Judgment :- 1. Seeking a direction to the respondent police to register a case on the complaint of the petitioners dated 28.03.2012, they have come up with this petition invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C. 2. The petitioners made three different complaints on 28.03.2012 separately to the first respondent. The crux of the complaints is one and the same. According to the petitioners, they were working as Teachers in a private school known as ‘St.John’s Senior Secondary School and Junior College (CBSE)’ for some years. At the time when they joined the School as Teachers, the second respondent Management insisted for the production of their original testimonials such as SSLC, +2 Certificate, Degree etc. The same were accordingly submitted by the petitioners to the Management. The petitioners 1 and 3 resigned their job in the year 2010 and the second petitioner resigned her job in the year 2011. After resignation, when the petitioners approached the second respondent Management for return of their original testimonials, they unlawfully declined to return the same. All the efforts made by the petitioners for return of the testimonials proved futile. Ultimately, the petitioners have approached the first respondent with the above individual complaints dated 28.03.2012 for taking action against the school management. But, the first respondent has not taken any action so far. It is in these circumstances, the petitioners have come up with this petition seeking a direction on their complaints. 3. The second respondent has filed a detailed counter wherein, he has admitted that the above certificates of the petitioners are in the custody of the second respondent. But what all that he would state is that at the time when the petitioners entered service in the school, an agreement was reached into between the school Management and the respective Teachers, under which, it was agreed upon that if a Teacher leaves the school in the middle of the academic year then, he has to repay three months salary and only on such payment, he/she will be entitled for the return of all the testimonials. In the counter, it is further stated that in this case, when the petitioners resigned their job, they did not repay the three months salary in terms of the agreement. It is because of that, the above certificates have been retained by the Management. In the counter, it is further stated that in this case, when the petitioners resigned their job, they did not repay the three months salary in terms of the agreement. It is because of that, the above certificates have been retained by the Management. The retention of the certificates by the Management, according to the counter, would not make out any criminal offence warranting registration of a case. 4. I have heard Mr.P.N.Prakash, learned counsel for the petitioner; Mr.M.Maharaja, learned Additional Public Prosecutor appearing for the first respondent and Mr.Habibullah Basha, learned Senior Counsel appearing for the second respondent. 5. Mr.P.N.Prakash, the learned counsel for the petitioner would submit that the retention of the certificates of the petitioners by the second respondent Management amounts to unlawful retention which makes out an offence punishable under Section 406 I.P.C., requiring registration of a case by the first respondent police. In order to substantiate the said contention, the learned counsel for the petitioner would rely on a judgment of the Hon'ble Supreme Court in Krishna Kumar, v. Union of India ( AIR 1959 SC 1390 ). 6. The learned counsel for the petitioner has further relied on a judgment of this Court in Kesavan v. Director of Medical Education, Kilpauk, Chennai & Another wherein, a learned Single Judge of this Court has taken the view that even the University cannot retain the certificates of an individual based on a bond. 7. But, the learned Senior Counsel appearing for the second respondent would vehemently oppose this petition. According to him, as per the terms of the agreement, the petitioners are bound to repay their three months salary. If only they make such payment, they would be entitled for return of such certificates. Since, the petitioners have not repaid the amount in terms of the agreement, the second respondent has got every right to retain their certificates. He would further submit that if it is the contention of the petitioners that the above terms in the agreement is void, then they can work out their remedies only before the civil Court. The learned Senior Counsel would therefore submit that this Court cannot go into the question of validity of the terms of the agreement in this petition. He would further submit that if it is the contention of the petitioners that the above terms in the agreement is void, then they can work out their remedies only before the civil Court. The learned Senior Counsel would therefore submit that this Court cannot go into the question of validity of the terms of the agreement in this petition. He would further submit that in any event, mere retention of certificates of the petitioners by the second respondent Management would not make out any offence and therefore, no direction could be issued by this Court for registration of the case. 8. I have considered the rival submissions. 