APPELLANT SIDE

THE COUNCIL SEEKS PERMISSION TO APPROACH THE PODIUM.

MUCH OBLIGED YOUR LORDSHIP/ LADYSHIP.

THE COUNCIL SEEKS PERMISSION TO BEGIN WITH THE STATEMENT OF

JURISDICTION
JURISDICTION
The appeal before the Hon’ble High Court of Rashtradesh is maintainable under the
criminal appellate jurisdiction conferred by Section 374(2) of the Code of
Criminal Procedure, 1973 (or Section 420 of the Bharatiya Nagarik Suraksha
Sanhita, 2023, grants the right to appeal to the High Court for any person convicted
of a sentence of imprisonment exceeding seven years on a trial conducted by a
Sessions Judge or an Additional Sessions Judge, or on a trial by any other court where
a sentence of imprisonment exceeding seven years has been passed. This section was
last amended in 1978. This provision allows any person convicted by a Magistrate to
appeal to the appropriate appellate court, which, in cases involving serious offences
and sentences exceeding one year, lies before the High Court. Additionally, the High
Court derives supervisory jurisdiction under Article 225 of the Constitution of
India, which states "Jurisdiction of existing High Courts," essentially freezes the
jurisdiction and powers of High Courts as they were before the Constitution's
implementation. This means the existing High Courts continue to operate with the
same jurisdiction and legal framework they had before the Constitution came into
effect. enabling it to oversee the functioning of subordinate courts to ensure that
justice is not compromised due to procedural irregularities or misapplication of law.
Therefore, the present appeal by the appellants—challenging the conviction and
sentence imposed by the Chief Metropolitan Magistrate—falls squarely within the
jurisdiction of the High Court, both on statutory grounds and under the Constitution.
FACTS OF THE CASES ARE
The case concerns the alleged misappropriation of a sculpture titled “Vox Populi”
created by artist Aarav Mehta, which was loaned informally, via WhatsApp and
emails, to Galerie Zephyr for exhibition. After the event, the sculpture was not
returned and was later found listed for sale internationally under a different name by
art dealer Danish Roy. Rhea Kapoor, the gallery’s founder, was convicted under
Section 316 of the Bharatiya Nyaya Sanhita (BNS) for criminal breach of trust. She
argues that there was no formal entrustment, no written contract, and no criminal
intent on her part. The transaction was handled by staff and interns, and any
misplacement was unintentional. Kapoor challenges the admissibility of digital
communications without proper certification and asserts that the trial suffered from
procedural lapses. She seeks to overturn her conviction, asserting misuse of criminal
law for what is essentially a civil dispute.
 APPELLANT SIDE

IF YOUR LORDSHIPS ARE WELL VERSED WITH THE FACTS, THEN I

WOULD LIKE TO PROCEED WITH ISSUE 1
ISSUE 1: Whether entrustment without a formal written agreement constitutes criminal
breach of trust under Bhartiya Nyaya Sanhita 2023?
1. Absence of Formal Contract Invalidates Criminal Entrustment Allegation:
The appellant respectfully submits that the conviction under Section 316 of the Bharatiya
Nyaya Sanhita, 2023, is unsustainable in law and fact, as the essential element of legal
entrustment — the foundation of criminal breach of trust — is completely absent. Therefore,
the essential requirement of legal entrustment—with clarity of terms, scope, and obligation
—is not satisfied under Section 316 of the Bharatiya Nyaya Sanhita, 2023 (equivalent to
Section 405 IPC - Criminal Breach of Trust).
Case Law:
🔹 Krishna Kumar v. Union of India, (2019) – The Supreme Court held that mere informal or
oral understandings without definitive terms do not automatically create fiduciary or
criminal obligations unless supported by a binding agreement.
🔹 Dalip Kaur v. Jagnar Singh, (2009) 14 SCC 696 – The Court emphasized that mere breach
of promise or civil wrong does not amount to criminal breach of trust unless clear
dishonest intent at the inception is proved.
The appellant contends that the WhatsApp messages lack clarity, are informal in tone, and
do not define entrustment terms or any condition for return, ownership rights, or liability,
making it a civil dispute, not a criminal offence.
2. Civil Breach ≠ Criminal Breach Without Mens Rea:
The appellant argues that at best, this is a civil dispute of bailment or misdelivery, not
criminal breach of trust. No mens rea (dishonest intention at the time of entrustment) has
been proved beyond a reasonable doubt, as required under criminal law.
In the present case:
 Rhea Kapoor never benefited monetarily from the sculpture’s sale.
 She assured the artist of safe return, which indicates good faith.
 The intern, Ayaan Saxena, handled the post-exhibition logistics and was acquitted
due to lack of mens rea.
 The true beneficiary of the alleged misappropriation was Mr. Danish Roy, who has
a known history of dealing in unverified art.
Therefore, the conviction of Ms. Kapoor without any evidence of dishonest intent constitutes
a grave miscarriage of justice.
 APPELLANT SIDE

