Mohinder Singh, Lt.Col. (Retired) vs State of Haryana

V.K. Bali, J. (Oral)

Lt. Col. Mohinder Singh since retired and presently serving as President, District ExServices League, Kurukshetra, through present petition filed by him under section 482 of the Criminal Procedure Code seek quashing of the complaint (Annexure P/6) under sections 406/408/409 of the Indian Penal Code as also summoning order dated 29.9.1.994 (Annexure P7).

Briefly the facts giving rise to the present petition are that Lt. Col. Labh Singh Gill, respondent No. 2 filed a complaint (Annexure P6) under sections 406/408/409 of the Indian Penal Code. Burden of the complaint is that the petitioner as President of the District ExServices League, Kurukshetra, collected an amount of Rs. 19,000/ towards the Chief Minister Drought Relief Fund which was so collected by contributing one day''s pension. In pursuance of the resolution on that account, the said amount was to be deposited with the Chief Minister in his account or was to be handed over to him as and when he visited the town inasmuch as the said amount was not deposited in the Chief Minister Fund for handed over to him, it is alleged in the complaint that the petitioner committed the offences of which he is charged i.e. sections 406, 108 and 409 of the Indian Penal Code, After recording some evidence the Magistrate dealing with the matter summoned the petitioner under section 406 of the Indian Penal Code. As referred to in the earlier part of the judgment, it is this summoning order and the complaint under sections 406, 408 and 409 of the Indian Penal Code which is sought to be quashed.

Mr. Pritam, Saini, learned counsel appearing for the petitioner vehemently contends that it is proved from the facts of the case that the petitioner has not misappropriated a penny out of amount of Rs. 19,000/ so deposited for his own use and the said amount remained deposited in the League''s account for over a period of 8 years. There after vide resolution passed by the League a sum of over Rs. 17,000/ was spent for the welfare of the exservicemen. In consequence of notice given by this Court of this petition to the complainant, reply has been filed. Even though it has been pleaded in the written statement filed in this Court that the petitioner has actually spent some amount for his own use, nothing at all has been brought on the record of the case that he had spent even a penny for his own use. On the other hand, it stands proved from the documentary evidence that the entire amount of Rs. 19,000/ remained deposited in the League''s account for a sufficiently long time whereafter only an amount of Rs. 17,000/ was spent in the manner referred to above. These facts, in considered view of this Court cannot possibly fall under the mischief of Section 405 of the Indian Penal Code. Assuming, the petitioner was entrusted with an amount of Rs. 19,000/ or had denomination over the same, yet nothing has been brought on the records to show that he dishonestly misappropriated or converted the amount aforesaid to his own use. It is not only the entrustment or denomination over the property which is necessary for making out a case of breach of trust but the dishonest use thereof is an essential ingredient for constituting an offence. The later being totally lacking in the present case, continuation of criminal proceedings against the petitioner would simply be an abuse of the process of Court resulting into an agonising trial for the petitioner. That being the view of this Court, present petition is allowed and the complaint, Annexure P6, and summoning order, Annexure P7, are quashed.