9. At the outset, I have to make reference to State of Punjab v. Davinder Pal Singh Bhullar & others etc., (2012 (1) Crimes 44 (SC)). In the said judgment, the Hon'ble Supreme Court has held that the power of this Court under Section 482 Cr.P.C., can be invoked when there is no alternative remedy, which is effective, available for the parties. But in this case, in my considered opinion, the dispute raised is not pure and simple a civil dispute. In my definite opinion, the retention of the certificates of the petitioners by the school Management prima facie makes out an offence punishable under Section 406 I.P.C., which requires thorough investigation by the police. Simply because there is civil remedy available to the petitioners, it cannot be said that no criminal offence has been made out. It is the settled law that criminal prosecution as well as civil remedy can very well co-exist (vide judgment of the Hon'ble Supreme Court in Indian Oil Corporation v. NEPC India Ltd., ( 2006(6) SCC 736 )). With this legal background let me now go into the facts of the present case. 10. Admittedly, there was an agreement entered into between the petitioners and the second respondent Management. In the said agreement, ofcourse, there is a clause that if the teacher resigns his/her job during the middle of the academic year, then, he/she has to repay three months salary. In this case, admittedly, the petitioners have not repaid the same. This certainly gives right to the second respondent Management to initiate proceedings for recovering the said amount from the petitioners, provided the petitioners are liable to pay the same in accordance with the terms of the agreement. In this case, admittedly, the petitioners have not repaid the same. This certainly gives right to the second respondent Management to initiate proceedings for recovering the said amount from the petitioners, provided the petitioners are liable to pay the same in accordance with the terms of the agreement. But, in my considered opinion, the certificates of the petitioners cannot be retained like a ransom. The retention of the certificates by the second respondent Management, in my considered opinion, is unlawful which makes out an offence under Section 406 I.P.C. 11. In this regard, I may refer to Section 6 of the Transfer of Property Act. Section 6 of the Transfer of Property Act defines as to what are all the properties which cannot be transferred. As per the said provision, the Certificates, Mark sheets, Conduct Certificate are all properties which cannot be transferred at all (vide Section 6(4) of the Act. By means of an agreement, the property which is transferable alone can be transferred. Even by means of an agreement a property which cannot be transferred cannot be a subject of transfer under the guise of the agreement. Since the said term in the agreement is obviously void, it does not require any adjudication or judicial interference by the Court and so, I have to hold that the retention of the certificates by the second respondent management is unlawful. 12. Now let us examine as to whether the above agreement can be termed as a ‘valuable security’ so as to create a right over the certificates in favour of the Management. Section 30 of I.P.C., defines ‘valuable security’ as follows:- “30.) Valuable security The words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that the lies under legal liability, or has not a certain legal right. 13. A close reading of the above provision would show that the right is created by the document must be a ‘legal right’ and not otherwise. 13. A close reading of the above provision would show that the right is created by the document must be a ‘legal right’ and not otherwise. The term ‘illegal’ is defined in Section 43 of I.P.C., which reads as follows:- “43.) Illegal, Legally bound to do: The word "illegal" is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be "legally bound to do" whatever it is illegal in him to omit. 14. Thus, it is ipsofacto clear that doing an act which is prohibited by law is illegal. In the instant case, as per Section 6 of the Transfer of Property Act, there is a prohibition to transfer any right in respect of these certificates. Thus, the agreement cannot be treated as a valuable security creating a legal right in favour of the Management to retain the certificates for ever despite the demand for return of the same. 15. The learned Senior Counsel appearing for the second respondent would submit that the retention of the certificates by the second respondent is not out of any transfer and therefore, the provisions of the Transfer of Property Act cannot be invoked. This argument of the learned Senior Counsel needs to be accepted and eventually this Court has to hold that the certificates were only entrusted to the Management as stated in Section 405 I.P.C. 16. The term ‘entrusted’ and ‘with the property’ came to be interpreted by the Hon'ble Supreme Court in State of Gujarat v Jaswantlal ( AIR 1968 SC 700 ) wherein in paragraph No.8, the Hon'ble Supreme Court has held as follows:- “8.) The term ‘entrusted’ found in Section 405 IPC governs not only the words ‘with the property’ immediately following it but also the words ‘or with any dominion over the property’ occurring thereafter see Velji Raghvaji Patel v. State of Maharashtra1. Before there can be any entrustment there must be a trust meaning thereby an