# Ram Chandra Verma v. State of U.P. & Anr

- **Citation:** (2021) 8 ILRA 603
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-09
- **Case number:** Application U/S 482/378/407 No. 1144 of 2010
- **Bench:** Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-chandra-verma-v-state-of-u-p-anr-47279
- **Pages:** 12

## Headnote

Law-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal
Code-Section
406-quashing
of
entire criminal proceeding-criminal breach
of trust-an amount of Rs. 1.65,000/- was
entrusted
to
the
applicant
by
the
informant
for
the
fulfillment
of
his
obligation to supply the bricks to the
informant-he sold their bricks to others-
despite repeated requests neither the
bricks were supplied nor the money was
returned-in
this
way
money
was
misappropriated and converted to his own
use
by
the
applicant-complaint
filed
before the consumer forum was dismissed
on the score that the same is not
cognizable by the Forum-FIR, statement
u/s 161 prima facie discloses an offence of
604 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal
breach
of
trust-Hence,
no
illegality has been committed by the Court
below in either taking the cognizance or in
summoning the applicant.(Para 1 to 24)

B. If after perusal of the Chargesheet and
the case diary the magistrate has taken
cognizance and there is sufficient grounds
to proceed further and reasons for the
same has even not been recorded by the
magistrate the same will not vitiate the
cognizance and summoning order. Such
an order of issuing summons to the
acccused is based on the subject to
satisfaction of the Magistrate considering
the
police
report
and
other
documents.(Para 18 to 21)

The petition is dismissed. (E-5)

List of Cases cited:

## Text

8 All. Ram Chandra Verma Vs. State of U.P. & Anr.
603
interest of justice to relegate the parties to
appellate court. Additionally when both the
parties have invoked the jurisdiction of this
Court and there is no bar on exercise of
powers and the inherent powers of this
court can always be invoked for imparting
justice and bringing a quietus to the issue
between the parties.

37. As discussed above, the court is
inclined to hold accordingly only because
there is no formal embargo in section 147
of the N.I. Act. This principle would not
help any convict in any other law where
other applicable independent provisions are
existing as the offence punishable under
section 138 of the N.I. Act is distinctly
different from the normal offences made
punishable under Chapter XVII of IPC (i.e.
the offences qua property).

38. In view of the aforesaid
discussions
the
answers
of
question
referred in Paragraph 12 of the judgment is
accordingly.

39. In view of the observations and in
view of the guidelines as laid down in the
case of Damodar S. Prabhu (Supra) and
taking into account the fact that the parties
have settled the dispute amicably, in view
of this court the compounding of the
offence is required to be permitted.

40. Accordingly, the present petition
under section 482 Cr.P.C. is allowed in
terms of the compromise arrived at
between the parties to this litigation out of
court. The conviction and sentence under
Section 138 of the N.I. Act 1981 in
Complaint Case No.515 of 2016 (Abhay
Singh vs. Jai Construction Co. and another)
stands annulled as this court intends,
otherwise to secure the ends of justice as
provided under section 482 Cr.P.C. The
petitioner shall be treated as acquitted on
account of compounding of the offence
with the complainant/person affected. The
petitioner shall pay costs of Rs.5000/- (Rs.
Five thousand Only) to the respondent -
State. Further, the amount of Rupees one
lakh so deposited by the petitioner, as
awarded, before the court below while
filing the appeal shall be released in favour
of opposite party no.2.
----------
(2021)08ILR A603
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.08.2021

BEFORE

THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Application U/S 482/378/407 No. 1144 of 2010

Ram Chandra Verma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Mukul Rakesh

Counsel for the Opposite Parties:
G.A., L.P. Shukla

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal
Code-Section
406-quashing
of
entire criminal proceeding-criminal breach
of trust-an amount of Rs. 1.65,000/- was
entrusted
to
the
applicant
by
the
informant
for
the
fulfillment
of
his
obligation to supply the bricks to the
informant-he sold their bricks to others-
despite repeated requests neither the
bricks were supplied nor the money was
returned-in
this
way
money
was
misappropriated and converted to his own
use
by
the
applicant-complaint
filed
before the consumer forum was dismissed
on the score that the same is not
cognizable by the Forum-FIR, statement
u/s 161 prima facie discloses an offence of
604 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal
breach
of
trust-Hence,
no
illegality has been committed by the Court
below in either taking the cognizance or in
summoning the applicant.(Para 1 to 24)

