A. K. SIKRI, J. ( 1 ) NOBODY is present on behalf of the respondent No. 2 in spite of service. This petition is filed by the petitioner seeking quashing of proceedings in FIR No. 18/97 registered under Section 406, IPC with Police Station Connaught place, New Delhi. The allegations made in the complaint are that some time in the year 1995, the petitioner No. 1 Mr. P. K. Gupta, Managing Director of M/s. Prestige hm Polycontainers Ltd. had approached the complainant for getting on lease equipment worth Rs. 20 lakh and consequently lease rental agreement dated 14. 11. 95 described as Lease Agreement bearing No. LE-17 was executed. This lease Agreement contemplated payment of over 36 months and 36 post-dated cheques were signed by Sashank Gupta, Executive Director of the said company and were given to the complainant. The agreement further provided that in the event of default in payment of the lease rental, the lessee company would immediately return the leased equipment entrusted to it. The allegations in the complaint is that the petitioners defaulted in making regular payment of monthly rental and some of the cheques given in advance were bounced. Because of this default on the part of the petitioner, the petitioners were required to give back the lease equipment which was entrusted to the petitioners and on their failure to do so they allegedly committed an offence under Section 406 of IPC, in addition to cheating the lessee. ( 2 ) CASE was registered, investigation carried out and the charge-sheet filed. When the matter came up before the learned MM for framing of charge, plea was taken that cognizance of offence under Section 406, IPC could not be taken as the charge-sheet was filed after expiry of the period of limitation. Learned MM has passed order dated 21. 7. 2005 as per which prima facie case against the petitioners is made out for offence under Section 420 read with Section 120b, IPC. Thus charge under Section 406 is dropped and instead as per order dated 21. 7. 2005 the petitioners are implicated under Section 420, IPC. Learned MM has passed order dated 21. 7. 2005 as per which prima facie case against the petitioners is made out for offence under Section 420 read with Section 120b, IPC. Thus charge under Section 406 is dropped and instead as per order dated 21. 7. 2005 the petitioners are implicated under Section 420, IPC. ( 3 ) UNDER the Lease Rental Agreements, on failure of the petitioners to make payment of lease rentals, the complainant was entitled to have the possession of leased equipment which according to the complainant was entrusted to the petitioners and the ownership of the said equipment remained vested with the complainant. It is for this reason that even the FIR was registered under Section 406, IPC. However, the learned MM has held that no case is made out under Section 406, IPC presumably because of the reason that the learned MM was conscious of the fact that insofar as charge under Section 406, IPC is concerned the case is time-barred. Be that as it may, statement is made by Mr. K. K. Sud, learned Senior counsel appearing for the petitioners that petitioners had even earlier offered to give back the equipment to the complainant and it is the complainant who did not take back delivery of that equipment. He submits that even now petitioners are ready and willing to give back equipment. ( 4 ) THE question is as to whether the case of cheating is made out, for which the petitioners are charged. The complainant is a financier. It had agreed to finance the equipment to the extent of Rs. 20 lakh and balance as Rs. 15 lakh were contributed by the petitioners. The complainant main intention was to get back its money. No doubt the Agreement is of lease rentals. At the time of execution of the agreement 36 post-dated cheques were given. Some of these cheques were even honoured. Furthermore, when the case was registered, the petitioners agreed to make payment of Rs. 20 lakh to the complainant and the amount was in fact paid. Thus in addition to the fact that some of the cheques given earlier for instalments of rental were honoured, the petitioners have made payment of further sum of Rs. 20 lakh i. e. the amount financed by the respondents for purchase of the leased equipment. 20 lakh to the complainant and the amount was in fact paid. Thus in addition to the fact that some of the cheques given earlier for instalments of rental were honoured, the petitioners have made payment of further sum of Rs. 20 lakh i. e. the amount financed by the respondents for purchase of the leased equipment. In the aforesaid circumstances, ex facie no ingredients of Section 415, ipc are made out inasmuch as it cannot be said that at the time of entering into transaction and signing agreement dated 14. 11. 1995 there was any intention on the part of the petitioner to cheat and defraud the respondent. Form the nature of the transaction, it is clear that it was a dispute purely of a civil nature and the matter is squerely covered by the judgment passed by Hon'ble Supreme Court in the case of V (2006) SLT 475=iii (2006) CCR 128 (SC), M/s. Indian Oil Corporation v. M/s. NEPC India Ltd. and Ors. (Case No. Appeal (Crl.) 834 of 2002 decided on 20. 7. 2006 ). The relevant paras are as under:"10. While on this issue, it is necessary to take notice of a growing tendency in business circle 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, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in 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 though criminal prosecution should be deprecated and discouraged. In G. Agar Yuri v. State of U. P. , this Court observed-'it is to be seen if a matter, which is essentially of 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 High Court is to exercise its jurisdiction under Section 482 of the Code. 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 High Court is to exercise its jurisdiction under Section 482 of 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. ' while no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the Courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250, Cr. P. C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may. ""19. The question is whether there is 'entrustment' in an hypothecation? hypothecation is a mode of creating a security without delivery of title or possession. Both ownership of the movable property and possession thereof, remain with the debtor. The creditor has an equitable charge over the property and is given a right to take possession and sell the hypothecated movables to recover his dues (note: we are not expressing any opinion on the question whether possession can be taken by the creditor, without or with recourse to a Court of law ). The creditor may also have the right to claim payment from the sale proceeds (if such proceeds are identifiable and available ). The following definitions of the term 'hypothecation' in P. Ramanatha Aiyar's Advanced Law Lexicon [third (2005) Edition, Vol. 2, are relevant-'hypothecation : It is the act of pledging an asset as security for borrowing, without parting with its possession or ownership. The borrower enters into an agreement with the lender to hand over the possession of the hypothecated asset whenever called upon to do so. The charge of hypothecation is then converted into that of a pledge and the lender enjoys the rights of a pledge. The borrower enters into an agreement with the lender to hand over the possession of the hypothecated asset whenever called upon to do so. The charge of hypothecation is then converted into that of a pledge and the lender enjoys the rights of a pledge. ' 'hypothecation' means a charge in or upon any movable property, existing in future, created by a borrower in favour of a secured creditor, without delivery of possession of the movable property to such creditor, as a security for financial assistance and includes floating charge and crystallization of such charge into fixed charge on movable property [borrowed from Section 2 (n) of securitisation and Reconstruction of Financial Assets and enforcement of Security Interest Act, 2002]'. But there is no 'entrustment of the property' or 'entrustment of dominion over the property' by the hypothecatee (creditor) to the hypothecator (debtor) in an hypothecation. When possession has remained with the debtor/owner and when the creditor has neither ownership nor beneficial interest, obviously there cannot be any entrustment by the creditor. ""24. We accordingly hold that the basic and very first ingredient of criminal breach of trust, that is entrustment, is missing and, therefore, even if all the allegations in the complaint are taken at their face value as true, no case of 'criminal breach of trust' as defined under Section 405, ipc can be made out against NEPC India. " ( 5 ) IN fact the amount paid by the respondent/complainant has been received by him. May be because of this reason respondent was not interested in taking back equipment and has not appeared in spite of service of notice in this petition. Accordingly FIR No. 18/97 registered with Police Station Connaught Place, new Delhi is hereby quashed and the impugned orders passed by learned MM are set aside. Petition stands disposed of. Petition disposed of.