Case Law:
🔹 V.Y. Jose v. State of Gujarat, (2009) 3 SCC 78 – The Court cautioned against the
criminalization of civil disputes, stating that criminal breach of trust must involve
dishonest intention from the inception of the transaction.
3. Informal Industry Practice and Absence of Legal Codification:
Art industry frequently functions on informal arrangements, especially during exhibitions.
No law mandates a written contract for entrustment. Ms. Kapoor acted in accordance with
general gallery practice, and negligence in internal handling by staff/interns cannot be
elevated to criminal liability.
The forensic audit found systemic inventory issues, indicating procedural flaws, not criminal
intent. Moreover, Mr. Ayaan Saxena, the intern, admitted to handling packaging but was
acquitted, supporting that the misplacement was inadvertent.

4. Vicarious Liability Cannot Be Imposed Without Active Participation:

Appellant contends she cannot be held vicariously liable for the alleged actions of
subordinates unless direct involvement or conspiracy is proven.

NOW THE COUNCIL SEEKS PERMISSION TO PROCEED WITH ISSUE 2

ISSUE 2: Whether digital communications (e.g., WhatsApp chats, emails) are sufficient to
prove criminal entrustment and misappropriation under the Bharatiya Nyaya Sanhita?
The appellant most respectfully submits that informal digital communications such as
WhatsApp messages and emails, in the absence of a formal agreement or clear fiduciary
obligation, are insufficient in law to establish the offence of criminal entrustment and
misappropriation under Section 316 of the Bharatiya Nyaya Sanhita, 2023 (hereinafter
“BNS”).
I. Legal Standard under Section 316 BNS: Entrustment Must Be Legally Definable
Section 316 BNS, which mirrors the earlier Section 405 of the Indian Penal Code, requires:
 A valid entrustment of property,
 Dishonest misappropriation or conversion,
 And proof of mens rea from the beginning of the entrustment.
In the present case, there was no written agreement, bailment contract, or legal document
establishing the nature of the entrustment, the obligations of the appellant, or the terms of
return. The WhatsApp and email exchanges were informal, lacking essential details such
as duration of custody, liability, or ownership.
 APPELLANT SIDE

Case Law:
In Uma Shankar Gopalika v. State of Bihar [(2005) 10 SCC 336], the Hon’ble Supreme Court
held that criminal breach of trust requires clear allegations of entrustment supported by a
legally enforceable obligation. In its absence, the offence is not made out.
In V.Y. Jose v. State of Gujarat [(2009) 3 SCC 78], it was reiterated that mere failure to
return property or performance lapse does not imply criminal intent, unless a dishonest
intention from the outset is established.
II. Inadmissibility of Digital Evidence Under Section 65B of the Indian Evidence Act
The prosecution relied primarily on uncertified digital communications. However, under
Section 65B(4) of the Indian Evidence Act, for any electronic record to be admissible, it
must be accompanied by a certificate detailing:
 The manner of its production,
 Device details,
 Integrity of data.
Additionally, the Evidence Act, 1872, under Section 65B, lays down strict criteria for
the admissibility and reliability of electronic records. The WhatsApp chats submitted
lack proper certification under Section 65B(4), and are inadmissible in the absence of
original devices or unaltered metadata. Thus, these communications do not possess
the evidentiary strength required to support the conviction for a serious offense.
Treating such informal, non-binding communications as proof of entrustment and
misappropriation under criminal law would set a dangerous precedent, making every
casual digital exchange a potential trigger for criminal prosecution, especially in fields
like art, media, and startups, where formal agreements are often lacking.
Moreover, no financial gain accrued to the appellant from the alleged
misappropriation. The sale was traced to Mr. Danish Roy, a third-party art dealer. The
appellant had no prior knowledge of the transaction and cooperated with the
investigation, which is inconsistent with dishonest behaviour. Entrustment in criminal
law is not to be presumed from informal interactions. The appellant merely hosted an
exhibition, and the sculpture’s storage post-exhibition was part of an informal
understanding, not a fiduciary entrustment. In such cases, civil remedies such as
damages or breach of contract are the appropriate course.
In the above arguments and authoritative precedents, the appellant submits that:
 The absence of a formal agreement or fiduciary obligation precludes a finding of
entrustment under Section 316 BNS.
 The uncertified digital evidence is inadmissible and unreliable.
 There was no dishonest intent or personal gain.
 The matter, at most, constitutes a civil misunderstanding, not a criminal offence.
Therefore, the appellant humbly prays that the Hon’ble High Court set aside the
conviction and allow the appeal, upholding the principles of due process, fairness,
and the rule of law.
 APPELLANT SIDE