B. If after perusal of the Chargesheet and
the case diary the magistrate has taken
cognizance and there is sufficient grounds
to proceed further and reasons for the
same has even not been recorded by the
magistrate the same will not vitiate the
cognizance and summoning order. Such
an order of issuing summons to the
acccused is based on the subject to
satisfaction of the Magistrate considering
the
police
report
and
other
documents.(Para 18 to 21)

The petition is dismissed. (E-5)

List of Cases cited:

1. Priti Saraf & anr. Vs St. of NCT of Delhi & anr.
CRLA No. 296 of 2021

2. Pratibha Rani Vs Suraj Kumar & ors.
MANU/SC/0090/1985

3. Chelloor Manaklal Naravan Ittiravi Nambudiri
Vs St. of Travancore MANU/SC/0091/1952:
AIR1953SC478

4. Jaswantrai Manilal Akhaney Vs St. of Bom.
MANU/SC/0030/1956: 1956Cri LJ 116

5. Akharbhai Nazarali Vs Md. Hussain Bhai
MANU/MP/0021/1961:AIR 1961MP37

6. Harihar Prasad Dubey Vs Tulsi Das Mundhra
& ors. MANU/SC/0263/1980: 1980CriLJ1340

7. Basudeb Patra Vs Kanai Lal Haldar (1949)
AIR Cal 207

8. Velji Raghavji Patel Vs St. of Mah.
MANU/SC/0091/1964: 1965CriLJ431

9.
St.
of
Guj.VS
Jaswantlal
Nathalal
MANU/SC/S0091/1967: 1968CriLJ803

10. Sushil Kumar Gupta Vs Joy shanker
Bhattacharjee
MANU/SC/0201/1970:
(1970)3SCR770
11. Superintendent & Remembrancer of Legal
Affairs, W. B. Vs S.K. Roy MANU/SC/0229/1974:
1974 CriLJ678

12. St. of Guj. Vs Afroz Mohammed Hasanfatta
MANU/SC/0139/2019

13.
St.
of
Karn.
Vs
M.
Devendrappa,
MANU/SC/0027/2002, (2015)3 SCC 424

14.
R.P
Kapur
Vs
St.
of
Punj.MANU/SC/0086/1960: 1960 CriLJ 1239

15. St. of Har. & ors. Vs Bhajan Lal & ors,
MANU/SC/0115/1992: (1992) CriLJ527

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

 1. Heard Sri Kunwar Mukul Rakesh,
learned Senior Advocate, assisted by
Kunwar Sushant Prakash, learned counsel
for
applicant,
Sri
Yatindra
Kumar
Agnihotri, learned Additional Government
Advocate for State and perused the record.

2. The instant petition has been filed
for quashing the charge sheet dated
23.10.2009 and the summoning order dated
30.11.2009, passed by learned Judicial
Magistrate 1st, Sitapur in State v. Ram
Chandra Verma, Criminal Case No.2845 of
2009 arising out of Crime No.372 of 2009,
under Section 406 I.P.C. P.S.Sidhauli,
District Sitapur.

3. Though the service on opposite
party no.2 was reported to be sufficient
vide communication dated 6.7.2010 of
Chief Judicial Magistrate, Sitapur and Sri
L.P.Shukla,
Advocate
had
filed
his
vakalatnama on his behalf but no-one is
present for him today.

4. Necessary facts required for
disposal of this application is that opposite
party no.2 filed an FIR against the
8 All. Ram Chandra Verma Vs. State of U.P. & Anr.
605
applicant on 7.5.20Priti Saraf & Anr. Vs.
State of NCT of Delhi & Anr. in
Criminal Appeal No(s). 296 of 2021
dated 10th March, 202109 at 21.30 hours
at P.S.Kotwali Sidhauli, Sitapur stating
therein that the opposite party no.2 had
contacted to buy one lac bricks at the rate
of 1650/- per thousand bricks from the
applicant and had paid Rs.1,50,000/-
through
account
payee
cheque
and
Rs.15,000/- as cash, however the bricks
were not supplied and the applicant had
also sold his brick kiln to some other
persons and, therefore, has misappropriated
the money of opposite party no.2. After
thorough investigation a charge sheet was
submitted by the Investigating Officer
under Section 406 I.P.C. and the Magistrate
has also taken the cognizance of the
offence and vide summoning order dated
30.11.2009 summoned the applicant to face
trial for the offence under Section 406
I.P.C., aggrieved by the same the instant
petition has been filed by the applicant
praying to quash the summoning order
dated 30.11.2009, passed by learned
Judicial Magistrate 1st, Sitapur in State v.
Ram Chandra Verma, Criminal Case
No.2845 of 2009 arising out of Crime
No.372 of 2009, under Section 406 I.P.C.

