IMPORTANT POINT
It is not the province of Court at the stage of taking issuing process to embark upon and sift or appreciate evidence 10 come to conclusion whether no prima facie case was made out.

JUDGMENT

Dibvendu Bhusan Dutta. J. - The instant application under Section 401 read with Section 482 of Cr. P.C. has been filed by the accused persons of CR 268 of 1996 for quashing of the said proceeding which is pending in the Court of SDJM, Sreerampore.

2. The said proceeding was started on the basis of a complaint lodged by the respondent opposite party No. 1 against her husband (petitioner No. 1), the brother of her husband (petitioner No. 2) and her father-in-law (petitioner No. 3) alleging commission of criminal breach of trust by the petitioners in respect of her movable properties. The opposite party No. 1 lodged the complaint on 19-6-1996 and also filed a petition under Section 94 of the Cr. P.C. praying for issuance of a search wan-ant for recovery of the articles in respect of which criminal breach of trust is alleged to have been committed. The learned Magistrate by his order dated 19-6-1996 took cognizance upon that complaint issued process against the petitioners under Sections 403/406, I.P.C. and allowed the prayer for search warrant. While issuing search warrant, the learned Magistrate had also directed the articles, which might be seized in execution of the search warrant to be given in the zimma of the opposite party No. 1. It is alleged by the petitioners that the instant proceeding is malafide and has been instituted only to harass and humiliate the petitioners. In the complaint, the opposite party No. 1 totally suppressed the fact that he had earlier lodged a complaint with the P.S. on the basis of which Sreerampore P.S. Case No. 198 of 1996 was started under Section 498-A, I.P.C. against the present petitioners. In the earlier complaint, the opposite party No. 1 did not disclose anything about the commission of the alleged offences for which the present case was started. The present case is patently false and is a mere abuse of the process of the Court. The learned Magistrate did not properly apply his mind in issuing process under Sections 403 and 406 of I.P.C. The learned Magistrate should not have directed the properties to be seized in execution of the search warrant to be made over to the custody of the opposite party No. 1 without giving any hearing to the petitioners. The order dated 19-6-1996 is bad in law and is liable to be set aside.

3. During the hearing the legality of the criminal proceeding and the magisterial order dated 19-6-1996 whereby the process was issued under Sections 403/406, I.P.C. and the search warrant was issued with a direction to deliver the seized articles to the zimma of the opposite party No. 1 was challeged on several grounds. Let me deal with the grounds one by one.

4. First, it was contended that the alleged offence could either be one of criminal misappropriation punishable under Section 403, I.P.C. or one of criminal breach of trust punishable under Section 406. I.P.C. and as such the magisterial order issuing summons under both the Sections 403 and 406 of I.P.C. was patently wrong.

5. Section 403 requires dishonest misappropriation or conversion of movable property for a person's own use while the offence of criminal breach of trust defined in Section 405 and punishable under Section 406 requires: (1) entrusting any person with property or with any domination over property (2) the person entrusted (a) dishonestly mis-appropriating or converting to his own use that property or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction law prescribing the mode in which such trust is to be discharged or (ii) of any legal contact made touching the discharge of such trust. In case of criminal mis-appropriation the property must be movable while in case of criminal breach of trust the property is not restricted only to movable property. In criminal mis-appropriation the property comes into the possession of the offender by some casualty or otherwise while in case of criminal breach of trust the pr