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[21] The allegations in the complaints are that the aircraft and the engines fitted therein belong to NEPC India and that a charge was created thereon by NEPC India, in favour of IOC, by way of hypothecation to secure repayment of the amounts due to IOC. The terms of hypothecation extracted in the complaint show that the ownership and possession of the aircraft continued with NEPC India. Possession of the aircraft, neither actual nor symbolic, was delivered to IOC. NEPC India was entitled to use the aircraft and maintain it in a good state of repair. IOC was given the right to take possession of the hypothecated aircraft only in the event of any default as mentioned in the Hypothecation Deed. It is not the case of the IOC that it took possession of the aircraft in the exercise of the right vested in it under the Deed of Hypothecation. Thus, as the possession of the aircraft remained all along with NEPC India in its capacity as the owner and the Deed of Hypothecation merely created a charge over the aircraft with a right to take possession in the event of default, it cannot be said that there was either entrustment of the aircraft or entrustment of the .
dominion over the aircraft by IOC to NEPC India. The very first requirement of Section 405, that is the person accused of criminal breach of trust must have been "entrusted with the property" or "entrusted with any dominion over property" is, therefore, absent".
18. A similar view was taken by this Court in H P of Financial Corporation versus Bindu Tyre Retreading and Vulcanizing Works and Ors 2011 Criminal Law Journal 269 and it was held:-