IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 229 of 2010. Judgment Reserved on:27.4.2011 Date of Decision: May 31,2011. _______________________________________________ Man Chand Thakur. …Petitioner. Versus. Subhash Pathania. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?. Yes. For the petitioner: :Mr. G.D.Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. For Respondent. :Mr.Vijay Verma, Advocate. Dev Darshan Sud, J. The petitioner challenges the order passed by the learned Judicial Magistrate summoning the petitioner herein for facing trial for offence under Section 500 I.P.C. Respondent-Subhash Pathania has filed a complaint on the ground that the petitioner herein who was respondent before the trial court has made false allegation against him stating that he has obtained a fake L.L.B. degree. 2. After recording preliminary evidence, the learned Court issued process to the respondent and called upon him to face trial for the offences. Whether reporters of the Local papers are allowed to see the judgment. yes. 2 3. The grievance in this petition is that the reading of the complaint as also the material accompanying it has not in any manner make out any offence against the petitioner and the continuous of the proceeding is nothing but an abuse of the process of the Court. It is also submitted that summoning order Annexure:P-3 issued on 15.7.2010 and the accusation made thereafter even if the entire material on the record is considered without putting it to the test of cross-examination, no offence is disclosed. 4. Notice of this petition was issued to the respondent and records called for. I have heard learned counsel for the parties and have also gone through the record. 5. Learned counsel for the petitioner, places reliance on the judgment of the Supreme Court in S.W.Palanitakar and others Vs. State of Bihar and another, (2002) 1 SCC 241 to urge that the ingredients of the offence having not been made out either in the complaint or in the preliminary evidence, it was a clear abuse of the process of Court. The Court held: 18. Cautioning against issuing of process so that it should not be an instrument in the hands of the private complainant as vendetta to harass the person needlessly, this Court in Punjab National Bank & Ors. v. Surendra Prasad Sinha, [1993] Supp. (1) SCC 499 has this to say in para 6 (SCC pp 504-05, para 6) "6. It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the magistracy to find whether the accused concerned should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or 3 the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint "against all the appellants without any prima facie case to harass them for vendetta.” 19. Similarly in Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors., [1988] 1 SCC 692, this Court has stated that: (SCC P.695, para 7) "7 .The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage." 20. Turning to the facts of the case, there is nothing either in the complaint and/or in the sworn statements of the complainant and the three witnesses that any property was entrusted to any of the appellants at all or the appellants had domain over any of the properties of respondent no. 2 which 4 they dishonestly converted to their own use so as to satisfy the ingredients of Section 405 IPC punishable under Section 406 IPC. Further the agreement also did not require entrustment of any property to the appellants. Taking the complaint and the statements of the witnesses as they are, it cannot be said even prima facie, that the appellants committed any offence punishable under Section 406 IPC, since the ingredients of that offence were not satisfied. Hence the learned Magistrate committed a serious error in issuing process against the appellants for the said offence. Unfortunately, the High Court also failed to correct this manifest error. (Pp.249-250) 6. Learned senior counsel then urges that the ingredients of the offence not having been established, it is a fit case in which powers under Section 482 Cr.P.C. are exercised for quashing the entire proceedings. He places reliance on the decision of the Supreme Court in Vir Prakash Sharma Vs. Anil Kumar Agarwal and another,(2007) 7 SCC 373. The Court held: 7. The principle underlying exercise of jurisdiction by the High Court under Section 482 of the Code of Criminal Procedure is now well-settled viz. that the allegations contained in the complaint petition even if given face value and taken to be correct in its entirety do not disclose an offence or not is the question. 8. The dispute between the parties herein is essentially a civil dispute. Non-payment or under-payment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Indian Penal Code can be said to have been made out in the instant case. Section 405 of the Indian Penal Code reads, thus: “ 405. Criminal breach of trust-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in 5 violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust”. Neither any allegation has been made to show existence of the ingredients of the aforementioned provision nor any statement in that behalf has been made.” (Pp.375-376) 7. Lastly, reliance is placed on the decision of this Court in Cr.MMO. No. 4 of 2008 titled Atul Sood Vs. State of H.P. and others, where this Court quashed the F.I.R. and subsequent proceedings thereto relying upon the decisions of the Supreme Court in K.M. Mathew V.State of Kerala, 1992 Cri.LJ 377, Vir Parkash Vs. Anil Kumar Agarwal and another, (2007) 7 SCC 373, S.W.Palanitkar and others V. State of Bihar and another, (2002) 1 SCC, 241, Ram Biraji Devi and another V.Umesh Kumar Singh and another, (2006) 6 SCC 669 and Jaswantrai Manilal Akhaney V. The State of Bombay, AIR 1956 Vol.43, 575. 8. I have carefully considered the submissions made by the learned senior counsel. 9. From the record what I find is that there document Ext.CW1/C which is purportedly addressed by the petitioner herein to the Labour Commissioner, H.P. Shimla stating that the respondent- Subhash Pathania holds a fake L.L.B. degree. In these circumstances, it cannot be said that prima facie no allegation has been made by the petitioner herein against the respondent which requires adjudication by the Court. 6 10. In these circumstances, it cannot be said that no case is made out against the respondent but at the same time, I do not express any finality on the opinion of this letter and its impact on the reputation of the petitioner herein for the reasons that any observation made by me would be taken as a binding observation by the learned trial Court. The petition is dismissed. No order as to costs. (Dev Darshan Sud), Judge. May 31, 2011(R)