# Bid & Hammer Fine Art Auctioners (P) Ltd.& Anr v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 855
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-15
- **Case number:** Misc. Single No. 2571 of 2016
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bid-hammer-fine-art-auctioners-p-ltd-anr-v-state-of-u-p-anr-44841
- **Pages:** 9

## Headnote

A. Company Law-Companies Act,1956 -
Service
law
-
agreement
between
company and consultant - termination of
service - complaint against company for
non-payment
of
agreed
amountcomplaint was made under section 406
of IPC,1860-it was held that it is a clear
case of civil dispute for recovery of
money being given the colour of a
criminal proceeding for affecting the
recovery by misusing the provisions of
IPC.

B.
Bare
perusal
of
the
complaint,
treating the same to be a gospel of truth
does not even allege any entrustment of
property or any misappropriation of the
said property and , thus, no ingredients
which are required to attract the rigours
of Section 405 IPC are present in the
complaint and consequently the order
passed by the Magistrate summoning the
petitioners for being tried of any offence
under Section 406 IPC was wholly
unjustified. (Para 11,12,13,14,15,16)

Petition allowed (E-6)

List of cases cited:-

## Text

3 All. Bid & Hammer Fine Art Auctioners (P) Ltd. & Anr. Vs. State of U.P.& Anr.
855
within a period of three weeks. The
objection should be filed within one
week. While considering objections, the
Dy. Registrar may also examine Agenda
Register,
Proceedings
Register,
Membership Fee Register and Bank
passbook with regard to the members.
The Dy. Registrar shall verify on the basis
of parameters mentioned in Section 4 B
of the Act alone.

46. The Dy. Registrar shall finalize
the list within a further period of two
weeks and circulate the Agenda for
holding the elections of the Society
thereafter within a further period of three
weeks.

47. The entire exercise of holding of
elections shall be completed by the Dy.
Registrar in accordance with the Byelaws of the Society within a maximum
period of three months from the date a
certified copy of the order is produced
before the Authority concerned.

48. For a period of three months or
till the declaration of the result of the
election whichever is earlier, the Society
shall be put under single hand operation
to facilitate the payment of salary of the
teaching and non-teaching staff.

49. Accordingly, Writ Petition
No.3270 (MS) of 2014 is allowed.
----------
(2019)11ILR A855

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.11.2019

BEFORE
THE HON'BLE PANKAJ BHATIA, J.

Misc. Single No. 2571 of 2016
Bid & Hammer Fine Art Auctioners (P)
Ltd.& Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Chandra Shekhar Sinha

Counsel for the Respondents:
G.A., Vikas Mishra, Vilas Misra

A. Company Law-Companies Act,1956 -
Service
law
-
agreement
between
company and consultant - termination of
service - complaint against company for
non-payment
of
agreed
amountcomplaint was made under section 406
of IPC,1860-it was held that it is a clear
case of civil dispute for recovery of
money being given the colour of a
criminal proceeding for affecting the
recovery by misusing the provisions of
IPC.

B.
Bare
perusal
of
the
complaint,
treating the same to be a gospel of truth
does not even allege any entrustment of
property or any misappropriation of the
said property and , thus, no ingredients
which are required to attract the rigours
of Section 405 IPC are present in the
complaint and consequently the order
passed by the Magistrate summoning the
petitioners for being tried of any offence
under Section 406 IPC was wholly
unjustified. (Para 11,12,13,14,15,16)

Petition allowed (E-6)

List of cases cited:-

1. Binod Kumar and Ors Vs. State of Bih. And
Anr, 2014(8) Supreme 112

2. Sajal Garg & another Vs. State of U.P. And
Anr,2012(7) ADJ 529

3. Prof. R.K. Vijayasarthy & Anr. Vs. Sudha
Seetharam & Anr.

4. Indian Oil Corporation Vs. NEPC India Ltd.
And Ors., (2206) 6 SCC 736
856 INDIAN LAW REPORTS ALLAHABAD SERIES
5.
Madhavrao
Jiwajirao
Scindia
Vs.
Sambhajirao Chandrojirao Angre (1988) 1 SCC
692