5. Sri Mukul Rakesh, learned Senior
Counsel vehemently submits that the
instant case is of such a nature where by
any
stretch
of
imagination
criminal
proceedings could not be initiated as the
dispute is purely of civil nature and even if
the allegation of the FIR is taken on its face
value, the same appears to be a case of
breach of promise or contract on the basis
of which only civil case could have been
filed.

It is further submitted that there
were no sufficient ground before the
Magistrate to summon the applicant to face
trial and the Magistrate has materially erred
in summoning the applicant to face trial.

It is further submitted that the
cognizance
has
been
taken
by
the
Magistrate without application of judicial
mind and the order of taking cognizance
and summoning the accused has been
passed on proforma simply by filling up the
blanks which reveals that the Magistrate
has not applied his judicial mind.

It is further submitted that the
proceedings before the courts below are
nothing but the abuse of the process of law
and, therefore, the same be quashed.

Learned Senior Counsel relied on
a judgment of this Court dated 15.12.2017,
passed in Petition (482 Cr.P.C.) No.3551 of
2009 (Desh Bandhu Srivastava v. State of
U.P.).

6. Learned Additional Government
Advocate for State while controverting the
arguments of the learned counsel for
applicant submits that the arguments of
learned counsel for applicant is with regard
to the factual aspects of the case which
cannot be gone into by this Court while
exercising jurisdiction under Section 482
Cr.P.C.

7. Having heard learned counsel for
the parties and having perused the record, it
is now, no more res integra and this Court,
in the exercise of its jurisdiction under
Section 482 of the Code of Criminal
Procedure, is required to examine whether
the averments in the F.I.R./complaint
constitute the ingredients necessary for an
offence alleged under the Penal Code. If
the averments taken on their face do not
constitute the ingredients necessary for the
606 INDIAN LAW REPORTS ALLAHABAD SERIES
offence, the criminal proceedings may be
quashed under Section 482. A criminal
proceeding can be quashed where the
allegations made in the F.I.R./complaint do
not disclose the commission of an offence
under the Penal Code. The F.I.R./complaint
must be examined as a whole, without
evaluating the merits of the allegations.
Though the law does not require that the
F.I.R./complaint
reproduce
the
legal
ingredients of the offence in verbatim but
the complaint must contain the basic facts
necessary for making out an offence under
the Penal Code.

8. The opposite party no.2 has alleged
in the F.I.R./complaint that the applicant
has committed offence under Section 406
of the Penal Code. It would thus be
necessary to examine the ingredients of the
Section 406 IPC and to see whether the
allegations made in the complaint, taken on
their face, attract the offence of section 406
of the Penal Code.

9. Hon'ble Supreme Court Of India in
Pratibha Rani Vs. Suraj Kumar and
Ors.,MANU/SC/0090/1985,
while
discussing the ingredient of " Entrustment"
held as under :-

"Section 405 of the Penal Code
reads thus:

"Section 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 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".

A careful reading of Section 405
shows that the ingredients of a criminal
breach of trust are as follows:

i) A person should have been
entrusted with property, or entrusted with
dominion over property;

ii) That person should dishonestly
misappropriate or convert to their own use
that property, or dishonestly use or dispose
of that property or willfully suffer any other
person to do so; and

iii) That such misappropriation,
conversion, use or disposal should be in
violation
of
any
direction
of
law
prescribing the mode in which such trust is
to be discharged, or of any legal contract
which the person has made, touching the
discharge of such trust.

Entrustment
is
an
essential
ingredient of the offence. A person who
dishonestly
misappropriates
property
entrusted to them contrary to the terms of
an obligation imposed is liable for a
criminal breach of trust and is punished
under Section 406 of the Penal Code .The
jurisdiction under Section 482 of the Code
of Criminal Procedure has to be exercised
with care. In the exercise of its jurisdiction,
a High Court can examine whether a
matter which is essentially of a civil nature
has been given a cloak of a criminal
offence. Where the ingredients required to
constitute a criminal offence are not made
out from a bare reading of the complaint,
the continuation of the criminal proceeding
will constitute an abuse of the process of
the court.
8 All. Ram Chandra Verma Vs. State of U.P. & Anr.
607

"39. The Supreme Court in a
large number of cases has held that the
fundamental core of the offence of criminal
breach of trust is that a property must be
entrusted and the dominion of the property
should be given to the trustee. In the
present case, all these conditions, even
according to the findings of the Court
Though not its conclusion are clearly
established. That the view of the High
Court is absolutely wrong would be clear
from a number of authorities, some of
which we would like to discuss here.

