RAJENDRA SINGH LODHA Vs. ARBINDO DEY

JUDGEMENT

(1.) The instant application under Section 401 read with Section 482 Cr. P.C. the accused petitioners Nos. 1 and 2 of the complaint case no. C-860 of 1991 pending before the court of Chief Metropolitan Magistrate, Calcutta, have prayed for quashing the said proceeding.

(2.) Mr. Balai Chandra Roy, ld. Counsel appearing for the petitioners contended that the petition of complaint that has given rise to the impugned proceeding does not in essence disclose any offence under Section 409 of IPC. The subject matter of the alleged entrustment is said to be a fund of Alfred Herbert Executive Staff Superannuation Fund created by the Alfred Herbert (India) Ltd., a Company under which the complainant worked as an Executive Director, Sales and Marketing. According to the petition of complaint, the complainant became entitled to have the benefit of that fund amounting to the tune of Rs. 3 lacs on his resignation from the Company which the Company accepted by his letter dated 22-1-87. It is the complainant's own case that the said fund was solely constituted by the contributions that were made by the Company itself from time to time in accordance with the rules framed by the Company itself. It is also the complainant's case that the said money would become payable to the complainant only on the happening of certain contingencies. There is a controversy between the parties with regard to the question as to whether contingencies on the happening of which the money would become payable to the complainant did actually happen or not.

(3.) Mr. Roy assailed the legality of the prosecution solely on the ground that the essential element of an offence punishable under Section 409, I.P.C., namely, entrustment is lacking in the instant case. From the petition of complainant it does not transpire that the concerned fund did ever vest in the complainant himself. Rather it is clear from the petition of complaint that it was the Company which continued to be the owner of the said fund. The exact connotation of the expression "entrustment" as used in Sections 405 to 409 of the I.P.C. has been settled by the several decisions of the Supreme Court in Jaswantrai Manilal v. State of Bombay, AIR 1956 SC 575 : (1956 Cri LJ 1116) and State of Gujrat v. Jaswantlal Nathalal, AIR 1968 SC 700 : (1968 Cri LJ 803). According to the said decisions, "entrustment" contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain event. The person who transfers possession of the property to the second party still remains the legal owner of the property and the person in whose favour possession is so transferred has only the custody of the property to be kept or disposed of by him for the benefit of the other party. The expression 'entrustment' also carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner.