Dishonest use or disposal of entrusted property is essential for constituting an offense under Section 406 of IPC.

ORDER :

1. The petitioner herein is the accused in C.C. No. 146 of 2022 on the files of the Judicial First Class Magistrate Court, Angamaly. The aforesaid case has arisen from Crime No. 1003 of 2021 of the Nedumbassery Police Station registered based on information furnished by the 2nd respondent. The offense alleged is under Section 406 of the IPC.

2. The prosecution allegation is as under:

The petitioner, a headload worker in the Air Cargo Section of the Cochin International Airport Ltd. (CIAL), was also the Secretary of the CIAL Air Cargo Loading and Unloading Workers Union. He is alleged to have approached the complainant and other workers and convinced them that CIAL had challenged the Government order granting permanence to the employment of the workers in court. He is alleged to have apprised them that a lawyer would be needed to fight the case and that the workers would have to pay their share of the legal fees when they received the benefits. As security, he obtained blank signed cheques from the complainant and others. When the cheques were demanded back, he refused to return them. This prompted the complainant to file a police complaint, and a case was registered. After the investigation, a final report was filed in court.

3. Sri. Ashkar, the learned counsel appearing for the petitioner, submitted that to attract the offense under Section 406 of the IPC, in addition to the entrustment of the property, it needs to be shown that the accused had misappropriated or converted the same to his own use. It is submitted that the cheque was retained by the petitioner in pursuance to the decision taken by the General Body of the Union. The complainant has no case that the cheque was presented or the proceeds misappropriated by either the petitioner or the Union. In order to substantiate his contention, profuse reliance is placed by the learned counsel to the law laid down by the Apex Court in Suryalakshmi Cotton Industries Ltd. vs. Rajvir Industries Ltd. and Others, 2008 (1) KHC 337.

4. I have heard the learned counsel appearing for the party respondent and the learned public prosecutor.

5. A reading of the allegations in the complaint would disclose that the petitioner herein is the Secretary of a labor Union in which the informant is a member. Annexure-A6 minutes of the Annual General Body meeting of the Union would reveal that the executive committee of the Union took a decision to collect blank cheques from each of the employees for discharging the fees to their lawyer as and when the litigation pending before various courts attain fruition. We are not concerned in this petition as regards the legality of the decision taken by the Union. It is in terms of the decision taken by the Union that several members of the Society had handed over cheques to the petitioner. It is interesting to note that the party respondent was the president of the Union, and his statement would disclose that he had also collected cheques from various members and had entrusted the same to the petitioner in terms of the collective decision taken by them. Annexure-A9 discloses that the executive committee, based on grievances expressed by the members of the Union, had taken a decision to return the cheques after getting a signed undertaking that the worker will not have any claim in the benefits which are received due to the contributory efforts of the Union. Annexure-A10 minutes would also disclose that the cheques of 27 workers were returned to the respective workers. The cheque issued by the 2nd respondent has been seized by the police, and the same has been produced before court.

6. In light of the above fact scenario, the question is whether Section 406 of the IPC would be attracted in the facts of the instant case. Section 405 of IPC defines Criminal Breach of Trust which reads as under:

“405. Criminal breach of trust - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to h