40.
In
Chelloor
Manaklal
Naravan Ittiravi aNambudiri v. State of
Travancore
MANU/SC/0091/1952
:
AIR1953SC478 this Court made the
following observations:

As laid down in Section 385,
Cochin Penal Code (corresponding to
Section 405, Indian Penal Code) to
constitute an offence of criminal breach of
trust it is essential that the prosecution
must prove first of all that the accused was
entrusted with some property or with any
dominion or Power over it.... It follows
almost axiomatically from this definition
that the ownership or beneficial interest in
the property in respect of which criminal
breach of trust is alleged to have been
committed, must be in some person other
than the accused and the latter must hold it
on account of some person or in some way
for his benefit.

41.
In
Jaswantrai
Manilal
Akhaney
v.
State
of
Bombay
MANU/SC/0030/1956 : 1956CriLJ1116
Sinha, J. (as he then was) observed thus:

For an offence under Section 409,
Indian Penal Code the first essential
ingredient to be proved is that the property
was entrusted.... But 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 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 events.

42. In Akharbhai Nazarali v. Md.
Hussain
Bhai
MANU/MP/0021/1961
:AIR1961MP37 the Madhya Pradesh High
Court made the following observations :

It may be that the deduction and
retention of the employees' contribution is a
trust created by virtue of that very fact, or
by virtue of a provision in statute or
statutory rule. But even apart from the
latter, the mere fact of telling the
employees that it is their contribution to the
provident fund scheme and then making a
deduction or recovery and retaining it,
constitutes the offence of criminal breach
of trust. This is so obvious that nothing
more need be said about it.

43. These observations were fully
endorsed and approved by this Court in
Harihar Prasad Dubey v. Tulsi Das
Mundhra and Ors. MANU/SC/0263/1980
: 1980CriLJ1340 where the following
observations were made:

This, in our opinion, is a correct
statement of the position and we also agree
with the learned Judge of the Madhya
Pradesh High Court that "this so obvious
that nothing more need be said about it".
We, therefore, think that the impugned
order quashing the charge against the
respondents is obviously wrong.
608 INDIAN LAW REPORTS ALLAHABAD SERIES

44. In Basudeb Patra v. Kanai
Lal Haldar AIR 1949 Cal 207 the Calcutta
High Court observed thus:

Whereas
the
illustration
to
Section 405 show equally clearly that the
property comes into the possession of the
accused either by an express entrustment
or by some process placing the accused in
a position of trust.... On the facts of the
present case, which, as I have said, are not
open to question at this stage, it is quite
clear that the ornaments were handed over
to the petitioner by the beneficial owner in
the confidence that they would be returned
to the beneficial owner in due time after
having been used for the purpose for which
they were handed over. If this is not an
entrustment, it is impossible to conceive
what can be an entrustment.

(Emphasis ours)

45. This ratio was fully approved
by this Court in Velji Raghavji Patel v.
State
of
Maharasatra
MANU/SC/0091/1964
:
1965CriLJ431
where the following observation were
made:

In
order
to
establish
"
entrustment of dominion" over property to
an accused person the mere existence of
that person's dominion over property is not
enough. It must be further shown that his
dominion was the result of entrustment.
Therefore, as rightly pointed out by Harris,
C.J. the prosecution must establish that
dominion over the assets or a particular
asset of the partnership was by a special
agreement between the parties, entrusted to
the accused person.

46. In the case of State of
Gujarat
v.
Jaswantlal
Nathalal
MANU/SC/0091/1967
:
1968CriLJ803
Hegde, J., speaking for the Court observed
thus:

The
expression
'entrustment'
carries with it the implication that the
person handing over any property or on
whose behalf that property is handed over
to another, continues to be its owner.
Further the person handing over the
property must have confidence in the
person taking the property so as to create a
fiduciary relationship between them.

