Mere retention of property is not enough to constitute criminal breach of trust. The prosecution must prove dishonest misappropriation or conversion of the property.

DASH, J.

( 1 ) BEING aggrieved by the order of dismissal of his complaint under S. 203 of the Code of Criminal Procedure, 1973 (for short 'the Code'), the petitioner has filed this revision.

( 2 ) THE petitioner is M/s. Rourkela Construction Private Ltd. , which manufactures and carries on business in various machanical equipments and spares including Tanks, vessels, stack at Rourkala and it is represented by its manager and principal officer Sri Abhinna Chandra Mohanty, whereas the opposite party is the manager/principal officer of M/s. Assam Bengal Roadways Ltd. , a transport company, having its registered office at Calcutta and branch office at Rourkela. The petitioner-company having received order from M/s. Krishak Bharati Co-operative Ltd. , Surat for supply of certain materials by their letter dated 16-9-1987, entered into a contract with the opposite party in which it was decided that the latter would transport the goods from the petitioner's godown at Rourkela to Surat at the rate of Rs. 8,015/- per trip. On the basis of such contract, the petitioner-company was delivering consignments to the opposite party who, in his turn, was transporting the same to Surat. The transportation charges used to be paid to the opposite party on his submission of the copy of the consignments note duly signed and acknowledged by the consignee at Surat along with the bills. As usual, on 28-1-1988 the opposite party took delivery of Stock No. 39/st-2/a/b under two consignment notes bearing Nos. 438573 and 438574 both dated 18-1-1988 and loaded the same separately in two trucks and similarly on 29-1-1988 and 1-2-1988 he took delivery of further parts of Stock No. 39/st-2/a/b respectively under consignment Notes Nos. 438578 and 438588. Excepting the goods delivered to the opposite party under consignment note No. 438573 dated 28-1-1988, the other consignments were delivered to the consignee at Surat and the three consignment receipts delivered to the petitioner-company on 19-2-1988 and 29-2-1988, but no consignment receipt in respect of consignment note No. 438573 dated 28-1-1988 was delivered to the petitioner-company for a long time for which correspondences were made to the opposite party who kept quiet. The petitioner-company, however, came to know on 1-6-1988 that the goods under the aforesaid consignment note had not been delivered to the consignee when a copy of the letter claiming compensation from the opposite party by the consignee was received. On 3-6-1988, the opposite party laid a claim of Rs. 1,15,000/- towards arrear freight charges and intimated the petitioner-company that the aforesaid consignment had been detained for non-payment of the arrear freight charges. Thereafter, when the petitioner-company made correspondences with the head office of the opposite party at Calcutta a reply was received that the consignment had been detained and that unless a sum of Rs. 97,370/- towards arrear freight charges was paid the consignment detained would be sold for realisation of the arrear freight charges. According to the petitioner-company, the claim of the opposite party was totally false and accordingly a complaint case in I. C. C. Case No. 29 of 1988 was filed in the court of the S. D. J. M. , Panposh at Uditnagar alleging that for illegal detention of the consignment the opposite party had committed the offence of criminal breach of trust under S. 406, I. P. C. The learned S. D. J. M. examined the petitioner under S. 200 of the Code and, by order dated 3-8-1988, dismissed the complaint under S. 203 of the Code with the observation that since there was claim and counter-claim between the parties the case was of civil nature.

( 3 ) SHRI B. K. Nayak, the learned counsel for the petitioner has contended that since the opposite party had admitted about entrustment of the consignment to him and also about the non-delivery of the consignment to the consignee, it has to be held prima facie that he has committed the offence of criminal b