6. State of Haryana Vs. Bhajan Lal, (1992)
Suppl (1) SCC 335

7. Rupan Deol Bajaj Vs. Kanwar Pal Singh
Gill(1995) 6 SCC 194

8. CBI Vs. Duncans Agro Industries Ltd.(1996)
5 SCC 591

9. State of Bih. Vs. Rajendra Agrawalla (1996)
8 SCC 164

10. Rajesh Bajaj Vs. State NCT of Delhi,
(1999) 3 SCC 259

11. Medchl Chemicals & Pharma (P) Ltd. Vs.
Biological E. Ltd (2000) 3 SCC 269

12. Hridaya Ranjan Prasad Verma Vs. State of
Bih. (2000) 4 SCC 168

13. M. Krishnan Vs. Vijay Singh (2001) 8 SCC
645

14. Zandu Pharmaceutical Works Ltd. Vs.
Mohd. Sharaful Haque (2005) 1 SCC 122

15. G. Sagar Suri Vs. State of U.P., (2000) 2
SCC 636

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. 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 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 consultant with effect
from 26.2.2010 is on record which 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
3 All. Bid & Hammer Fine Art Auctioners (P) Ltd. & Anr. Vs. State of U.P.& Anr.
857
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."

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 one month's notice."

3. It was further alleged in the
complaint that demands for payment of
the consideration of Rs. 56,524/- and Rs.
36,202/- were made, however, out of the
said amount only Rs. 56,524/- was paid
and the balance amount of Rs. 1,29,134/-
has not been paid till date despite requests
and reminders. It was further alleged that
for the payment of the balance amount a
legal notice dated 18.12.2010 was got
served through the respondent no.2's
Advocate, however, despite the time
given in the notice having elapsed no
payments have been made as demanded
and as payable to the respondent no.2, as
such it was alleged that an offence under
Section 406 IPC has been committed by
the petitioners.

4. The petitioner no.1 is a company
duly incorporated under the Companies
Act having its registered office at
Bangalore and the petitioner no.2 is the
Chairman and Managing Director of the
858 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner no.1-Company. The Additional
Chief Judicial Magistrate took cognizance
of the complaint and passed an order
summoning the petitioners under Section
406 IPC vide his order dated 29.4.2011
(Annexure No.3 to the writ petition).

5. The petitioners challenged the
said summoning order by filing a
Criminal Revision before the Additional
District Judge (Court No.10) Lucknow
wherein
it
was
argued
that
the
summoning order under Section 406 IPC
was without any authority of law and
wholly illegal, it was further argued that
the civil dispute has been converted into a
criminal proceedings and as such the
summoning order deserves to be quashed.
The said criminal revision was dismissed
by merely observing that no error was
committed by the Magistrate in taking
cognizance
and
summoning
the
petitioners and, thus, the revision was
dismissed.

6. Sri Chandra Shekhar Sinha,
learned counsel for the petitioners has
strenuously argued that from the plain
reading of the allegations levelled in the
complaint, it is a simple case of non
payment of agreed amounts under a
contract and no ingredients of Section
406, IPC are made out even if the entire
allegations levelled in the complaint are
accepted to be a gospel truth. He has
further argued that for summoning an
accused under Section 406 IPC it has to
be alleged that there was criminal breach
of trust and it was essential to establish
that a person was entrusted with property
who has dishonestly misappropriated the
same and without their being these
material allegations in the complaint the
summoning
order
is
without
any
application of mind and is bad in law. He
further argues that a simple civil dispute
has been given colour of a criminal
petition and is nothing but an abuse of
process of law.

7. No one has appeared on behalf of
the complainant even in the revised call to
assist the Court although the counter
affidavit filed by the complainant is on
record.