47. In Sushil Kumar Gupta v.
Joy
Shanker
Bhattacharjee
MANU/SC/0201/1970 : [1970]3SCR770
this Court observed thus :

The offence of criminal breach of
trust is committed when a person who is
entrusted in any manner with property or
with
dominion
over
it,
dishonestly
misappropriates it or converts it to his own
use.... The appellant's manner of dealing
with the money entrusted to his custody
clearly constitutes criminal breach of trust.

48. In the case of Superintendent
& Remembrancer of Legal Affairs, West
Bengal v. S.K. Roy MANU/SC/0229/1974
: 1974CriLJ678 this Court held that for
'entrustment' two things are necessary, viz,
(1) the entrustment may arise in "any
manner" whether or not it is fraudulent,
and (2) the accused must have acquisition
or dominion over the property."

10. Thus condition necessary for an
act to constitute an offence under Section
405 of the Penal Code is that the accused
was entrusted with some property or has
dominion over the property and dishonestly
misappropriates it or converts it to his own
use .
8 All. Ram Chandra Verma Vs. State of U.P. & Anr.
609

11. Perusal of record would also
reveal that in the FIR filed by the opposite
party no.2 against the applicant it has been
specifically stated that opposite party no.2
had contracted to buy one lac bricks at the
rate of Rs.1650/- per thousand bricks from
applicant and he had paid Rs.1,50,000/- to
the owner of the brick kiln/applicant
through
account
payee
cheque
and
Rs.15,000/- as cash to him, who in turn
promised to supply the bricks to opposite
party no.2. On 2.6.2007 he at about 12.00
noon stated to have arrived at the brick kiln
of the applicant to get his bricks but the
applicant informed him that at that time
bricks of good quality were not available
and, therefore, he will deliver the same
afterwards. It is further stated in the FIR
that after waiting for some days, he again
went to the applicant with tractor and
trolley to get the bricks but the same were
not delivered to him and when after waiting
for long he came to the brick kiln again he
was informed that applicant and his wife
had sold the brick kiln to one Asha Gupta.
Despite efforts by opposite party no.2
neither the money was returned nor the
bricks were given to the complainant by the
applicant.

12. It is also apparent that during the
course of investigation the statement of the
complainant/informant was recorded under
Section
161
Cr.P.C.
wherein
he
has
corroborated the version of the FIR and it is also
stated that the cheque of Rs.1,50,000/- and
Rs.15,000/-
cash
was
given
to
the
applicant/accused in the presence of witnesses
Banwari and Arvind Kumar Jain. He has also
provided copy of the receipt given by the
applicant to the Investigating Officer.

13. Opposite Party No.2 also appears
to have filed a complaint before the
Consumer Forum, Sitapur, which was
dismissed by the Forum on the score that
the same is not cognizable by the Forum as
the
issue
involves
complex
factual
determination
which
could
only
be
adjudicated by full fledged trial and also
that the proceedings for recovery of money
are not cognizable by the Consumer Forum.

14. I now come to the question as to
whether or not a clear allegation of
entrustment and misappropriation of the
money was made by the informant in the
FIR and, if so, was the Court below was
justified in summoning the applicant to
face trial under section 406 of the Penal
Code. It is well settled that for the purpose
of exercising its power under Section 482
Cr.P.C. to quash a FIR or a complaint the
High Court would have to proceed entirely
on the basis of the allegations made in the
complaint/FIR
or
the
documents
accompanying
the
same.
It
has
no
jurisdiction to examine the correctness or
otherwise of the allegations. In case no
offence is coming out on the allegations
and the ingredients of Section 405 & 406,
I.P.C. are not made out, this Court would
be justified in quashing the proceedings. In
the
present
case
perusal
of
the
F.I.R./complaint and the statement of the
informant recorded under section 161 of
the Crpc would show that the allegations
with regard to the commission of offence
under section 406 IPC by the applicant are
clear, specific and unambiguous and,
therefore, the complainant should be given
a chance to prove his case in the trial. It is,
of course, open to the accused at the trial to
take whatever defence that is open to him
but that stage had not come yet.

15. The important portions of the
F.I.R./complaint and the statement of the
informant recorded under Section 161
Cr.P.C. may be spelt out as under :
610 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) that the informant had agreed
to buy one lac bricks from accused
applicant who was the manager of the brick
kiln, at the rate of 1650/- per thosand bricks
and had paid Rs. 1,50,000/- to the accusedapplicant through account payee cheque
and Rs. 15000/- in cash as advance,

(2) that applicant had assured the
informant that he will supply the bricks as
agreed between them,

(3) that informant had gone to the
brick kiln of the applicant on 02.06.2007 at
about 12.00 p.m. to recieve the bricks but
he did not deliver the bricks on the pretext
that bricks are not of good quality,

(4) that thereafter the informant
had stated to have gone to the brick kiln of
the applicant many times with tractor trolly,
but he did not deliver the bricks ,

(5) that applicant and his wife had
sold their brick kiln to others and despite
repeated requests neither the bricks were
supplied nor the money of the informant
was returned.

16. Taking all the allegations placed
above, by no stretch of imagination can it
be said that the aforesaid allegations do not
prima facie amount to an offence of
criminal breach of trust against the
applicant punishable under Section 406 of
the Penal Code as the amount of Rs
1,65,000/- was allegedly entrusted to the
applicant by informant for the fulfillment
of his obligation to supply the bricks to the
informant and contrary to the terms of the
obligation, neither the bricks were supplied
nor the money was returned to the
informant/opposite party no.2 and in this
way the money was misappropriated and
converted to his own use by the applicant.
Thus, there can be no room for doubt that
all the facts stated in the F.I.R. and
statement of informant recorded under
Section 161 Cr.P.C. constitute an offence
under Section 406 IPC and the informant
cannot be denied the right to prove his case
at the trial.

17. Next submission of learned Senior
counsel is with regard to the fact that the
order of magistrate whereby the cognizance
has been taken and summons has been
issued is a proforma order and the same
shows non application of mind by the
magistrate. To butress his point he relied
upon a case decided by a single Judge of
this Court in 482 No. 3551 of 2009 dated
15.12.2017
whereby
the
proforma
summoning order of the magistrate was
quashed on the ground that the same has
been passed by filling blanks in proforma
order. Perusal of the order of the magistrate
whereby the applicant has been summoned
would show that the same is a proforma
order, however the magistrate on the same
day has endorsed on the Charge Sheet as "
Cognizance taken , register", which shows
that the after perusing the charge sheet and
the case diary he has endorsed this on the
Charge Sheet. However no reason has been
assigned by the magistrate for taking
cognizance and issuance of summons.

18. Hon'ble Supreme Court in State
of
Gujrat
Vs
Afroz
Mohammed
Hasanfatta
reported
in
MANU/SC/0139/2019 while considering
the need of the magistrate to record reasons
for taking of cognizance and issuance of
summons in cases based on police report
(Charge Sheet) framed a point mentioned
below and answered it as under :-

"While directing issuance of
process to the Accused in case of taking
8 All. Ram Chandra Verma Vs. State of U.P. & Anr.
611
cognizance of an offence based upon a
police report Under Section 190(1)(b)
Code of Criminal Procedure, whether it is
mandatory for the court to record reasons
for its satisfaction that there are sufficient
grounds for proceeding against the
Accused?

"20. In para (21) of Mehmood Ali
Rehman, this Court has made a fine
distinction between taking cognizance
based upon charge sheet filed by the police
Under Section 190(1)(b) Code of Criminal
Procedure and a private complaint Under
Section
190(1)(a)
Code
of
Criminal
Procedure and held as under:

21. Under Section 190(1)(b)
Code
of
Criminal
Procedure,
the
Magistrate has the advantage of a police
report and Under Section 190(1)(c) Code
of Criminal Procedure, he has the
information or knowledge of commission of
an offence. But Under Section 190(1)(a)
Code of Criminal Procedure, he has only a
complaint before him. The Code hence
specifies that "a complaint of facts which
constitute such offence". Therefore, if the
complaint, on the face of it, does not
disclose the commission of any offence, the
Magistrate shall not take cognizance Under
Section
190(1)(a)
Code
of
Criminal
Procedure. The complaint is simply to be
rejected.

