(Ranjan Gogoi, Adarsh Kumar Goel and Navin Sinha, JJ.)
Sangeeta Bansal and Another _______________________ Appellant(s);
v.
State of NCT of Delhi and Others ___________________ Respondent(s).
Criminal Appeal No(S). 1907 of 2017 [Arising Out of Special Leave Petition (Criminal) No. 2216 of 2010], decided on November 7, 2017
The Order of the court was delivered by
Order
1. Leave granted.
2. We have heard the learned counsels for the parties.
3. The present appeal is directed against the order of the High Court of Delhi dated 6th November, 2009 by which the quashing petition filed by the appellants has been dismissed. The criminal proceedings in respect of which quashing was sought was under Section 409 read with Section 34 of the Indian Penal Code, 1860 (“IPC” for short).
4. The facts that will require to be noticed lie within a short compass. The appellants imported certain machines which were seized by the Customs Authorities on a claim/demand of customs duty payable on the said machines. Pending adjudication of the demand raised by the Customs Authorities custody of the machines was given to the appellants. It is alleged that the appellants while retaining custody of the machines had transferred the same by way of sale. Hence the offence under Section 409/34 IPC has been committed.
5. We find the allegation of commission of the offence under Section 409/34 IPC to be ex facie untenable. Section 409 IPC is one specie of the offence of criminal breach of trust which is defined by Section 405 IPC. To bring home the offence under Section 405 IPC the first ingredient that is required to be proved by the prosecution is that there was an entrustment of the property to the accused. In the present case, there is no manner of doubt that the appellants having imported the machines were the owners of the said property and the only claim that the Customs Authorities had on the said property is one relating to payment of customs duty. If that is so, we do not see how the proceedings against the accused appellants for commission of the offence of criminal breach of trust would be maintainable in law.
6. That apart, the materials on record indicate that an adjudication in the present case has been completed by an order of the Settlement Commission. The duty, interest, penalty, etc. have been quantified and ordered to be deducted from the amount lying in deposit with the Commissioner of Customs. If the matter has to be viewed from the aforesaid perspective, we find that there is no live cause of action in the instant matter to proceed any further.
7. Consequently and in the light of the above we allow this appeal; set aside the order of the High Court and quash the impugned proceedings registered and numbered as FIR No. 244/2008 under Section 409 read with Section 34 IPC at Police Station Anand Vihar, Delhi.
8. The amount lying in deposit in the Registry of this Court after deduction/adjustment of the duty, interest, penalty, etc. and all other dues, duly certified by the Customs Authority will be refunded to the appellants forthwith.
9. The appeal is disposed of in the above terms.
PETITION(S) FOR SPECIAL LEAVE TO APPEAL (CRL.) NO(S). 2216/2010
Sangeeta Bansal and Another ______________________ Appellant(s)
v.
State of NCT of Delhi and Others ___________________ Respondent(s)
(FOR STAY APPLICATION ON IA 5358/2010 FOR [PERMISSION TO FILE ANNEXURES] ON IA 17867/2010 FOR [PERMISSION TO FILE ANNEXURES] ON IA 12858/2013)
Date: 07-11-2017 This matter was called on for hearing today.
(Before Ranjan Gogoi, Adarsh Kumar Goel and Navin Sinha, JJ.)
For Petitioner(s) Ms. Meenakshi Arora, Sr. Adv.
Ms. Shikha Sapra, Adv.
Mr. Piyush Kumar, Adv.
Ms. Reena Rawat, Adv.
Ms. Abha R. Sharma, AOR
For Respondent(s) Mr. Ajit Kumar Sinha, Sr. Adv.
Mr. P.K. Dey, Adv.
Mr. Shankar Divate, Adv.
Mr. B. V. Balaram Das, AOR
Mr. B. Krishna Prasad, AOR
UPON hearing the counsel the Court made the following
ORDER
10. Leave granted.
11. The appeal is disposed of in terms of the signed order.
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