HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CRIMINAL PETITION Nos. 1427 and 1430 of 2010 DATED 12th October, 2011 BETWEEN B.Yella Seshaiah ……Petitioner in Crl.P.No. 1427 of 2010 B.Rajender …..Petitioner in Crl.P.No. 1430 of 2010 and The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of AP, Hyderabad and anr ……Respondents in both Crl.Ps. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CRIMINAL PETITION Nos. 1427 and 1430 of 2010 COMMON ORDER: These two criminal petitions can be disposed of by this common order in as much as both the petitioners seek to quash the very same crime registered against them. These Criminal Petitions under Section 482 Cr.P.C. are filed seeking to quash Crime No. 40 of 2010 on the file of the Station House Officer, Police Station, Malkajgiri, Cyberabad, Ranga Reddy District. The second respondent-complainant lodged a complaint with the Inspector of Police, Malkajgiri Police Station, Malkajgiri, Hyderabad. In the said complaint it was stated that pursuant to the surprise check conducted by the Anti Corruption Bureau in the office of the second respondent on 6.1.2009, short remittance of Building Permission Charges to the tune of Rs.7,68,131/- for the period from 2005-06 to 2007-08, HUDA development charges amounting to Rs.14,32,923/- and Tap Connection Charges amounting to Rs.3,58,000/- for the period from 2005-06 to 2007-08 were found noticed. Thereafter, the office of the second respondent issued notice to all the applicants seeking Building Permission and Tap Connection, who were said to have short remitted the amount through bank challans. Pursuant thereto, an amount of Rs.9,26,735/- towards Building Permission fee and HUDA charges and Rs.3,50,000/- towards Tap Connection charges were recovered from the applicants who have earlier made short remittance. The office of the second respondent once again issued notice to all the applicants who in the first instance made short remittance of Building Permission and Tap Connection charges. Pursuant to the same, some of the applicants submitted that they had given the amounts in cash to one Mr. B.Rajender (A.1), a licensed Surveyor in order to remit the same in the Municipal Office along with application by way of bank challans while some other applicants have informed that they had paid the amounts in cash to one Mr.Gupta (A.2), a resident of Malkajiri for remitting the same in the Municipal Office. Both the said named persons are not the employees of the office of the second respondent circle office. After getting sanction from the Commissioner, Greater Hyderabad Municipal Corporation, the second respondent lodged a complaint with the police. The said complaint was registered as FIR No. 40 of 2010 against the petitioners (A.1 and A.2) for the offences punishable under Sections 406 and 409 IPC. Heard both sides. Perused the case file. The learned Counsel for the petitioners submitted that the petitioners are in no way connected with the alleged loss of revenue to the office of the second respondent and without prima facie evidence, the complaint was registered against them. It is submitted that even if the contents of the complaint are accepted to be true for the sake of argument, but not otherwise, still the allegations levelled against the petitioners do not attract the ingredients of Sections 406 and 409 IPC for the reason that the complainant had never handed over any property to them to allege that their acts would come within the purview and ambit of Sections 406 and 409 IPC. It is further submitted that A. 2 merely acted as an agent and he remitted the short-remitted amounts to the Department afterwards. It is thus argued that the petitioners have been falsely implicated in the alleged offence. While dealing with a petition under Section 482 of the Code of Criminal Procedure, where the prayer is to quash the complaint, this court is only to read the complaint including the documents annexed therewith and only see whether, on the allegations made therein, the alleged offences have been committed. The court is to see whether on taking the allegations and the complaint as they are, without adding anything therewith or subtracting anything therefrom, the alleged offences are made out. If the alleged offences are prima facie made out, then this court would not be justified in quashing the proceedings pending before the trial court. It is also well established that the powers under Section 482 of the Code of Criminal Procedure should be used very sparingly to prevent abuse of the process of the court. There is no dispute as to the ingredients in order to constitute a criminal breach of trust, namely, (i) entrusting a person with property or with any dominion over property (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged or (ii) of any legal contract made touching the discharge of such trust. The essential thing to be proved in case of criminal breach of trust is whether the accused was actuated by dishonest intentions or not. As the question of intention is not a matter of direct proof, the Courts have from time to time laid down certain broad tests which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea to commit the offence. So in cases of criminal breach of trust the failure to account for the money proved to have been received by the accused or giving a false account as to its use is generally considered to be a strong circumstance against the accused. We should however not lose sight of the principle and make a universal formula of what is after all only an indication of or a piece of evidence pointing to dishonest intention When Section 405 which defines "criminal breach of trust" speaks of a person being in any manner entrusted with property, it does not contemplate the creation of a trust with all the technicalities of the law of trust. It contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain event. The person who transfers possession of the property to the second party still remains to be the legal owner of property and the person in whose favour possession is so transferred has only the custody of the property to be kept or disposed of by him for the benefit of the other party, the person so put in possession only obtaining a special interest by way of a claim for money advanced or spent upon the safe keeping of the thing or such other incidental expenses as may have been incurred by him. The building permission applicants when they handed over the money to the accused parted with possession, only for the petitioners is to deposit in the bank or with the Municipal Corporation. That was not so done. Thus prima facie, the petitioners before us have committed the offence punishable under Section 406 of the Penal Code. It is well settled that when a person misappropriates to his own use the money which does not belong to him, such misappropriation is dishonest even though he intended to restore it at some future point of time. Such dishonest is an essential ingredient in the offence of criminal breach of trust under Section 409 IPC and such dishonesty may be inferred from the surrounding circumstances and the terms upon which the accused had the money in his hands. Trite to State, even if there is an iota of doubt on that aspect, this Court should take note of the changing times and the new devices or methodologies adopted by persons to deceive the public and the interpretation of the provisions of the Code should meet the new challenges aforesaid and should be in accordance with the changing pattern of life. It was suggested that the offences committed, as in the instant case, are "social crimes" or "public crimes" or "repugnant to public policy and public welfare". The authoritative decision of the House of Lords in Shaw v. Director of Public Prosecutions [1962 ] AC 220 is a pointer in casting a duty on constitutional courts --the High Court and the Supreme Court of India--to take into account the gravity of the fraud committed by unscrupulous persons in luring the public. The charge is that the petitioners have indulged in short remittance of building permission and tap connection charges supposed to be remitted to the second respondent Municipal Office. Admittedly, the petitioners have not remitted the full amounts to the Municipality as soon as they were collected from the applicants. As such the amounts which fell short, pertained to the second respondent Municipality. Thus the petitioners have caused loss of revenue to the Municipality by diverting to their personal gain. In those circumstances, the second respondent has certainly locus standi to initiate appropriate proceedings against the persons who caused such loss of revenue to the Municipality. To establish the criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misappropriation by the accused of the property entrusted to them or over which they have domain at the stage of investigation. In the present case, the matter is still at the stage of investigation and at this stage this Court is not inclined to scuttle the investigation of the case. For the foregoing discussion, I do not see any reason to exercise the inherent power conferred under Section 482 Cr.P.C. to quash the crime in FIR No. 40 of 2010. The Criminal Petitions are therefore dismissed. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 12TH OCTOBER, 2011. Msnro