ORDER : This criminal revision petition is directed against the concurrent judgments of the courts below in Crl.Appeal No.524/2007 on the file of the Sessions Court, Palakkad Division dated 05.02.2010 and C.C.No.258/1996 on the file of the Judicial First Class Magistrate Court-III, Palakkad dated 29.9.2007 convicting the revision petitioner under Section 406 of the Indian Penal Code (hereinafter referred to as 'the IPC') and sentencing him to undergo simple imprisonment for a period of eight months and also to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for a period of three months more. 2. The prosecution case in brief is as hereinbelow:- PW2 Sisili is the wife of PW1 Pankajakshan. When PW1 was away at Delhi, PW2, on instructions from PW1, entrusted his Fiat Car bearing registration No.KL Z 9635 for doing patch work to the workshop of the accused. Accordingly, on 25.9.1994 at about 10 am., the accused had taken the car to the workshop for repairs and received an amount of Rs.2,000/-as advance consideration. The allegation is that the accused failed to return the car after repairs and he had converted the same for his own use and thereby committed criminal breach of trust as defined under Section 406 of the IPC. 3. Initially, PW1 lodged a complaint before the Superintendent of Police, Palakkad. On the basis of the above complaint, PW6 registered Ext.P4 FIR. PW9 conducted investigation in this case and laid final report before the court. 4. The trial court took cognizance of the offence under Section 406 of the IPC and registered the case as C.C.No.258/1996. Upon summons, the accused entered appearance. After having heard both sides, the charge under Section 406 of the IPC was framed. The charge was read over to the accused to which the accused pleaded not guilty. 5. On the side of the prosecution, PWs.1 to 9 were examined and marked Exts.P1 to P4. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Cr.P.C. He denied all the incriminating circumstances appearing in the evidence against him. However, no defence evidence was adduced. 6. Heard Sri.Vipin Narayan, the learned counsel for the revision petitioner and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent-State. 7. The accused in this case was admittedly conducting a motor vehicle workshop under the name and style 'M/s.Panickers Auto Service Centre'. However, no defence evidence was adduced. 6. Heard Sri.Vipin Narayan, the learned counsel for the revision petitioner and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent-State. 7. The accused in this case was admittedly conducting a motor vehicle workshop under the name and style 'M/s.Panickers Auto Service Centre'. PW1 who is an Ayurvedic Vaidyan is the owner of a Premier Padmini Car bearing registration KL Z 9635. PW1 went to the workshop of the accused for routine car service. The vehicle needed some minor patch work as well. According to PW1, the accused agreed to do the patch work at a cost of Rs.4,000/-. PW1 was initially not willing since another workshop owner had agreed to do the same for Rs.3,000/-. Therefore, after servicing the vehicle, he brought the vehicle back without doing the patch work. Thereafter, he had gone to Delhi. On 20.9.1994 at 10 am, PW2 contacted him over telephone and told him that the accused along with a mechanic came for taking the vehicle for doing patch work. PW1 was not willing to give the vehicle. Thereafter, the accused had a conversation with him over phone. During the conversation, the accused agreed to return the vehicle after completing the patch work within one week for an amount of Rs.4,000/-. Accordingly, he trusted the accused and directed his wife to pay Rs.2,000/-as advance and entrust the vehicle to the accused. PW2 also supported the version of PW1. After seven days, PW1 returned from Delhi and went to the workshop of the accused. However, the work was not completed and the accused needed some time to complete the painting work as well. He paid the balance amount of Rs.2,000/-and an additional sum of Rs.1,000/-to complete the work. The grievance of PW1 is that he went several times to the workshop to get back the car. According to PW1, the accused did not return the car. Thereafter, the accused started to threaten him. The accused handed over a bill for an amount of Rs.17,365/-and told him that the vehicle could be returned only on payment of the aforesaid amount. According to PW1, when he refused to pay the amount, the accused threatened to dismantle the vehicle. Thereupon, PW1 lodged a complaint to the Sub Inspector of Police. Since no action was taken, he again approached the Circle Inspector of Police and then the Superintendent of Police. According to PW1, when he refused to pay the amount, the accused threatened to dismantle the vehicle. Thereupon, PW1 lodged a complaint to the Sub Inspector of Police. Since no action was taken, he again approached the Circle Inspector of Police and then the Superintendent of Police. As directed by the Superintendent of Police, the crime was registered. He would say that he had an occasion to see the vehicle at Chittoor in Palakkad District. To prove his case, Ext.P3 certified copy of the bill, alleged to have been issued by the accused, was produced. 