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2021 (11) TMI 293 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - offence of criminal breach of trust - delay of more than one year in lodging the FIR or not - fulfilment of ingredients of Sections 406 and 420 of the IPC, to enable the Learned Trial Court to accordingly convict the Respondent No.1 - reversal of order of Conviction, correct or not - HELD THAT:- Admittedly, “entrustment” has been established in the matter at hand, yet it is trite to state that mere “entrustment” cannot constitute the offence under Section 405 of the IPC. To establish an offence under this Section, the fact of entrustment of the property as well as any or more of the ingredients detailed above have to be established by the Prosecution, the gist being a dishonest intention on the part of the Accused. The burden of proving such dishonest intention is on the Prosecution, which can justifiably be inferred from the attending circumstances, the conduct of the Accused and steps taken by him - It was the duty of the Prosecution to have investigated as to whether there was a Chairman of the Indian Chamber of Commerce and not taken the Statement of P.W.14 as gospel truth, based on Exhibit 23, the response of P.W.14. Further, no Witness was ever produced from the Syndicate Finance Pvt. Ltd. to prove that the Respondent No.1 had ever deposited or not deposited any amount by way of Promoter’s Capital Contribution and no investigation appears to have been conducted on this aspect. The onus would shift on the Respondent No.1 only if the Prosecution had conducted investigation as to whether the money taken by the Respondent No.1 had been deposited and on concluding that no amount was deposited by the Respondent No.1 in any of the Financial Institutions mentioned above, the onus would fall on the Respondent No.1 to prove how he had misappropriated the amount. The Prosecution cannot shirk its burden of proving its case beyond a reasonable doubt nor foist such responsibility on the Accused. Hence, the ingredients of Section 405 of the IPC, have clearly not been established. The entire matter of the Appellant appears to pivot around the dishonouring of the Cheque Exhibit 15, for a sum of ₹ 10,00,000/- only, issued by the Respondent No.1 to the Appellant on 30.12.2014, on the ground of insufficiency of funds in the Account of the Respondent No.1 pursuant to which, he lodged the FIR Exhibit 16. It is worth noting that Exhibit 1 was executed between the parties and mere breach of the terms of Exhibit 1 ipso facto does not constitute the offence either of Criminal breach of trust as provided under Section 405 of the IPC or of cheating under Section 420 of the IPC nor is mens rea deducible. It is clear that the Prosecution has failed to establish the ingredients of Sections 405 and 420 of the IPC and inevitably, in the absence of any such evidence, the Learned Trial Court could not have convicted the Respondent No.1 - no error arises in the findings of the Learned First Appellate Court, which has correctly reversed the order of Conviction of the Learned Trial Court. Appeal dismissed.
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