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2018 (11) TMI 1846 - SC - Indian LawsWrongful retention of amount - commission of offence punishable Under Section 406 by not returning the amount of Rs. One Crore advanced by the Respondent No. 2 - HELD THAT:- There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High court can exercise jurisdiction Under Section 482 of Code of Criminal Procedure even when the discharge application is pending with the trial court. Fraudulent transfer of property - criminal breach of trust or not - HELD THAT:- This charge is wholly untenable and rather extraordinary since the alleged fraudulent transfer of property by the Appellant No. 1 to his wife, assuming it to be illegal, by no stretch of imagination can constitute the offence of a criminal breach of trust, since the property was not entrusted by the Respondent No. 2 to the Appellants. The property belonged to Appellant No. 1 and there was therefore no question of Appellants having been entrusted with their own property, and that too by the complainant, who had merely entered into a development agreement in respect of the property. Whether an offence Under Section 406 made out? - HELD THAT:- It is not possible to hold that the amount of Rs. One crore which was paid along with the development agreement as a deposit can be said to have been entrustment of property which has been dishonestly converted to his own use or disposed of in violation of any direction of law or contract by the Appellant. The Appellants have not used the amount nor misappropriated it contrary to any direction of law or contract which prescribes how the amount has to be dealt with - there is a security deposit of Rs. One Crore and that he has misappropriated the dispute between the two parties can only be a civil dispute. There are no no hesitation in quashing the FIR and the charge sheet filed against the Appellants - appeal allowed.
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