Section 406 IPC Cannot Be Invoked Without Entrustment Of Property By Person Having Dominion Over It: Kerala High Court

The Court was hearing a petition filed by the sole accused in Crime No. 1000 of 2023 of Karunagappally Police Station. The petitioner sought to quash the complaint, FIR and subsequent proceedings concerning the elephant named Raman.

A Bench of Justice A. Badharudeen observed: “When one party asserts title over the elephant based on two documents showing gifting of the same, the ownership based on the said documents, if disputed, the same is a matter to be decided by a competent civil court. In such a case, on no stretch of imagination it could be said that an offence under Section 406 of the IPC be found prima facie. The rationale is that the very fundamental necessity to constitute an offence punishable under Section 406 of the IPC is entrustment of property by a person having domain over it. The word ‘domain’ literally means ‘a sphere of control’ or ‘an authority’. Simply put, a person who has parted with his title and possession of a property seized to be having any domain or authority or control over the property.”

Senior Advocate B. Raman Pillai appeared for the petitioner. Senior Public Prosecutor Sajeev P.K. appeared for the State, while Advocate C. Unnikrishnan represented the de facto complainant.

Background

The petitioner asserted that Sadanandan had transferred ownership and possession of Raman to him through Annexure A3. He contended that Sadanandan had earlier obtained the elephant under Annexure A4, by which Mata Amritanandamayi Math purportedly gifted the animal back to him in February 2017.

According to the complaint, however, the elephant had only been entrusted to the petitioner for its care during its musth period because he owned other elephants and had sufficient land. The complainant alleged that the petitioner subsequently failed to return the animal despite promising to do so.

The petitioner argued that the alleged gift documents demonstrated that he obtained custody as owner and not as an entrusted custodian. The de facto complainant disputed those documents and also opposed the petition on the ground that the petitioner had previously filed another quashing petition seeking the same relief.

Court’s Observations

Entrustment And Dominion Are Essential

The Court observed that entrustment of property, or dominion over it, was a foundational ingredient of criminal breach of trust. It added that the entrusted person must dishonestly misappropriate, convert, use or dispose of the property contrary to a direction of law or a legal contract governing the trust.

Referring to Sudhir Shantilal Mehta v. CBI (2009), the Court stated: “The criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or has otherwise dominion thereover. Such an act must not only be done dishonestly but also in violation of any direction of law or any contract express or implied relating to carrying out the trust.”

The Court further referred to C.M. Narayan (1953) and observed that the property’s ownership or beneficial interest must vest in someone other than the accused, who must hold it on behalf of, or for the benefit of, that person.

Disputed Gift Documents Raise A Civil Title Question

The Court noted that Annexure A4 purported to show that the Math gifted Raman back to Sadanandan, while Annexure A3 purported to show a subsequent gift by Sadanandan to the petitioner.

The Court held that because the petitioner asserted absolute title under those documents and the de facto complainant disputed them, the resulting ownership controversy had to be resolved by a competent civil court. It found that such a title dispute did not disclose the entrustment necessary to sustain a prima facie offence under Section 406 IPC.

The Court added: “Here, the petitioner claims absolute title on the elephant in question, whereas the 2nd respondent has no right unless he could establish before a competent civil court that he did not execute Annexure A4, which led to the execution of Annexure A3, the title document of the petitioner. Be it so, the FIR sought to be quashed in this case is liable to be quashed for want of even primary materials disclosing offences punishable under Section 406 of the IPC or Section 420 of the IPC.”

Cheating And Criminal Breach Of Trust

The Court also observed that the police had simultaneously invoked cheating and criminal breach of trust on the same allegations, although the two offences were fundamentally contradictory and could not coexist on the exact same facts or a single transaction.

Relying on Delhi Race Club (1940) Ltd. v. State of Uttar Pradesh (2024), the Court reiterated that the two offences were independent and distinct. It also noted that counsel for the de facto complainant accepted that Section 420 IPC was not prima facie attracted and sought to sustain only the allegation under Section 406 IPC.

The Court noted that the petitioner had filed an earlier petition seeking the same relief and had withdrawn it after the pendency of both petitions was brought to his notice.

However, the Court held that technicalities should not deny relief where a litigant was otherwise entitled to it in the interests of justice. It therefore rejected the complainant’s objection and examined the criminal case on its merits.

Conclusion

The Court allowed the criminal miscellaneous petition after finding no primary material disclosing offences under either Section 406 or Section 420 IPC.

It quashed the FIR in Crime No. 1000 of 2023 of Karunagappally Police Station and all further proceedings arising from it.

Cause Title: Krishnankutty U.P. v. State of Kerala and Another (Neutral Citation: 2026:KER:79734)

Appearances

Petitioner: Senior Advocate B. Raman Pillai; Advocates R. Anil, Sujesh Menon V.B., Thomas Sabu Vadakekut, Mahesh Bhanu S., Ressil Lonan, Joel George Kampiyil, Ananth Krishna K.S. and George Vinci Jose

Respondents: Senior Public Prosecutor Sajeev P.K.; Advocates C. Unnikrishnan, D. Jayakrishnan, Vivek Nair P., M.R. Radhakrishnan, Vijaykrishnan S. Menon, G. Gowardhan Dev G. Nair, K.S. Aravind, V. Aswin, Gargi Ramachandran and Shibu S.

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