8. On the basis of the material on
record and the arguments advanced at the
bar, what is to be considered is whether
the complaint discloses any offence
cognizable
under
Section
406
IPC
accepting all the allegations in the
complaint to be correct and whether the
quashing of the complaint would be
necessary to secure the ends of justice.

9. Sri Sinha has relied upon the
judgment of the Apex Court in the case of
Binod Kumar and others Vs. State of
Bihar and another, 2014(8) Supreme
112. He has also relied upon the judgment
of this Court in the case of Sajal Garg &
another Vs. State of U.P. & another,
2012(7) ADJ 529. He has further relied
upon the Judgment of the Apex Court in
the case of Prof. R.K. Vijayasarathy &
another Vs. Sudha Seetharam & another
decided on 15.2.2019 in Criminal Appeal
No.238 of 2019 (Special Leave Petition
(Crl.) No.1434 of 2018) to contend that to
establish a charge under Section 406 IPC,
it is essential that a criminal breach of
trust as provided under Section 405 IPC
should be made out.

10. A bare perusal of Section 405
IPC makes it clear that to bring a charge
of Section 405 IPC, it is essential to plead
that the person accused was entrusted
with the property and has dishonestly
3 All. Bid & Hammer Fine Art Auctioners (P) Ltd. & Anr. Vs. State of U.P.& Anr.
859
misappropriated the said property in
violation of any direction of law or any
legal contract which has been made
touching the discharge of such trust.

11. There is no allegation in the
complaint that the petitioners were
entrusted with any property or dominion
over any property, nor is there any
allegation that the said property has been
misappropriated by the petitioners, the
simple allegation in the complaint is that
the petitioners have failed to repay the
amounts as agreed in between the parties
in terms of the appointment letter dated
26.2.2010.
A
bare
reading
of
the
appointment order dated 26.2.2010 and
the complaint makes it clear that the
genesis of the dispute is non-payment of
the agreed amounts under the agreement
and nothing more. It is a clear case of a
civil dispute for recovery of money being
given the colour of a criminal proceeding
for affecting the recovery by misusing the
provisions of Indian Penal Code.

12. The Hon'ble Apex Court in the
case of Binod Kumar and others (Supra)
while dealing with the scope of Section
482
Cr.P.C.
for
quashing
of
the
proceedings has laid down as under:-

"9. In proceedings instituted on
criminal complaint, exercise of the
inherent powers to quash the proceedings
is called for only in case where the
complaint does not disclose any offence
or is frivolous. It is well settled that the
power under Section 482 Cr.P.C. should
be sparingly invoked with circumspection,
it should be exercised to see that the
process of law is not abused or misused.
The settled principle of law is that at the
stage of quashing the complaint/FIR, the
High Court is not to embark upon an
enquiry as to the probability, reliability
or the genuineness of the allegations
made therein. In Smt. Nagawwa vs.
Veeranna Shivalingappa Konjalgi, (1976)
3 SCC 736, this Court enumerated the
cases where an order of the Magistrate
issuing process against the accused can
be quashed or set aside as under:

"(1) where the allegations made
in the complaint or the statements of the
witnesses recorded in support of the same
taken at their face value make out
absolutely no case against the accused or
the complainant does not disclose the
essential ingredients of an offence which
is alleged against the accused;

(2) where the allegations made
in the complaint are patently absurd and
inherently improbable so that no prudent
person can ever reach a conclusion that
there is a sufficient ground for proceeding
against the accused;

(3)
where
the
discretion
exercised by the Magistrate in issuing
process is capricious and arbitrary
having been based either on no evidence
or on materials which are wholly
irrelevant or inadmissible; and

(4) where the complaint suffers
from fundamental legal defects such as,
want of sanction, or absence of a
complaint by legally competent authority
and the like."

