Asoke Basak vs State Of Maharashtra & Ors

3. Briefly stated, the facts, necessary for disposal of the present appeal, may be stated thus:

4. On 2nd March, 2001 respondent No.2 deposited an amount of `5 lakhs with MSEB as security deposit in lieu of bank guarantee to be used for tenders to be filed by respondent No.2 from time to time in the future. The conditions of tender and supply provided that:

Certain disputes arose between MSEB and respondent No. 2. On 16th September 2003, respondent No. 2 informed MSEB that they were no longer interested in participating in any tenders which may be floated by MSEB and sought immediate refund of the said amount of `5 lakhs.

5. The Chief Engineer (Distribution), MSEB vide his letter dated 6th March 2004, informed respondent No.2 that the deposit of `5 lakhs had been adjusted by MSEB against the dues payable by respondent No.2 to MSEB.

6. On receipt of the said communication, on 29th June 2004, respondents No.2 to 4 filed Complaint No.1881 of 2004 before the Court of the Judicial Magistrate, First Class, Pune against the appellant and other senior officials of the MSEB under Sections 405 and 409 read with Section 34 of the IPC. The Judicial Magistrate, First Class, Pune took cognizance and issued summons against all the accused named in the complaint.

17. It is manifest from a bare reading of the afore-extracted paragraphs that the gravamen of the complaint against the appellant is that the said amount of `5 lakhs was in the dominion of the accused, which was entrusted to MSEB for a specific purpose and, therefore, by adjusting the said amount for some other purpose, the accused dishonestly and wilfully, with common intention, deprived the complainant the use of the money and committed offence of breach of trust in terms of Section 405 read with Section 409 IPC.

24. Thus, in order to attract Section 34 of the IPC, the complaint in question must, prima facie, reflect a common prior concert or planning amongst the appellant and other accused. Having carefully gone through the complaint, we are of the view that it does not reveal any pre-concert or pre-planning whereby all the accused had decided to misappropriate the said amount. It is pertinent to note that MSEB, in whose coffers the said amount was credited, has not been arraigned as an accused in the complaint. Be that as it may, having come to the conclusion that the ingredients of Section 409 IPC are not satisfied against the appellant, the question of his acting in concert with others does not arise. We are, therefore, convinced that Section 34 IPC is not attracted against the appellant.

25. In light of the above-noted conclusions, we are of the opinion that no prima facie case has been made out against the appellant in respect of offence under Section 409 read with Section 405, even with the aid of Section 34 of the IPC. Therefore, it was a fit case where the High Court should have exercised its powers under Section 482 of the Code by quashing the complaint against the appellant. 1

26. Resultantly, the appeal is allowed; the impugned order in relation to Criminal Application No.2854 of 2004 is set aside and the order of the Magistrate taking cognizance against the appellant in Complaint No.1881 of 2004 is quashed.

OCTOBER 8, 2010 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1980 OF 2010 (Arising out of S.L.P. (Crl.) No. 7338 of 2007) ASOKE BASAK -- APPELLANT (S) VERSUS STATE OF MAHARASHTRA & ORS. -- RESPONDENT (S) O R D E R 1 In the judgment pronounced on 8th October, 2010, in paragraph 13, the words, "` 5 lacks"