Case: Ashim K. Roy Vs. Bipin Bhai Vadilal Mehta

should be exercised to see that the process of law is not abused or misused. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 , a three-Judge Bench of this Court while considering the exercise of power under Section 561-A of the Code (predecessor for Section 482) held as follows :- "It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice....... It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice......... Cases may also arise where the allegations in the First Information Report or the complaint, even it they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person." 19. We are firmly of the view that the above observations with all fours apply to the facts of this case in the light of the extracts given above from the complaint itself. The law laid down by this Court in R.P. Kapurs case has stood the test of time and held the field for more than three decades. This Court has applied the above ruling wherever the facts warranted the application. Very recently in State of U.P. v. O.P. Sharma, (1996) 7 SCC 705 , again a three-Judge Bench of this Court quoted with approval the following passage from the State of Bihar v. Rajendra Agrawalla, (1996) 8 SCC 164 : 1996(1) RCR (Crl.) 530 : "It has been held by this Court in several cases that the inherent power of the Court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, it such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out." 20. In fairness to the High Court, we must also set out the reasoning of the High Court on this aspect. The High Court rightly observed :- "Reading the complaint and other material on record it appears that even according to the complainant the loan was advanced on 13.11.1982 by Sayaji Industries Limited to Santosh Starch Products and the Santosh Starch Products are alleged to have advanced the loan to the accused on the same day i.e. on 13.11.1982 and this, according to him, is an offence constituting both criminal breach of trust and conspiracy. Reading the requirement of Section 409 it is clear that proof of entrustment of money is a condition precedent. The ingredients of offence under Section 409 of IPC are to be found in the definition clause of "criminal breach of trust" in Section 405 of IPC. It is, therefore, necessary for the complainant to prove the entrustment of property or dominion over it and in the second instance "dishonest misappropriation" or "conversion to the accused own use" of the property concerned. It is well settled that the dishonest use or disposition of the property in question in violation of any direction of the law prescribing the mode in which the trust is to be discharged or of any legal contract, express or implied, which is made touching the discharge of such trust, or wilfully suffering of any person to do so also constitute the offence of "Criminal Breach of Trust". Now, upon reading the complaint, it becomes clear that it is the specific case of the complainant that the loan was advanced on 13.11.1982 by Sayaji Industries Limited to Santosh Starch Products alleged to have advanced the loan to the accused on the same day and thus, according to him, is an offence constituting of both criminal breach of trust and conspiracy. This, in my view, does not amount in law into an offence under Section 409 as the ingredients of Section 409 are not attracted. For attracting the provisions of Section 409 one has to allege that the breach of trust is committed by public servant or by banker, merchant or agent, broker or attorney. Reading the complaint, it is nowhere stated that the accused occupy any of these positions. In absence of these particulars in the complaint, in my view, the complainant has prima facie failed to make out the case against the petitioners. Similarly, it is clear from reading the complaint and other material on record that the complainant has failed to make out any case under Section 120-B or 409 of IPC." 21. We are in agreement with the view expressed above by the High Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]17. A cursory reading of the complaint, in particular the extracts especially the underlined portion as given above, will clearly show that the contesting respondents (accused) will come into picture only after the liability contemplated under the modified memorandum of understanding was discharged. In other words, the accused respondents 1 and 2 could have come into picture only after the transactions complained of had taken place and as noticed above it was the father of the first respondent, who was the Managing Director of Sayaji Industries Ltd. when the transactions in question took place. The respondents Nos. 1 and 2 could have played no part in that transaction as they were not even ordinary Directors at that time in M/s. Sayaji Industries Ltd. Therefore, the allegations made in the complaint even if it is taken in its entirety still they do not constitute an offence either under Sections 120-B and 409 IPC. In the circumstances, it would be manifestly unjust to allow the proceedings in the criminal complaint to be proceeded with against respondents 1 and 2.18. In this connection, though it is very well settled that the power under Section 482 Cr.P.C. should be sparingly invoked with circumspection, this Court consistently has taken the view that it should be exercised to see that the process of law is not abused or misused.In fairness to the High Court, we must also set out the reasoning of the High Court on this aspect. The High Court rightly observedthe complaint and other material on record it appears that even according to the complainant the loan was advanced on 13.11.1982 by Sayaji Industries Limited to Santosh Starch Products and the Santosh Starch Products are alleged to have advanced the loan to the accused on the same day i.e. on 13.11.1982 and this, according to him, is an offence constituting both criminal breach of trust and conspiracy. Reading the requirement of Section 409 it is clear that proof of entrustment of money is a condition precedent. The ingredients of offence under Section 409 of IPC are to be found in the definition clause of "criminal breach of trust" in Section 405 of IPC. It is, therefore, necessary for the complainant to prove the entrustment of property or dominion over it and in the second instance "dishonest misappropriation" or "conversion to the accused own use" of the property concerned. It is well settled that the dishonest use or disposition of the property in question in violation of any direction of the law prescribing the mode in which the trust is to be discharged or of any legal contract, express or implied, which is made touching the discharge of such trust, or wilfully suffering of any person to do so also constitute the offence of "Criminal Breach of Trust". Now, upon reading the complaint, it becomes clear that it is the specific case of the complainant that the loan was advanced on 13.11.1982 by Sayaji Industries Limited to Santosh Starch Products alleged to have advanced the loan to the accused on the same day and thus, according to him, is an offence constituting of both criminal breach of trust and conspiracy. This, in my view, does not amount in law into an offence under Section 409 as the ingredients of Section 409 are not attracted. For attracting the provisions of Section 409 one has to allege that the breach of trust is committed by public servant or by banker, merchant or agent, broker or attorney. Reading the complaint, it is nowhere stated that the accused occupy any of these positions. In absence of these particulars in the complaint, in my view, the complainant has prima facie failed to make out the case against the petitioners. Similarly, it is clear from reading the complaint and other material on record that the complainant has failed to make out any case under Section 120-B or 409 of IPC.We are in agreement with the view expressed above by the High Court.