Bombay High Court
B.K.Birla
Versus
P.N.Agarwal & Anr.
Decided On:

Headnote:Section 482-Indian Penal Code, 1860, Section 409-Proceedings for offence under Section 409 IPC- Petitioners, Director of company under statutory power invested companys fund in shares of other Companies - Charge of Criminal conspiracy and breach of trust against him levelled by complainant - Complaint being frivolous, vexations and barassing- Charge not discernible_ Proceedings to be quashed.

       If the allegations made in the complaint or the statement of verification taken at their face value do not make out any case or where the allegations made in the complaint are patently absurd and inherently improbable or the discretion exercised by the Magistrate in issuing process is capricious and arbitrary, the proceedings may be quashed. Even where the allegations made against the accused do constitute the offences alleged but there is either on legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charges, the proceedings may be quashed.

       If the petitioners invested the money by exercising the authority given to them by law, there is no question of dishonestly in such transactions. They have done what the law permits them to do. The definition of Criminal breach of trust also implies that the act of disposing of the property by investment cannot be an offence unless it is in violation of any direction of law prescribing the mode in which such "trust" is to be discharged. In other words, since disposition of the property by investment is in accordance with the provisions of Sections 291 and 292 of the Companies Act, the petitioners Act is outside the definition of the criminal breach of trust.

       It is necessary to caution the subordinate courts that the complaints of this nature should be scrutinised closely with a view to finding out whether they disclose offences complained of. An examination of accusations contained in the complaints should be made in the light of judicial authorities especially those of the Supreme Court, which provide the guidelines. It is only after such scrutiny that process should be issued. Issuing process is not a mechanical job. It should be done cautiously and after application of the law on the the subject.

       Section 409-Proceedings for offence under Section 409 I.P.C.-Petitioners, Director of company under statutory power invested companys fund in shares of other companies-Charge of criminal conspiracy and breach of trust against him levelled by complainant-Complaint being frivolous vexations and harrasing-Charge not discernible-Proceedings to be quashed.

       For Citation : (1990) I Crimes 440 at pp. 442, 443, (Bom)