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5. Both the Institutes were in strategic alliance and IMM was using IIPM brand name in its marketing campaigns by providing a link of IIPM website on its website and showcasing its strategic alliance with IIPM. Post the execution of MCA, IIPM and IMM launched a new IMM-MOYD Programme in 2012 and IMM provided letter heads with its logos to IIPM for the purpose of admissions and provisional fees acknowledgement receipts. As per the agreed arrangement, IIPM paid an advance of Rs. 25 lacs to IMM in its bank account and on receipt of fees amount equivalent to Rs.35.70 lacs, IIPM was to retain the remaining amount of Rs.10.7 lacs as 30% fees and pay IMM Rs.25 lacs as further advance and so on. Bank statement of IIPM would reflect the transfer of Rs. 25 lacs to IMM on 07.08.2012.

13. It was urged that post execution of the LOI, IIPM and IMM entered into an agreement and executed the MCA on 01.01.2012, the essence of which was an exclusive strategic alliance whereby IIPM was to render its services for running the Business School by providing students etc. as mentioned in the MCA as a support institution and the arrangement was for a mutual benefit. Pertinently, it was provided in Clause 10 of MCA that IMM B-School could be marketed as IIPM CHE supported institution during the term of MCA and Clause 13 stipulated that for the services rendered under the agreement, IMM will pay IIPM CHE 30% of the total fees collected. It was thus fraudulently and deliberately misrepresented before the learned CMM that Respondent No.2 was induced or enticed by IIPM to enter into the LOI/MCA with an assurance of profit worth several crores. In terms of the MCA, entered into after several rounds of discussions and negotiations, IIPM launched a new programme IMM-MOYD in 2012 and for this purpose, IIPM was provided receipts on letter heads of IMM. As per the agreed course of action IIPM paid an amount of Rs.25 lacs to IMM as advance and on receipt of fees from students equivalent to Rs. 35.70 lacs, IIPM was to retain the remaining amount of Rs.10.70 lacs as 30% fees, payable to IIPM. IMM was non-compliant with its obligations under the MCA and in breach of its terms but instead of remedying the breaches and refunding the outstanding amounts to IIPM, IMM not only illegally terminated the MCA on 16.05.2014 but also lodged a false, frivolous and malicious complaint against IIPM and other accused persons.

50. It was alleged in the complaint that IIPM has misappropriated the amounts owed to IMM towards rentals and water and electricity charges for the property, leased out to IIPM, without disclosing the true and correct transaction between the parties. When the LOI was executed on 11.03.2011, it was agreed that IIPM would pay earnest money/advance payment to IMM. Under Clause 5, IMM agreed to refund twice the amount paid by IIPM, if IMM failed to execute the agreement contemplated by the parties to carry out the education programmes as a part of the strategic alliance, within 3 months and similarly, IMM could forfeit the said amount if IIPM failed. IMM admittedly failed to execute the agreement within the stipulated time of 3 months and hence, became liable to refund twice the amount of Rs. 4.8 crores which IIPM had paid as advance payment. Initially, IMM delayed the payment on one pretext or the other but finally approached IIPM and offered use of 4th and 5th Floors of its property at Qutub Institutional Area and lease deed was executed, for which Rs. 4.8 crores were the security deposit. Thus, even when the MCA was executed on 01.01.2012, IMM owed Rs.9.6 crores to IIPM, a fact concealed in its application under Section 156(3) Cr.P.C. This stand of IIPM is also supported by the e-mail dated 10.05.2019 sent by Respondent No.2 to the Dean of IIPM offering to rent out the space on the two floors and authorising IIPM to collect the rentals. It was also stated that as and when IMM returned the money, IIPM would cease to have any right to occupy the property. Thus, there is no misappropriation and as far as civil liability is concerned, suit filed by IMM for possession is pending before this Court and will be decided on its own merit. Relevant part of the e-mail is extracted hereunder for ready reference:-

52. The essential ingredients of the offence are that the accused must be entrusted with the property or dominion over it and the person so interested must use that property or the accused must dishonestly use or dispose that property. "Entrustment" is thus pivotal to constitute an offence under Section 405 IPC. Under the MCA both IIPM and IMM had mutual obligations to conduct the education programmes and courses and had assigned roles. Any breach of the contract was subject to arbitration, which IMM never invoked. IIPM marketed and advertised under the banner of IMM as that was the agreed term under clause 10 of MCA. IIPM was entitled to a specified share in the fees collected from students and pay advance to IMM under Clause 13 of MCA, which provided a methodology by which IMM was to pay to IIPM 30% of the total fee collected and in pursuance thereto, IIPM did advance Rs.25 lacs to IMM and only retained the share of fee, which it could legitimately do and no offence under Section 405 IPC is made out. Learned CMM was influenced by the allegations of the complainant that many students had been victimised by the actions of IIPM. This, in my view, was a factually incorrect observation and was made without any material on record and oblivious of the result of the investigation by EOW as brought forth in the ATRs. It is stated in the second ATR that during investigation, notices dated 14.07.2020 were sent to all the 8 students mentioned by IMM, to seek their versions, followed by reminder notices. However, out of total 8 students, only 3 students responded. One of the 3 students stated that he had cancelled the admission on account of the demise of his father and the second one informed that the cancellation was on account of the change of the programme to 2 year course instead of the applied 3 year course. Only one of the 3, stated that he was given admission in IIPM in NOIDA Campus while he wanted the same in IMM and this cannot be given much credence for the simple reason that a student was obviously unaware of the internal arrangement between IIPM and IMM that the Business School was to operate as IIPM CHE support institution.