COUNCIL SEEKS PERMISSION TO PROCEED WITH ISSUE 3

ISSUE 3: Whether Rhea Kapoor can be held vicariously liable for acts done under her
gallery’s name by staff members or interns?

The appellant, Ms. Rhea Kapoor, most respectfully submits that she cannot be held
vicariously liable under criminal law for the alleged unauthorized acts committed by
interns or staff members at Galerie Zephyr. The conviction under Section 316 of the
Bharatiya Nyaya Sanhita, 2023 (BNS), is legally unsustainable in the absence of any
direct involvement, criminal intent, or statutory basis for vicarious liability in the
context of criminal breach of trust.
I. Vicarious Liability Not Recognized in Criminal Law Without Statutory
Mandate
It is a settled principle of criminal jurisprudence that vicarious liability has no place
in criminal law unless a statute explicitly provides for it. Criminal responsibility is
inherently personal, requiring both actus reus (the guilty act) and mens rea (the
guilty mind).
In Shri Ram v. State of Maharashtra [(1996) 4 SCC 602], the Hon’ble Supreme Court
held:
“Vicarious liability is unknown to criminal law unless the statute expressly provides
for it.”
The Bharatiya Nyaya Sanhita, 2023, under Sections 316 (criminal breach of trust)
and 317 (dishonest misappropriation of property), does not contain any provision
imposing vicarious criminal liability on directors, employers, or managers for the
independent criminal acts of their subordinates. Therefore, holding Ms. Kapoor liable
for the actions of an intern is not only legally unfounded but would also set a
dangerous precedent.
II. Absence of Mens Rea or Active Participation
To sustain a conviction under Section 316 BNS, it must be shown that the accused
was entrusted with property in any capacity and dishonestly misappropriated or
converted it to their use. There is no evidence that Ms. Kapoor had any criminal
intent or participated in the unauthorized sale or transfer of the sculpture “Vox
Populi.”
Similarly, in Sunil Bharti Mittal v. CBI [(2015) 4 SCC 609],
it was categorically held that an individual cannot be held criminally liable solely
based on their position or designation in an organization unless a specific act
attributable to them is proven with requisite mental intent.
In this case, Mr. Ayaan Saxena, the intern blamed for the misplacement, was
acquitted due to lack of mens rea. If the direct actor is found not guilty, it defies logic
and law to hold the gallery’s managing director vicariously liable without any
evidence of conspiracy or direction.
Sections and Procedural Gaps in Evidence
 APPELLANT SIDE

 Section 316 BNS: Requires proof of dishonest misappropriation of entrusted property.

Lacking here due to no personal entrustment to Ms. Kapoor.
 Section 317 BNS: For dishonest retention of stolen property, requires knowledge that
the property is stolen, which Ms. Kapoor did not possess.
 Section 65B, Indian Evidence Act: The digital evidence (emails, chats) was not
properly certified.

The principle of qui facit per alium facit per se, which means "He who acts through
another does the act himself", is a fundamental legal maxim of the law of agency. It is
a maxim often stated in discussing the liability of an employer for the act of an
employee in terms of vicarious liability." When a person in authority delegates duties
to subordinates, they cannot escape liability if such delegation leads to the
commission of a cognizable offence.

NOW THE COUNSEL SEEKS PERMISSION TO CALL MY CO-COUNSEL FOR

CONTINUING THE FURTHER ISSUES 4,5,6 AND PRAYER AS WELL.