The Supreme Court pointed out
that the cases mentioned are purely
illustrative
and
provide
sufficient
guidelines
to
indicate
contingencies
where the High Court can quash the
proceedings.

10.In Indian Oil Corporation
vs. NEPC India Ltd. And Ors., (2006) 6
SCC 736, this Court has summarized the
860 INDIAN LAW REPORTS ALLAHABAD SERIES
principles
relating
to
exercise
of
jurisdiction under Section 482 Cr.P.C. to
quash
complaints
and
criminal
proceedings as under:-

"The
principles
relating
to
exercise of jurisdiction underSection
482of the Code of Criminal Procedure to
quash
complaints
and
criminal
proceedings
have
been
stated
and
reiterated by this Court in several
decisions. To mention a few--Madhavrao
Jiwajirao
Scindia
v.
Sambhajirao
Chandrojirao
Angre(1988)
1
SCC
692,State of Haryana vs. Bhajan Lal,
1992 Supp (1) SCC 335;Rupan Deol
Bajaj v. Kanwar Pal Singh Gill(1995) 6
SCC 194,Central Bureau of Investigation
v. Duncans Agro Industries Ltd(1996) 5
SCC 591;State of Bihar v. Rajendra
Agrawalla(1996) 8 SCC 164,Rajesh Bajaj
v. State NCT of Delhi,(1999) 3 SCC
259;Medchl Chemicals & Pharma (P)
Ltd. v. Biological E. Ltd(2000) 3 SCC 269
[pic]Hridaya Ranjan Prasad Verma v.
State of Bihar(2000) 4 SCC 168,M.
Krishnan v. Vijay Singh(2001) 8 SCC 645
andZandu Pharmaceutical Works Ltd. v.
Mohd. Sharaful Haque( 2005) 1 SCC 122.
The principles, relevant to our purpose
are:

(i) A complaint can be quashed
where the allegations made in the
complaint, even if they are taken at their
face value and accepted in their entirety,
do not prima facie constitute any offence
or make out the case alleged against the
accused.

For this purpose, the complaint
has to be examined as a whole, but
without examining the merits of the
allegations. Neither a detailed inquiry nor
a meticulous analysis of the material nor
an assessment of the reliability or
genuineness of the allegations in the
complaint, is warranted while examining
prayer for quashing of a complaint.

(ii) A complaint may also be
quashed where it is a clear abuse of the
process of the court, as when the criminal
proceeding is found to have been initiated
with mala fides/malice for wreaking
vengeance or to cause harm, or where the
allegations are absurd and inherently
improbable.

(iii) The power to quash shall
not, however, be used to stifle or scuttle a
legitimate prosecution. The power should
be used sparingly and with abundant
caution.

(iv)
The
complaint
is
not
required to verbatim reproduce the legal
ingredients of the offence alleged. If the
necessary factual foundation is laid in the
complaint, merely on the ground that a
few ingredients have not been stated in
detail, the proceedings should not be
quashed. Quashing of the complaint is
warranted only where the complaint is so
bereft of even the basic facts which are
absolutely necessary for making out the
offence.

(v) A given set of facts may
make out: (a) purely a civil wrong; or

(b) purely a criminal offence; or
(c) a civil wrong as also a criminal
offence. A commercial transaction or a
contractual dispute, apart from furnishing
a cause of action for seeking remedy in
civil law, may also involve a criminal
offence. As the nature and scope of a civil
proceeding are different from a criminal
proceeding, the mere fact that the
complaint
relates
to
a
commercial
transaction or breach of contract, for
which a civil remedy is available or has
been availed, is not by itself a ground to
quash the criminal proceedings. The test
3 All. Bid & Hammer Fine Art Auctioners (P) Ltd. & Anr. Vs. State of U.P.& Anr.
861
is
whether
the
allegations
in
the
complaint disclose a criminal offence or
not."