obligation annexed to the ownership of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. But that does not mean that such an entrustment need conform to all the technicalities of the law of trust see Jaswantrai Manilal Akhaney v. State of Bombay2. But that does not mean that such an entrustment need conform to all the technicalities of the law of trust see Jaswantrai Manilal Akhaney v. State of Bombay2. The expression ‘entrustment’ carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them.......” 17. If we apply the above law laid down by the Hon'ble Supreme Court to the facts of the present case, it will leave no doubt that in this case, the certificates were handed over to the Management of the school so that the Management can have domain over the same so long as the Teacher is in service. But, as I have already concluded, no legal right is created as against the petitioners. Thus, there is a clear fiduciary relationship created between the Teachers and the Management in respect of the certificates. Thus, in the instant case, there are reasons to hold that the certificates were only entrusted. If it is a mere entrustment and not a transfer, then the second respondent Management has got no authority in law to retain the same after the Teachers have resigned their job and the trust is withdrawn. The retention of the said certificates further will surely amount to an offence under Section 406 I.P.C., provided such retention amounts to dishonest misappropriation. 18. In Krishna Kumar, v. Union of India’s case referred to above by the learned counsel for the petitioners, the question which came up for consideration before the Hon'ble Supreme Court was ‘whether wrongful retention of any property would be an offence’. The Hon'ble Supreme Court has referred to Sections 24 & 25 I.P.C., for the said purpose. Section 24 of I.P.C., reads as follows:- “24.) Dishonestly Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly” 19. Referring to the above provisions, in the said judgment, the Hon'ble Supreme Court has held as follows:- “Wrongful gain includes wrongful retention and wrongful loss includes being kept out of the property as well as being wrongfully deprived of property. Referring to the above provisions, in the said judgment, the Hon'ble Supreme Court has held as follows:- “Wrongful gain includes wrongful retention and wrongful loss includes being kept out of the property as well as being wrongfully deprived of property. Therefore when a particular thing has gone into the hands of a servant he will be guilty of misappropriating the thing in all circumstances which show a malicious intent to derive the master of it.” 20. At this juncture, I may refer to Section 23 of I.P.C., which defines the term ‘wrongful loss’ as follows:- 23.) "Wrongful loss" "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. Gaining wrongfully, losing wrongfully A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property as well as when such person is wrongfully deprived of property. 21. A close reading of the judgment of the Hon'ble Supreme Court in Krishna Kumar, v. Union of India’s case and the definition of the term ‘wrongful loss’ would make it clear that if a person who is legally entitled to a property is wrongfully deprived of the same, it will be a wrongful loss in terms of Section 23 of I.P.C., and the person who caused the wrongful loss is deemed to have acted dishonestly in terms of Sections 24 and 403 I.P.C. 22. In Kesavan v. Director of Medical Education, Kilpauk, Chennai & Another case referred to above, similar question arose before this Court. That was a case where +2 mark sheet and the Transfer Certificate of a student were retained by the Tamil Nadu Government Dental College. The defence taken in that case by the Government was that the student discontinued the course and therefore, as per the bond executed, the student was liable to pay Rs.2 lakhs. Since the same was not paid, the certificates were retained by the Government. While considering the said issue, a learned Single Judge of this Court has held that for not paying the amount, the College Authorities could take at the most recovery proceeding against the student based on the bond. 23. Since the same was not paid, the certificates were retained by the Government. While considering the said issue, a learned Single Judge of this Court has held that for not paying the amount, the College Authorities could take at the most recovery proceeding against the student based on the bond. 23. In view of the above settled position, I have to hold that the certificates of the candidates cannot be treated as transferable property so as to be retained by the Management under the guise of recovering the amount in terms of the agreement/bond. The socalled agreement is not a valuable security creating rights in favour of the Management. It should be treated only as an entrustment as provided under Section 405 I.P.C. As I have already stated, in this case, it is always open for the second respondent Management to initiate proceedings against the petitioners for recovery of the amount in terms of the agreement. But, for the failure of the petitioners to pay the said amount, their certificates cannot be retained. Such retention will be unlawful and dishonest for more than one reason. Since the certificates are not transferable, they