The absence of necessary elements for a breach of trust under IPC Section 409 necessitates quashing the summoning order.

Headnote:(A) Criminal Procedure Code, 1973 - Section 482 - Indian Penal Code, 1860 - Section 409 - Quashing of summoning order - Petitioner sought quashing of a summons issued in a breach of trust complaint - Essential ingredients of the offence of breach of trust not established by the evidence - Summoning order set aside for failing to demonstrate the requisite elements of the alleged offence. (Paras 37, 36, 32)

(B) Criminal Law - Burden of Proof - The order of the Magistrate must reflect careful consideration of allegations and supporting evidence - Summoning cannot be a mechanical process without satisfying the prima facie requirements of the offence. (Paras 35, 34)

Facts of the case:
The petitioner, a practicing advocate, was summoned due to allegations of committing criminal breach of trust relating to documents held in escrow for a real estate transaction. Complainant alleged that the petitioner released documents without due compliance, causing monetary loss to the complainant. Petitioner asserted that no evidence of misappropriation existed and that the dispute was civil in nature. (Paras 2-19)

Findings of Court:
The court concluded that the essential elements of criminal breach of trust were absent and that the complainant did not establish a prima facie case against the petitioner. (Paras 37, 36)

Issues: The primary issue was whether the summoning order for breach of trust under Section 409 IPC was justified based on the presented evidence. (Paras 28, 29)

Ratio Decidendi: The court held that the responsibility lies with the complainant to prove allegations in a criminal proceeding and that insufficient evidence had been presented to initiate criminal proceedings against the petitioner. (Paras 30, 31)

Result: Petition allowed; summoning order quashed.

Table of Content
1. factual background of the case. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11)
2. petitioner's arguments against the complaint. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19)
3. respondent's arguments supporting the complaint. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26)
4. court's analysis of the case. (Para 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36)
5. conclusion quashing the complaint. (Para 37 , 38 , 39 , 40)

JUDGMENT

Chandra Dhari Singh, J.

1. The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter "Cr.P.C.") has been filed on behalf of the petitioner seeking following prayer:

"(i) Pass an order allowing present petition and quashing the summoning order dated 27.11.2013, qua the petitioner, issued in complaint case No. 149/1/12 by Ms Purva Sareen, Metropolitan Magistrate-01/south/Saket Court, New Delhi..."

FACTUAL MATRIX

The Brief facts of the case leading to the filing of instant petition are as follows:

2. The Petitioner is a practicing Advocate enrolled with Bar Council of Delhi since 1991 and the Respondent/Complainant is a real estate development company.

3. In 2005, four promoters of complainant company, namely, Rajinder Kumar Jindal, Attar Singh, Kartar Singh and A.P. Singh, jointly promoted V4 Infrastructure Pvt Ltd. (hereinafter "V4"). Prior to incorporation of V4, to avail opportunity to bid commercial plot of land at Karkardooma, all the four referred promoters contributed funds in complainant company and acquired a commercial plot of land at Karkardooma Community Center, Delhi from DDA, which was subsequently developed by V4 in terms of development agreement dated 24th February, 2005.

4. In 2008, certain disputes arose between the promoters and consequently, two of the promoters exited the V4, selling their equity shares to the remaining promoters, that is, Rajinder Kumar Jindal and Attar Singh. Thereafter, Rajinder Kumar Jindal also exited V4 and sold his shares to Attar Singh. Share purchase agreements were drawn up and as part of settlement, part of commercial property located at Plot No. 228, Sector - 9, Dwarka, developed by V4, was agreed to be sold to complainant company for an agreed consideration for which two separate space buyer agreements were executed between the complainant and V4, both dated 7th October, 2009. For execution of the agreements, the petitioner herein was appointed. For the settlement of disputes, two conveyance deeds, one in favour of V4 for property at Karkardooma, as per development agreement dated 24th February, 2005, and another for part of Dwarka property as per space buyer agreements dated 7th October, 2009 by V4 in favour of complainant company, were executed. Both the said entities on verbal request created an escrow account with the petitioner.

5. V4 subsequently agreed to hand over possession letters for Dwarka property in escrow account but same were not deposited due to non-compliance by complainant Company of the agreed terms, though complainant alleged that same were handed over but illegally released by Petitioner herein to Accused no.2 and 3.

6. In 2010, the complainant confirmed the creation of escrow account vide letter dated 23rd July, 2010 and the petitioner admitted the documents mentioned in the referred letter except the possession letters. The documents kept in the escrow account were reconfirmed by the complainant in its letter dated 21st May, 2011.

7. It is the case of the complainant that the accused no. 1, petitioner herein, in collusion with accused no. 2 and 3 made alterations in the space buyers agreement and the petitioner committed breach of trust and made improvements to the determent of the complainant in the documents handed over.

8. The complainant, subsequently, filed police complaint against the petitioner on 5th January, 2011 with Police Station Safdarjung Enclave and before the EOW, Delhi, alleging that despite of receiving entire agreed sale consideration Accused no. 2 and 3, be