11. Referring to the growing
tendency in business circles to convert
purely civil disputes into criminal cases,
in paragraphs (13) and (14) of the Indian
Oil Corporation's case (supra), it was
held as under:-

"13. While on this issue, it is
necessary to take notice of a growing
tendency in business circles to convert
purely civil disputes into criminal cases.
This is obviously on account of a
prevalent impression that civil law
remedies are time consuming and do not
adequately
protect
the
interests
of
lenders/creditors. Such a tendency is seen
in
several
family
disputes
also,
[pic]leading to irretrievable breakdown
of marriages/families. There is also an
impression that if a person could
somehow be entangled in a criminal
prosecution, there is a likelihood of
imminent settlement. Any effort to settle
civil disputes and claims, which do not
involve any criminal offence, by applying
pressure through criminal prosecution
should be deprecated and discouraged.In
G. Sagar Suri v. State of U.P., (2000) 2
SCC 636 this Court observed: (SCC p.
643, para 8)

"It is to be seen if a matter,
which is essentially of a civil nature, has
been given a cloak of criminal offence.
Criminal proceedings are not a short cut
of other remedies available in law. Before
issuing process a criminal court has to
exercise a great deal of caution. For the
accused it is a serious matter. This Court
has laid certain principles on the basis of
which the High Court is to exercise its
jurisdiction underSection 482of the Code.
Jurisdiction under this section has to be
exercised to prevent abuse of the process
of any court or otherwise to secure the
ends of justice."

13. The Apex Court while dealing
with the scope of Section 406 IPC held as
under:-

"16. Section 406 IPC prescribes
punishment for criminal breach of trust as
defined inSection 405IPC. For the offence
punishable
underSection
406IPC,
prosecution must prove:

(i)
that
the
accused
was
entrusted with property or with dominion
over it and

(ii) that he (a) misappropriated
it, or (b) converted it to his own use, or
(c) used it, or (d) disposed of it.

The gist of the offence is
misappropriation done in a dishonest
manner. There are two distinct parts of
the said offence. The first involves the fact
of entrustment, wherein an obligation
arises in relation to the property over
which dominion or control is acquired.
The
second
part
deals
with
misappropriation
which
should
be
contrary to the terms of the obligation
which is created.

......

18. In the present case, looking
at the allegations in the complaint on the
face of it, we find no allegations are made
attracting
the
ingredients
ofSection
405IPC.
Likewise,
there
are
no
allegations as to cheating or the dishonest
intention of the appellants in retaining the
money in order to have wrongful gain to
themselves or causing wrongful loss to
the complainant. Excepting the bald
allegations that the appellants did not
make payment to the second respondent
and that the appellants utilized the
862 INDIAN LAW REPORTS ALLAHABAD SERIES
amounts either by themselves or for some
other work, there is no iota of allegation
as
to
the
dishonest
intention
in
misappropriating the property. To make
out a case of criminal breach of trust, it is
not sufficient to show that money has
been retained by the appellants. It must
also be shown that the appellants
dishonestly disposed of the same in some
way or dishonestly retained the same. The
mere fact that the appellants did not pay
the money to the complainant does not
amount to criminal breach of trust."

14. The Apex Court once again in
its judgment dated 15.2.2019 in the case
of Prof. R. K. Vijayasarathy & another
(Supra) extensively considered the scope
of Section 405 IPC as well as the scope of
Section 482 Cr.P.C. while dealing with
the exercise of jurisdiction for quashing
of a complaint, the Hon'ble Court held as
under:-

"11 The High Court, in the
exercise of its jurisdiction underSection
482of the Code of Criminal Procedure, is
required
to
examine
whether
the
averments in the complaint constitute the
ingredients necessary for an offence
alleged underthe Penal Code. If the
averments taken on their face do not
constitute the ingredients necessary for
the offence, the criminal proceedings may
be quashed underSection 482. A criminal
proceeding can be quashed where the
allegations made in the complaint do not
disclose the commission of an offence
underthe Penal Code. The complaint must
be examined as a whole, without
evaluating the merits of the allegations.
Though the law does not require that the
complaint reproduce the legal ingredients
of the offence verbatim, the complaint
must contain the basic facts necessary for
making out an offence underthe Penal
Code."

