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Judgment
S.A. Kader, J.—This is an application to quash the proceedings in C.C. No. 3974 of 1984 on the file of the XVIII Metropolitan
Magistrate, Saidapet, Madras. The accused are the Petitioners herein.
The Respondent has come forward with this criminal prosecution by means of a private complaint before the XVIII Metropolitan Magistrate,
Saidapet, Madras in C.C. No. 3974 of 1984, on the following averments. The Respondent borrowed some money from the Petitioners'' firm and
offered his bus bearing Registration No. MDO 3093 as collateral security and had executed a document in the nature of a hire purchase
agreement. According to the Respondent, collections from this bus and two other buses were directly given to the Petitioners towards the loan. It
is the case of the Respondent that the Petitioners'' firm failed to give credit to the payments made. On the ground that there was default in the
payments of dues, the Respondent''s buses were taken away in October, 1973. The Respondent filed a criminal complaint against the persons,
who took away the buses which ended in discharge. Thereafter, the Respondent filed a suit O.S. No. 1289 of 1975 on the file of the City Civil
Court at Madras for a declaration that the seizure of the buses was illegal, for a mandatory injunction directing the Petitioners to hand over the
buses and for rendition of accounts. The Court had disallowed the reliefs of declaration and mandatory injunction, but decreed the suit for rendition
of accounts. The Petitioners are, therefore, liable to render a true and proper accounts of all the payments received by them towards the loan and
for the income realised from the buses. It is at this stage, the Respondent has come forward with this criminal prosecution for offences under Ss.
406 and 409, I.P.C.
The pith and substance of the complaint is that the Respondent paid to the Petitioners on 12th March, 1971 a sum of Rs. 8,200 under receipt
No 499 and another sum of Rs. 200 on 13th March, 1971 under receipt No. 500 and that the Petitioners failed to give credit to these amounts.
They are, therefore, claimed to have committed criminal breach of trust. It is to quash the proceedings, the Petitioners accused have come forward
with this petition.
Section 405 , I.P.C. defines criminal breach of trust. It runs as follows:
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own
use that properly, 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''.
The first and foremost essential ingredient to constitute an offence of criminal breach of trust is entrustment and whether the accused was
entrusted with property or with any dominion over to the property. The short point for consideration is whether the payments of Rs. 8,200 on 12th
March, 1971 and another sum of Rs. 200 on 13th March, 1971 to the Petitioners, constitute entrustment. It may at once be pointed out that the
relationship between the Petitioner and the Respondent is one of debtor and creditor. The amounts said to have been paid to the accused towards
the debt do not constitute entrustment and the accused cannot be held guilty of criminal breach of trust.
In Hit Narain v. Bed Narain A.I.R 1941 Pat 125 the question was whether any offence u/s 406 can be said to have been committed by the
accused in accepting the sum of Rs. 150 paid towards the debt and retaining it for himself. It was held by the Division Bench that there was no
entrustment of money and the payment was only towards the debt. It is, therefore, clear that when these two payments made to the Petitioners do
not amount to entrustment, but only payments towards the debt, no question of criminal breach of trust arises.
It may also be stated here that when a decree for accounting is passed it is open to the Respondent to plead and prove these payments. Instead
he cannot rush to the criminal court and institute these proceedings for criminal breach of trust.
In view of my finding on the above question, it is needless to go into the question of limitation.
In the result, the petition is allowed and the proceedings are quashed.