made out against him.
5. I have heard the rival submissions on behalf of both the parties as well as perused the material on record.
6. Since the petitioner herein has approached this Court seeking quashing of FIR which stands registered against him, it will be appropriate to first refer to and consider the principles governing quashing of FIRs.
7. The Hon‟ble Supreme Court has laid down the guidelines for quashing of FIR in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. 1992 SCC (Crl) 426, which are extracted herein-under:
9. In Deepak Gaba and Ors. State of Uttar Pradesh, 2023 SCC Online SC 3, the law with regard to criminal breach of trust was explained as under by the Hon‟ble Apex Court: “13. Section 406 of the IPC prescribes punishment for breach of trust which may extend to three years or with fine or with both, when ingredients of Section 405 of the IPC are satisfied. For Section 406 of the IPC to get attracted, there must be criminal breach of trust in terms of Section 405 of the IPC.
14. For Section 405 of the IPC to be attracted, the following have to be established: (a) the accused was entrusted with property, or entrusted with dominion over property; (b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and
(c) 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.
15. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust”.
10. Learned counsel for petitioner has mainly contended that there was some amount which was due towards petitioner from the side of complainant and that amount has been provided in tabular form as Annexure P/2. However, even if it is presumed that some amount was due towards the petitioner from the side of complainant, it did not give him the right to keep in his custody, the car in question and to refuse to return the same. The attention of this Court has been drawn to the legal notice sent to petitioner and the various reminders as well as messages sent to him for return of car. It is not case of petitioner that the car in question belongs to him or was bought by him. The same was also not registered in his name. Just because there was some amount which was to be paid by complainant to him, it did not give him any right to retain the car in question.
11. In this case, therefore, it is clear that car in question was in possession of petitioner in his capacity as Director. Pursuant to his resignation, petitioner was duty bound to return the car as it was entrusted to him by virtue of his official post in the company. Considering the same at this stage, when the investigation is under way, this Court is not inclined to interfere with the same.
12. Applying the above mentioned principles, the facts would reveal that there is a strong suspicion and indication that prima facie case against the petitioner is made out since the car in question, which did not belong to present petitioner, had been kept by him and he was not returning the same despite legal notices, repeated requests and reminders.
13. Having given thoughtful consideration to the material on record, and considering the relevant principles governing quashing of FIR laid down by the Hon‟ble Apex Court in Bhajan Lal (Supra) which is to be applied in the rarest of the rare cases, and the instant case cannot be held to fall within its ambit. This Court is not persuaded to reach a conclusion that the allegations leveled are absurd, highly improbable and that such incident could not have happened so as to direct quashing of the FIR.
14. In view thereof, this Court does not deem it fit to exercise the discretion of quashing the present FIR.
15. Accordingly, the present petition stands dismissed.
16. The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J MARCH 6, 2023