15. The Apex Court while dealing
with the scope of Section 405 IPC
recorded as under:-

"13. Section 405 of the Penal
Code reads thus:

Section 405.- Criminal breach
of trust.- Whoever, being in any manner
entrusted with property, or with any
dominion
over
property,
dishonestly
misappropriates or converts to his own
use that property, or dishonestly uses or
disposes of that property in violation of
any direction of law prescribing the mode
in which such trust is to be discharged, or
of any legal contract, express or implied,
which
he
has
made
touching
the
discharge of such trust, or willfully
suffers any other person so to do, commits
"criminal breach of trust".

A careful reading ofSection
405shows that the ingredients of a
criminal breach of trust are as follows:

i) A person should have been
entrusted with property, or entrusted with
dominion over property;

ii)
That
person
should
dishonestly misappropriate or convert to
their
own
use
that
property,
or
dishonestly use or dispose of that
property or willfully suffer any other
person to do so; and

iii) That such misappropriation,
conversion, use or disposal should be in
violation
of
any
direction
of
law
prescribing the mode in which such trust
is to be discharged, or of any legal
contract which the person has made,
touching the discharge of such trust.
3 All. Baroda Uttar Pradesh Gramin Bank Vs. The Appellate Authority Under Gratuiry Act & Ors.
863

Entrustment is an essential
ingredient of the offence. A person who
dishonestly
misappropriates
property
entrusted to them contrary to the terms of
an obligation imposed is liable for a
criminal breach of trust and is punished
under Section 406 of the Penal Code."

16. Thus, in view of the law laid
down by the Apex Court and as quoted
above, what is to be seen is whether there
was any allegation of entrustment of
property or dominion over the property
and whether there was any allegation of
dishonest, misappropriation of the said
property. A bare perusal of the complaint,
treating the same to be a gospel truth does
not even allege any entrustment of
property or any misappropriation of the
said property and, thus, no ingredients
which are required to attract the rigours of
Section 405 IPC are present in the
complaint and consequently the order
passed by the Magistrate summoning the
petitioners for being tried of any offence
under Section 406 IPC was wholly
unjustified and perverse. Similarly, the
revisional Court also erred in dismissing
the revision challenging the summoning
order without any application of mind and
without even adverting to the scope of
Section 405 IPC.

17. In view of the findings recorded
above and the law as laid down by the
Apex
Court,
extracted
above,
the
proceedings of 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 are quashed
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, under Section 406 IPC
in the said Complaint are also quashed.

18. The writ petition is allowed in
terms of the order passed above. There
will be no order as to costs.

19. Let a copy of this order be
transmitted to the concerned trial Court
where the Complaint Case No.59 of 2011
is pending for being taken on record.
----------
(2019)11ILR A863

ORIGINAL JURISDICTION863
CIVIL SIDE
DATED: LUCKNOW 15.10.2019

BEFORE
THE HON'BLE MRS. SANGEETA
CHANDRA, J.

Misc. Single No. 7163 of 2012

Baroda Uttar Pradesh Gramin Bank
 ...Petitioner
Versus
The Appellate Authority Under Payment
Of Gratuity Act & Ors. ...Respondents

Counsel for the Petitioner:
Anupras Singh

Counsel for the Respondenst:
A.S.G., Manish Mohan, Sharad K. Shukla,
Vinay Pandey

A. Gratuity Act, 1972 - Section 2(s) -
Service law - Baroda Uttar Pradesh
Gramin Bank (Officers and Employees)
Services
Regulations,2008-Regualtion
2(o)-employee of bank-Branch Managerpayment of gratuity after retirement-the