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TMI Blog2019 (2) TMI 2064X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. 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. There is nothing on the face of the complaint to indicate that the appellants dishonestly induced the first respondent to deliver any property to them. Cheating is an essential ingredient to an offence under Section 420 of the Penal Code. The ingredient necessary to constitute the offence of cheating is not made out from the face of the complaint and consequently, no offence under Section 420 is made out. In the present case, the son of the appellants has instituted a civil suit for the recovery of money against the first respondent. The suit is pending. The first respondent has filed the complaint against the appellants six years after the date of the alleged transaction and nearly three years from the filing of the suit. The averments in the complaint, read on its face, do not disclose the ingred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding criminal intimidation and a demand for dowry. The High Court of Karnataka quashed the proceeding against appellant No. 2. On 14 February 2013, Rajiv filed a civil suit for recovery of money [O. S. No. 1305 of 2013] against the first respondent for the return of the money allegedly transferred by him into her bank account. The suit is pending. Two divorce petitions instituted by Savita have been dismissed by the family court. 5 On 25 February 2016, the first respondent filed a private complaint [PCR 2116 of 2016] against the appellants which forms the subject matter of the present appeal. The first respondent alleges that the amount of Rs 20 Lakhs which was transferred by the son of the appellants was returned in cash to the appellants with interest of Rs 24,000 on 1 July 2010. No receipt was allegedly received by the first respondent. It is alleged that the appellants and their son have colluded to siphon the money and that the civil suit filed by the son of the appellants is without merit. On 11 May 2016, the Additional Metropolitan Magistrate referred the complaint for investigation under Section 156(3) of the Code of Criminal Procedure 1973. On 19 May 2016, a Fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the 4 ground that a few ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispose 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 [ Section 406. Punishment for criminal breach of trust.- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. ] 14 Section 415 of the Penal Code reads thus: Section 415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer all his monies to different accounts and also transferred some monies belonging to him in the US to his parents accounts in Bangalore, India and he also pleaded his wife i.e. Complainant s daughter that he also wanted to divert some funds unto Complainant s account in Bangalore That Rajiv Vijayasarathy Ratnam diverted some of his monies to Accused No. 1 and 2 and the Complainant It is further pertinent to mention that the accident occurred on 05.02.2010 and money was transferred on 17.02.2010, the transfer was due to the insecurity at the behest of Mr. Rajiv Vijayasarathy Rathnam, the money was not sought or required by the complainant. The Complainant daughter Ms. Savitha Seetharam convinced the Complainant to accept transfer of monies which was for the benefit of the Accused person s son Mr. Rajiv Vijayasarathy Ratnam and to hold it in trust for him and accordingly the son of the accused transferred monies on 17th February 2010 to the Complainant account Rs. 20,00,000/- (Rupees Twenty Lakhs only) It is pertinent to mention that the accused person s son Mr. Rajiv Vijayasarathy Ratnam insisted the Complainant and her husband to pay the said monies by way of cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o judge Bench of this Court examined the ingredients of the offence and whether the complaint on its face disclosed the commission of any offence. This Court quashed the criminal proceedings holding thus: 14. At this stage, we are only concerned with the question whether the averments in the complaint taken at their face value make out the ingredients of criminal offence or not. 18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property 19. Even if all the allegations in the complaint taken at the face value are true, in our view, the basic essential ingredients of dishonest misap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first respondent. As we have noted above, the complaint in the present case is bereft of the basic facts necessary to constitute the offences alleged under Sections 405, 406, 415 and 420 of the Penal Code. 22 Learned Senior Counsel for the appellant contended that the actions of the first respondent constitute an abuse of process of the court. It is contended that the present dispute is of a civil nature and the first respondent has attempted to cloak it with a criminal flavor to harass the aged appellants. It is also contended that there is an undue delay in filing the complaint from which the present appeal arises, and this demonstrates the mala fide intention of the first respondent in filing the complaint against the appellants. Learned Senior Counsel for the appellants relied on the decision of this Court in State of Karnataka v L Muniswamy [(1977) 2 SCC 699] In that case, the prosecution alleged that eight of the accused had conspired to kill the complainant. The Karnataka High Court quashed the proceedings on the ground that no sufficient ground was made out against the accused. A three judge Bench of this Court dismissed the appeal by the State with the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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