8. In this connection, it is to be noted that PW1 had filed O.S.No.704/1997 before the Munsiff's Court, Palakkad for recovery of the value of the car which was entrusted by him to the accused. The suit was initially dismissed by the Munsiff's Court. In the said suit, the accused had also raised a counter claim in which he had alleged that he had returned the vehicle after the work on the vehicle was complete, for which an amount of Rs.12,500/-was since due to him from PW1. He filed a counter claim for recovery of the said amount. Both the suit and counter claim were dismissed by the Munsiff's Court. Both the plaintiff and defendant filed appeals before the District Court, Palakkad as A.S.Nos.129/1999 and 135/1999 respectively. The appeals were heard and disposed of by Ext.P2 common judgment of the Additional District Judge, Palakkad. The learned Additional Judge held that the entrustment of the vehicle is true to facts and the plaintiff is entitled to recover the value of the vehicle entrusted. The suit was decreed and the counter claim of the accused was rejected. Challenging the aforesaid Ext.P2 judgment, the accused filed R.S.A.No.238/2004 before this Court. By virtue of order in I.A.No.488/2004 in R.S.A.No.238/2004 dated 10.3.2004, this Court granted interim stay on condition that the accused furnishes security to the satisfaction of the trial court for the decree amount within one month. By virtue of Ext.P2, PW1 was allowed to recover an amount of Rs.22,350/-as cost of the vehicle with interest at the rate of 6% per annum from the date of suit up to the date of decree and thereafter at the rate of 12% per annum till the date of realisation with cost throughout from the accused confirming the dismissal of counter claim by the trial court. 9. 9. The essential ingredients of criminal breach of trust are, (i) The accused must be entrusted with property or with dominion over it, and (ii) He must have dishonestly misappropriated the property or converted it to his own use or disposed of it in violation of any trust. 10. In order to bring home the charge of criminal breach of trust, there must have been an entrustment and thereafter misappropriation or conversion to one's own use or use in violation of any direction or contract and finally the misappropriation or conversion or disposal with a dishonest intention. A distinction must be made between a civil wrong and a criminal wrong. When a dispute between the parties constitutes only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed, although no case for taking cognizance of the offence has been made out. An act of breach of trust simpliciter involves a civil wrong of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well. Under the circumstances, the dishonest intention is an essential element to constitute an offence of criminal breach of trust. Thus, the difference between civil wrong and criminal wrong lies in the dishonest intention. The law is settled that if there is a flavour of civil nature, the same cannot be agitated by way of criminal proceeding. 11. To prove the genuineness of the transaction between the parties, it is essential to look at the correspondence between the parties and other admitted documents. Ext.P3 certified copy of the bill alone was produced to prove the transaction between the parties. Ext.P3 bill would show that the accused received an advance amount of Rs.5,000/-and the balance amount of Rs.12,350/-is due to the accused from PW1. All other evidence adduced by the prosecution is mainly based on the oral evidence of PWs.1 and 2. PW2 would say that she entrusted the vehicle to the accused as directed by PW1. PW1 would say that after his return from Delhi, when he approached the accused, he did not return the vehicle for an amount of Rs.4,000/-as initially agreed to between the parties for repairs although he paid an amount of Rs.5,000/-including an additional amount of Rs.1,000/-voluntarily. PW2 would say that she entrusted the vehicle to the accused as directed by PW1. PW1 would say that after his return from Delhi, when he approached the accused, he did not return the vehicle for an amount of Rs.4,000/-as initially agreed to between the parties for repairs although he paid an amount of Rs.5,000/-including an additional amount of Rs.1,000/-voluntarily. Ext.P2 is the certified copy of the judgment in favour of PW1. Ext.P2 judgment is stayed by the appellate court. Since the operation of Ext.P2 judgment is stayed by the appellate court, it is not correct to rely on Ext.P2 judgment to decide this case as contemplated under Sections 40 to 43 of the Evidence Act. It is true that the original of Ext.P3 bill was produced by PW1 before the civil court. He pursued the civil action and ultimately the suit was decreed in his favour. Both the trial court and appellate court basically relied on the oral evidence of PWs.1 and 2 and convicted the accused of the offence under Section 406 of the IPC. Though the breach of trust alleged is both a civil wrong and a criminal offence, there would be certain situations, where it would predominantly be a civil wrong and may or may not amount to a criminal offence. The present case is one of this type, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting having regard to the relevant documents including the original bill issued by the accused to PW1 at the time of entrusting the vehicle for repairs as also the correspondence between the parties subsequent to the alleged entrustment. 12. On going through the prosecution evidence, the prosecution failed to prove, in what precise manner, the accused had dealt with the car entrusted to him. True, it is for the accused to prove the same in view of Section 106 of the Evidence Act. However, Section 106 of the Evidence Act would not absolve the prosecution from the duty of proving that the crime was committed, even though, it was established that the accused had special knowledge on the point. In the case on hand, the prosecution was not able to trace the vehicle in question. No attempt was made to trace out the vehicle. In the case on hand, the prosecution was not able to trace the vehicle in question. No attempt was made to trace out the vehicle. There is no case for the prosecution that the accused dismantled the vehicle for the purpose of destroying the evidence. PW1 has not produced any document to prove the ownership of the vehicle. Invariably it is not necessary to prove ownership of the vehicle to prove an offence under Section 406 of the IPC. In case it is proved that the vehicle is entrusted to the accused the same itself is sufficient to attract the offence under Section 406 of the IPC. However the degree of proof in a criminal case and a civil case in this regard is different. There is nothing on record to show that the accused received the vehicle with the malafide intention of misappropriating the same or converting it to his own use. 13. On a perusal of the entire facts of this case, this Court is of the view that the same set of facts may give rise both to civil liability and a criminal prosecution. In the case on hand, essential ingredients of the offence to prove that the accused misappropriated the property or disposed of that property in violation of such trust are conspicuously absent. 14. In Jaswantrai Manilal Akhaney v. State of Bombay [ AIR 1956 SC 575 ], the Apex Court held in paragraph 12 of the judgment that, if there is no mens rea, or if the other essential ingredients of an offence are lacking, the same facts may not sustain a criminal prosecution, though a civil action may lie. In the case on hand, PW1 initiated civil case and the civil case was decreed by virtue of Ext.P2 judgment. The same is pending in appeal before this Court. Under the circumstances, the prosecution initiated on the strength of Ext.P3 copy of the bill produced in the civil case is not sufficient to prove the offence under Section 406 of the IPC beyond doubt. The civil case is decided based on preponderance of probability whereas the criminal case is decided based on proof beyond doubt. The prosecution has not succeeded in proving the offence under Section 406 of the IPC beyond doubt. This case is predominantly civil in nature. The civil case is decided based on preponderance of probability whereas the criminal case is decided based on proof beyond doubt. The prosecution has not succeeded in proving the offence under Section 406 of the IPC beyond doubt. This case is predominantly civil in nature. It is incorrect to decide a criminal case based on a judgment of a civil court alone. In this case, the relevancy of civil court judgment does not arise for consideration in view of the stay order issued by this Court in appeal. It is a fact that PW1 resorted to civil proceedings and the civil court granted decree in his favour. 15. As noted above, both the trial court and appellate court failed to consider the factual and legal controversy in its proper perspective in accordance with the evidence on record. Therefore, this is a fit case in which interference in revision has become absolutely necessary. Hence the judgment of conviction and sentence as against the revision petitioner/accused stands set aside. 16. In view of the foregoing discussion, this criminal revision petition is allowed. The revision petitioner/accused is found not guilty of the offence under Section 406 of the IPC and he is acquitted thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. If any fine amount is deposited during the pendency of this revision by the revision petitioner/accused, pursuant to the interim order passed by this Court, the same shall be refunded to the revision petitioner/accused in accordance with rules. Pending applications, if any, stand disposed of.