are supposed to be always in the hands of the candidate to whom the Government has issued the certificates. No other person including the employer has got right to retain the certificates after the candidate has left his service. As and when he leaves, the certificates should be returned to him and if the certificates are allowed to be retained by the Management, it will amount to allowing the certificates to be treated as a transferable property. That course is not at all permissible in law. 24. In view of the above legal and factual position, in the given case, retaining the certificates by the Management is certainly unlawful and dishonest and it will amount to criminal breach of trust. Therefore, this is a fit case where this Court has to issue a direction to the first respondent police to register a case on the basis of the complaints of the petitioners. Accordingly, this Criminal Original Petition is allowed with a direction to the first respondent police to register a case under Section 406 I.P.C., against the second respondent on the complaints of the petitioners dated 28.03.2012 and investigate the matter and then file a final report in accordance with law. 25. Accordingly, this Criminal Original Petition is allowed with a direction to the first respondent police to register a case under Section 406 I.P.C., against the second respondent on the complaints of the petitioners dated 28.03.2012 and investigate the matter and then file a final report in accordance with law. 25. After this order was dictated in open Court, the learned Senior Counsel appearing for the second respondent submitted that this order may be kept in abeyance till 13.07.2012 to enable him to advise the second respondent to return the certificates to the petitioners, if possible. 26. The learned counsel for the petitioners submitted that if the certificates are returned, the petitioners would be satisfied. So, he has no objection for keeping this order in abeyance till 13.07.2012. Considering the above request, it is directed that this order shall be kept in abeyance till 13.07.2012. The Registry is directed to list this matter again on 13.07.2012. As directed earlier, the matter has been listed today. 27. Mr.P.N.Prakash, learned counsel for the petitioners; M.Maharaja, learned Additional Public Prosecutor and Mr.R.Nandasabapathy, learned counsel on record for the second respondent have appeared. 28. Mr.R.Nandasabapathy, learned counsel on record for the second respondent would submit that the second respondent is prepared to return the certificates of the petitioners provided the petitioners give an undertaking in writing that they will repay their three months salary within a period of four months. He would further submit that if the petitioners are not prepared to give such undertaking to repay the said amount then, he has got instructions to submit that the second respondent would take up this matter by way of Special Leave Petition before the Hon'ble Supreme Court. The said statement is recorded. 29. Mr.P.N.Prakash, learned counsel for the petitioners would submit that the petitioners are unable to give such undertaking due to their utter poverty. He would further submit that because the certificates have been unlawfully retained for such a long time, they were not in a position to get any Government job. He would further submit that they are now living on a very meager salary of around Rs.3,000/-per month in some private schools. He would further submit that because the certificates have been unlawfully retained for such a long time, they were not in a position to get any Government job. He would further submit that they are now living on a very meager salary of around Rs.3,000/-per month in some private schools. He would also further submit that as per the judgment of the Hon'ble Supreme Court in R.D.Saxena v. Balram Prasad Sharma ( 2000 (7) SCC 264 ), the second respondent cannot have any lien to retain the certificates of the petitioners. He would submit that the petitioners right to life guaranteed under Article 21 of the Constitution of India and liberty guaranteed under Article 19 of the Constitution of India are jeoparady. He would further submit that it is not as though the petitioners are not willing to repay the said amount but, it is their inability to pay the same due to utter poverty. The said statement is also recorded. 30. On 10.07.2012, after the order was completed, since Mr.Habibullah Basha, learned Senior Counsel submitted that he would advise the second respondent to return the certificates to the petitioners and since it was submitted by the learned counsel for the petitioners that in the event of certificates are returned to the petitioners, the petitioners would be prepared to withdraw the complaints, with a view to afford opportunity to both parties, the matter was ordered to be listed today (13.10.2012) and the said order was directed to be kept in abeyance, as requested by both parties. 31. But, the learned counsel on either side reported today that the matter could not be settled. Since the second respondent is not prepared to return the certificates to the petitioners, the direction to keep the order dated 10.07.2012 in abeyance is vacated. As directed earlier, the first respondent police shall register a case and investigate the same in accordance with law.