IMPORTANT POINT
The court found no basis for criminal breach of trust under Section 406 IPC, deeming the case a civil dispute and quashing the charge-sheet due to mala fide initiation.

JUDGMENT :

Saurabh Shyam Shamshery, J.

1. Heard Sri Mithilesh Kumar Shukla, learned counsel for applicant and Sri Rajiv Chaddha (complainant in person) and Sri Rakesh Kumar Mishra, learned A.G.A. for State.

2. Applicant has approached this Court to quash a charge-sheet dated 28.01.2019 under Section 406 I.P.C, Police Station-Kidwai Nagar, District-Kanpur Nagar (arising out of Case Crime No.344 of 2017), cognizance as well as summoning order dated 08.02.2019 passed in Criminal Case No. 2330 of 2019, pending before the Court of A.C.M.M, Court No.-7, Kanpur Nagar.

3. Facts of present case are unfortunate, that two real brothers are at loggerheads and their relation became so inimical that after death of their father, they are now entangled in present criminal proceeding. The complainant, an Advocate, has alleged that applicant, his elder brother, has committed offence of criminal breach of trust that he has not returned Rs. 2.20 lakh given to him on different dates for his business, but despite earlier repeated assurance of returning it, he after death of their father, refused to return it.

4. The complainant has also alleged that on basis of an alleged Will, applicant has not only opened a joint account with his father but after his death, he withdrew money without his consent. An FIR was lodged by the complainant against his elder brother i.e. applicant for above referred offence on 12.11.2017, wherein after investigation, a charge-sheet was filed on 28.01.2019, for an offence under Section 406 I.P.C., only for allegation that applicant has not returned Rs.2.20 lakh. The other allegations were not found to be true. In this regard, ‘brief facts of case’ as mentioned in charge-sheet at its serial No. 16, being relevant are reproduced hereinafter :-

5. On above referred charge-sheet, cognizance of offence was taken and a case was registered on 08.02.2019. On same day, summons were issued to present applicant. The order dated 08.02.2019 is reproduced hereinafter :

6. The applicant has challenged the above referred charge-sheet, cognizance as well as summoning order in present application filed under Section 482 Cr.P.C., which is pending for last four years. During proceedings of present case, at a later stage, since both parties, being real brothers, have shown readiness to negotiate following order dated 21.02.2024 was passed :-

“Heard Sri Mithlesh Kumar Shukla, learned counsel for the applicant, Sri Rajiv Chadda, opposite party no.2, in person, who is an Advocate of this Court and Sri Vijay Kumar assisted by Sri Ajay Kumar Singh, learned AGA for the State.

This matter was fixed for hearing in chamber today. Applicant and opposite party no.2 are real brothers and they are present in Court today. On the request of both the parties, matter was heard today.

Some dispute with regard to the Will executed by their father arose between them. In the negotiation held between the parties through learned counsel for the parties assisted by learned AGA, they arrived at an amicable settlement of the dispute to be reduced in writing and to be filed before this Court by 02.04.2024. It is also agreed upon between the parties that the applicant shall also consult his sister Mrs. Priti Kapoor, who is presently residing in Agra. The applicant and opposite party no.2 shall extend their No Objection Certificates in continuation to the arrangement of the house situated at Preetam Nagar, Prayagraj as well as Kidwai Nagar, Kanpur Nagar, so that names of the applicant and opposite party no.2 may be mutated in the records of the respective Municipal Corporations.

So far as the payment of amount as mentioned in the Will executed by the father of the parties is concerned, as per negotiation, the settled amount is Rs.4.95 lakhs for which a provision is made in paragraph 5 of the Will dated 26.5.2016 by Late V.N. Chadda, former ADJ plus Rs.5.00 lakhs, as settlement amount, total of which comes to Rs.9.95 lakhs. The parties have agreed that Rs.2.20 lakhs has to be deducte