21. In summoning the Accused, it
is not necessary for the Magistrate to
examine the merits and demerits of the case
and whether the materials collected is
adequate for supporting the conviction. The
court is not required to evaluate the
evidence and its merits. The standard to be
adopted for summoning the Accused Under
Section 204 Code of Criminal Procedure is
not the same at the time of framing the
charge. For issuance of summons Under
Section 204 Code of Criminal Procedure,
the expression used is "there is sufficient
ground for proceeding....."; whereas for
framing the charges, the expression used in
Sections 240 and 246 Indian Penal Code is
"there is ground for presuming that the
Accused has committed an offence.....". At
the stage of taking cognizance of the
offence based upon a police report and for
issuance of summons Under Section 204
Code of Criminal Procedure, detailed
enquiry regarding the merits and demerits
of the case is not required. The fact that
after investigation of the case, the police
has filed charge sheet along with the
materials thereon may be considered as
sufficient
ground
for
proceeding
for
issuance of summons Under Section 204
Code of Criminal Procedure.

22. In so far as taking cognizance
based on the police report, the Magistrate
has the advantage of the charge sheet,
statement of witnesses and other evidence
collected
by
the
police
during
the
investigation. Investigating Officer/SHO
collects the necessary evidence during the
investigation conducted in compliance with
the provisions of the Code of Criminal
Procedure and in accordance with the
Rules of investigation. Evidence and
materials so collected are sifted at the level
of the Investigating Officer and thereafter,
charge sheet was filed. In appropriate
cases, opinion of the Public Prosecutor is
also obtained before fling the charge sheet.
The court thus has the advantage of the
police report along with the materials
placed before it by the police. Under
Section 190 (1)(b) Code of Criminal
Procedure, where the Magistrate has taken
cognizance of an offence upon a police
report and the Magistrate is satisfied that
there is sufficient ground for proceeding,
612 INDIAN LAW REPORTS ALLAHABAD SERIES
the Magistrate directs issuance of process.
In case of taking cognizance of an offence
based
upon
the
police
report,
the
Magistrate is not required to record
reasons for issuing the process. In cases
instituted on a police report, the Magistrate
is only required to pass an order issuing
summons to the Accused. Such an order of
issuing summons to the Accused is based
upon
subject
to
satisfaction
of
the
Magistrate considering the police report
and other documents and satisfying himself
that
there
is
sufficient
ground
for
proceeding against the Accused. In a case
based upon the police report, at the stage
of issuing the summons to the Accused, the
Magistrate is not required to record any
reason. In case, if the charge sheet is
barred by law or where there is lack of
jurisdiction or when the charge sheet is
rejected or not taken on file, then the
Magistrate is required to record his
reasons for rejection of the charge sheet
and for not taking on file. In the present
case, cognizance of the offence has been
taken by taking into consideration the
charge sheet filed by the police for the
offence Under Sections 420, 465, 467, 468,
471, 477A and 120B Indian Penal Code,
the order for issuance of process without
explicitly
recording
reasons
for
its
satisfaction for issue of process does not
suffer
from
any
illegality."[Emphasis
Mine]"

19. Thus if after perusal of the Charge
Sheet and the case diary the magistrate has
taken cognizance and there is sufficient
grounds to proceed further and reasons for
the same has even not been recorded by the
magistrate the same will not vitiate the
cognizance
and
summoning
order.
However the situation may be different
where there is no material at all in the case
diary and the prosecution case even if taken
on its face do not disclose commission of
any offence.

20. The Apex Court in State of
Karnataka
v.
M.
Devendrappa,
MANU/SC/0027/2002, 2015 (3) SCC 424
while considering the R P Kapoor and
Bhajan Lal (see below) has opined as
under:-

"In R.P. Kapur v. State of Punjab
MANU/SC/0086/1960 : 1960 CriLJ 1239,
this Court summarized some categories of
cases where inherent power can and should
be exercised to quash proceedings.

(i) Where it manifestly appears
that there is a legal bar against the
institution or continuance, e.g. want of
sanction;

(ii) Where the allegation in the
first information report or complaint taken
at its face value and accepted in their
entirely do not constitute the offence
alleged;

(iii)
Where
the
allegations
constitute an offence, but there is no legal
evidence adduced or the evidence adduced
clearly or manifestly fails to prove the
charge.

