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Judgment
Date : 07-08-2026
Heard the parties.
The present quashing petition has been preferred to quash the order dated 16.07.2018 passed in Sadar P.S. Case No. 198 of 2017, where learned CJM, Darbhanga took cognizance for the offence punishable under Sections 406 and 409 of the Indian Penal Code.
Despite repeated calls Opposite Party No. 2, fails to join the present proceedings.
The prosecution case is that petitioner the then Revenue Officer, Darbhanga Circle (currently under suspension with headquarters at Biraul Circle), and one Sudhir Kumar Jha, then typist, Darbhanga Circle (currently posted at Ghanshyampur Circle), alleged to make his service book traceless. Consequently, as the service book remains untraced, it has been alleged that an FIR should be registered against both officials and compliance reported to the District Magistrate, Darbhanga.
It is submitted by Mr. Bindhyachal Singh learned senior counsel appearing for the petitioner that the petitioner has been falsely implicated only because his service book could not be traced. It is submitted that the service book was an official record maintained by the department and the petitioner was never its custodian. It is further submitted that the petitioner had received four service books and all the four service books were duly handed over in the Circle Office, which is evident from the official receiving records. Learned counsel also submits that the discrepancy regarding the petitioner’s date of birth led to a departmental enquiry and, to cover up the departmental lapse in maintaining the service book, the petitioner has been made an accused.
Learned APP supports the impugned order and submits that there were sufficient materials before the learned Magistrate to take cognizance.
After considering the submissions of the parties and the materials on record, the allegation against the petitioner is only that his service book could not be found. There is no allegation that the petitioner dishonestly misappropriated the service book or used it for his personal benefit. There is also no material to show that the petitioner alone was responsible for keeping the service book in safe custody. The documents relied upon by the petitioner show that four service books were received in the Circle Office and were handed over through the concerned clerk. The materials on record further show that the service book was an official record maintained by the department. Therefore, merely because the service book could not be traced, it cannot be presumed that the petitioner committed criminal breach of trust. To constitute an offence under Sections 406 and 409 IPC, there must be material to show that the property was entrusted to the accused and that he dishonestly misappropriated or converted it to his own use. In the present case, there is no such allegation or material. The FIR does not disclose any dishonest intention on the part of the petitioner.
It would be apposite to reproduce Sections 406 and 409 of the IPC:-
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.
409. Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever,
being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The Supreme Court in Deepak Gaba and Ors. vs. State of U.P. and Anr. reported in (2023) 3 SCC 423 has held that criminal proceedings should not be allowed to continue where the allegations, even if accepted as true, do not disclose the essential ingredients of the alleged offence. Criminal law cannot be used to prosecute a person when the basic ingredients of the offence are absent.
It would be appropriate to reproduce the Paragraph Nos. 15, 16 & 17 of Deepak Gaba Case (supra), which read as:-
15.For Section 405IPC to be attracted, the following have to be established:
(a)the accused was entrusted with property, or entrusted with dominion over property;
(b)the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and
(c)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.
16.Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust. [Sudhir Shantilal Mehta v. CBI, (2009) 8 SCC 1 : (2009) 3 SCC (Cri) 646]
17.However, in the instant case, materials on record fail to satisfy the ingredients of Section 405IPC. The complaint does not directly refer to the ingredients of Section 405IPC and does not state how and in what manner, on facts, the requirements are satisfied. Pre-summoning evidence is also lacking and suffers on this account. On these aspects, the summoning order is equally quiet, albeit, it states that “a forged demand of Rs 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand”. A mere wrong demand or claim would not meet the conditions specified by Section 405IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. Hence, even if Respondent 2 complainant is of the opinion that the monetary demand or claim is incorrect and not payable, given the failure to prove the requirements of Section 405IPC, an offence under the same section is not constituted. In the absence of factual allegations which satisfy the ingredients of the offence under Section 405IPC, a mere dispute on monetary demand of Rs 6,37,252.16p, does not attract criminal prosecution under Section 406IPC.
In the present case, the prosecution has failed to place any material to show that the petitioner dishonestly retained or misappropriated the service book. At best, the materials indicate that an official record has gone missing from the department. Such a circumstance, by itself, does not constitute the offences under Sections 406 and 409 IPC. The learned Magistrate has taken cognizance without considering whether the essential ingredients of the alleged offences are made out from the materials collected during investigation. The impugned order, therefore, suffers from non-application of mind.
In view of the discussions made above, this Court is of the considered opinion that continuation of the criminal proceeding against the petitioner would amount to abuse of the process of the Court, accordingly, impugned order of cognizance dated 16.07.2018 with all its consequential proceedings, qua, above named petitioner arising thereof as passed in Sadar P.S. Case No. 198 of 2017, pending before learned CJM, Darbhanga is hereby quashed and set aside.
Hence, this application stands allowed.
TCR (Trial Court Records), if any, be returned to the learned Trial Court alongwith the copy of this judgment.