The main legal point established in the judgment is the requirement of entrustment of property and dishonest misappropriation for a charge under Section 406 IPC, as well as the distinction between civil disputes and criminal offenses.

JUDGMENT :

Pankaj Bhatia, J.

The present petition has been filed seeking the quashing of the Complaint Case No.59 of 2011 (Venkateshwar Singh, Venkat Vs. Bid & Hammer Fine Art Auctioners (P) Ltd. & its Chairman/M.D. and another) under Section 406 IPC, Police Station Aliganj, Lucknow, pending in the Court Additional Chief Judicial Magistrate/J.M. (J.D.) Court no.35, Lucknow and also the order dated 8.1.2016 passed by Additional District Judge, Court No.10, Lucknow in Criminal Revision No.47 of 2015 (Annexure No.1 to the writ petition) as well as the summoning order dated 29.4.2011 summoning the petitioners under Section 406 IPC in Complaint Case No.59 of 2011 (Annexure No.3 to the writ petition).

2. The facts leading to the filing of the present petition are as under:-

The respondent no.2 filed a complaint purporting to be under Section 200 Cr.P.C. alleging that the respondent no.2 and his wife Madhavi Singh were appointed as consultant with effect from 26.2.2010 is on record which consultant by the petitioners on 18.2.2010 and in the agreement all the conditions were detailed. The order/agreement appointing the respondent no.2 as shows that the petitioners appointed the respondent no.2 as a consultant for a period of two years with effect form 18.2.2010. The functions to be performed by the respondent no.2 were as under:-

“Your Role and Function in B & H are:-

(I) Providing expertise and experience in Indian art for due diligence and valuations of ail types on art objects especially contemporary art,

(II) Giving your views on the Provenance Provided by clients,

(III) Advice and input on status of paintings and works of art etc.,

(IV) Provide assistance and inputs for sourcing art including travel to other cities etc. on a case to case basis subject to your availability and mutual consent,

(V) You would offer maximum of 15 days per auction spread over 2-3 visits, wherein you would either visit Bangalore or travel to other cities to meet customers to view their art objects for valuation and discussions with them. Tentative travel schedule would be intimated one week in advance;

(VI) Provided your expertise as and when required on other days over email, telephone.”

In lieu of the services to be provided by the Consultant the respondent no.2 was to be compensated by the following benefits arising out of the said agreement:-

“Your Compensation Package would be as follows:

(i) You will be provided with return fare by Air or AC II Tire by B & H.

(ii) You would be provided boarding and lodging by B & H in Company Guest House, appropriate first class clubs or any Star Hotels.

(iii) You would be reimbursed Rs. 15,000/-per day or part of day towards professional charges. With a minimum of 0.2% of the average value of total lot per auction.

(iv) Travel time compensation would be Rs. 15,000/-per day or part of day (excluding 8.00 p.m. -8.00 a.m.). In addition all other boarding and lodging expenses would be met by us as mentioned under items 3 & 4 of terms.

(v) You will be paid Rs. 750/- per query through phone or email.

(vi) Based upon the performance of the Company and on appraisal of your contributions during the first year of engagement, your compensation package could be structured suitably.

(vii) An appropriate incentive structure which will enable you to buy enquiry of the Company at favourable prices or ESOPS will be formulated and implemented during the second year in order to enable a long term relationship between you and the Company.

(viii) You would also be eligible to an incentive varying between 1.5% to 3% on value of concluded transactions for introducing vendors or buyers.”

3. In the complaint filed by the respondent no.2 it was stated that in terms of the said agreement the respondents performed their functions, however, the said agreement was terminated vide letter dated 28.9.2010 in exercise of the option available to the petitioners under clause 4(xi) which is as under:-

“Both Bid and Hammer and you can terminate this engagement by providing