8. In dealing with the last case, it
is important to bear in mind the distinction
between a case where there is no legal
evidence or where there is evidence which
is clearly inconsistent with the accusations
made, and a case where there is legal
evidence which, on appreciation, may or
may not support the accusations. When
exercising jurisdiction under Section 482 of
the Code, the High Court would not
ordinarily embark upon an enquiry whether
the evidence in question is reliable or not
8 All. Ram Chandra Verma Vs. State of U.P. & Anr.
613
or whether on a reasonable appreciation of
it accusation would not be sustained. That
is function of the trial judge. Judicial
process should not be an instrument of
oppression, or needless harassment. Court
should be circumspect and judicious in
exercising discretion and should take all
relevant facts and circumstances into
consideration before issuing process, lest it
would be an instrument in the hands of
private complainant as unleash vendetta to
harass any person needlessly. At the same
time the section is not an instrument
handed over to an accused to short-circuit
a prosecution and bring about its sudden
death. The scope of exercise of power
under Section 482 of the Code and the
categories of cases where the High Court
may exercise its power under it relating to
cognizable offences to prevent abuse of
process of any Court or otherwise to secure
the ends of justice were set out in some
detail by this Court in State of Haryana
and Ors. v. Bhajan Lal and Ors.,
MANU/SC/0115/1992 : 1992CriLJ527 . A
note of caution was, however, added that
the power should be exercised sparingly
and that too in rarest of rare cases. The
illustrative categories indicated by this
Court are as follows:-

(1) Where the allegations made in
the
first
information
report
or
the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused.

(2) Where the allegations in the
First
Information
Report
and
other
materials, if any accompanying the F.I.R.
do not disclose a cognizable offence,
justifying an investigation by police officers
under Section 156(1) of the Code except
under an order of Magistrate within the
purview of Section 155(2) of the Code.

(3) Where the uncontroverted
allegations made in the F.I.R. or complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused.

(4) Where the allegations in the
F.I.R. do not constitute a cognizable
offence but constituted only a noncognizable offence, no investigation is
permitted by a police officer without an
order of a Magistrate as contemplated
under Section 155(2) of the Code.

(5) Where the allegations made
in the FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground
for
proceeding
against
the
accused.

(6) Where there is an express
legal bar engrafted in any of the provisions
of the Code or the concerned Act (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."
614 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Hon'ble Supreme Court in its
recent decision, in the case of Priti Saraf &
Anr. Vs. State of NCT of Delhi & Anr. in
Criminal Appeal No(s). 296 of 2021 dated
10th March, 2021 has held as under :-

"32. In the instant case, on a careful
reading of the complaint/FIR/charge-sheet, in
our view, it cannot be said that the complaint
does not disclose the commission of an
offence. The ingredients of the offences under
Sections 406 and 420 IPC cannot be said to be
absent on the basis of the allegations in the
complaint/FIR/charge-sheet. We would like to
add that whether the allegations in the
complaint are otherwise correct or not, has to
be decided on the basis of the evidence to be
led during the course of trial.

Simply because there is a remedy
provided for breach of contract or arbitral
proceedings initiated at the instance of the
appellants, that does not by itself clothe the
court to come to a conclusion that civil remedy
is the only remedy, and the initiation of
criminal proceedings, in any manner, will be
an abuse of the process of the court for
exercising inherent powers of the High Court
under Section 482 CrPC for quashing such
proceedings."

22. Thus it is manifestly evident from
the law aforesaid that even if any case has
been filed by the complainant/ informant
before the consumer forum and the same
has been dismissed on the ground of
alternate remedy, the same could not clothe
this case as a civil dispute.

23. In view of above, I am satisfied that
the F.I.R. and statement of the complainant
recorded under section 161 of the Cr.P.C. prima
facie discloses an offence of criminal breach of
trust, as defined in Section 405 and punishable
under Section 406 of the Indian Penal Code and
no illegality has been committed by the Court
below in either taking the cognizance or in
summoning the applicant-accused to face trial
under aforesaid penal section. Keeping in view
the over all facts, circumstances and the
aforesaid case laws no case has made out for
the quashing of the proceedings, charge sheet or
the summoning order passed by the trial Court.

24. For the reasons given above, I do not
find any substance in the application of the
applicant and the same is therefore liable to be
dismissed. The application filed by the
applicant is, thus dismissed. The trial Court is
directed to conclude the trial at the earliest
without granting soft adjournments to the either
party, in accordance with law.

25. Interim order, if any, is hereby
vacated.

26. A copy of this order be immediately
sent to the trial Court.

27. It is clarified that observations of this
court made herein before are only for the
purpose of disposing this application and the
same shall never be construed as the opinion of
this Court on merits and the trial Court shall
independently appreciate the evidence which
would be produced by the parties and will come
to its own conclusion without being guided by
any observation made in this order.

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.09.2021

BEFORE
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Application U/S 482/378/407 No. 1144 of 2010

Ram Chandra Verma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties