(i) In the petition filed under Section 329 Cr.P.C, there was no allegation in the final report that the term loan was obtained by submitting any forged document. Admittedly, 10 wind electric generators for the Wind Farm were purchased from M/s. Siemens Limited, through proper invoices containing the serial numbers of the generators. It is also not in dispute that all the ten generators, thus purchased from M/s.Siemens Ltd., were installed at the wind mill farm of the first petitioner in Palladam Taluk. Though it is true that the wind electric generators were hypothecated to IFCI by a deed of hypothecation dated 06.06.1995, the first petitioner never parted with the possession of the same and the possession and enjoyment of the same was with the first petitioner company, whereas IFCI had been given only a lien/charge over those generators. Neither the ownership nor possession of the movable property passed on to the creditor, namely IFCI. Hence, the contention that the said wind electric generators were entrusted to IFCI and dominion over them was given to IFCI by the first petitioner, is without any legal basis. Therefore, there is no prima facie material to show that there was any criminal breach of trust, as there must be an entrustment of the property or entrustment of dominion over the property. Since the first petitioner company was the owner of the 10 generators allegedly removed from its Wind Farm, the preparation of the invoices and delivery challans for the removal of the same from the Wind Farm, even if not true, will not come under the definition of forgery as defined in Section 463 I.P.C. Creating some false delivery challans and invoices, if any, with regard to one's own movable property hypothecated to another will not attract the definition of forgery, even though it may amount to breach of conditions of the hypothecation deed. Therefore, the petitioners should not be asked to face trial for the alleged offences under Section 409, 467 and 471.
