Criminal prosecution under Sections 406 and 420 of the IPC requires evidence of fraudulent misappropriation and mens rea, and criminal proceedings are not a shortcut for other remedies available in law.

Heard learned counsel for the petitioner and learned counsel for the State.

2. By way of filing the present application under Articles 226 and 227 of the Constitution of India, the petitioner seeks quashing of the first information report (For short ‘FIR’) of Mainatand P.S. Case No. 82 of 2013 registered under Section 406 and 420 of the Indian Penal Code (For short ‘IPC’).

3. On 04.10.2013, at about 10.00 a.m., the Opposite Party No. 2, Hiraman Sah, submitted a written report before the Officer-in-charge of Mainatand Police Station alleging therein that:-

(i) The petitioner took Rs. 30,000/- from his father late Fagu Sah in his presence on condition, as noted down by the petitioner himself in the note book of his father that if the petitioner fails to give paddy within time, he would pay interest thereon.

(ii) After death of his father, on demand, the petitioner kept on avoiding to pay back the money, and a panchayati was convened by the Sarpanch, but he did not chose to participate in the same, and with an intention to misappropriate the amount, he refused to pay back the money.

4. On the basis of the aforesaid written report, Mainatand P.S. Case No. 82 of 2013 was registered under Sections 406 and 420 of the IPC and investigation was taken up.

5. Learned counsel for the petitioner has submitted that the allegations made in the first information report do not constitute any of the alleged offences and therefore criminal prosecution of the petitioner in the present case is unwarranted, and the investigation being conducted by police tantamounts to abuse of the process of law, and is not going to yield any fruitful result, and therefore, the said FIR is liable to be quashed to secure the ends of justice.

6. He has further contended that opposite party no. 2 has launched the present prosecution for recovery of loan amount given by his father after his death and certainly no criminal offence is made out on such allegation, nor such case can be brought by a successor in interest, rather this issue may be agitated in money suit before a civil court of competent jurisdiction.

7. Lastly, it is submitted that as a matter of fact the petitioner has neither taken loan from the father of the informant, nor he has given any undertaking in this regard to repay the amount. According to him, the present case has been instituted only with oblique and ulterior motive to extort money after preparing a forged and fabricated note as enclosed with the FIR.

8. On the other hand, learned counsel for the State has contended that the allegations made in the FIR do attract the ingredients of offences punishable under Section 406 and 420 of the Indian Penal Code. He contends that since the matter is under investigation, it would not be proper for this Court to interdict investigation of the case at the initial stage. He has pointed out that there is a definite allegation in the FIR that petitioner had borrowed Rs. 30,000/- from the father of the informant, and after his death, he refused to pay back the money with an intention to misappropriate the amount.

9. I have heard respective counsel for the parties and perused the FIR.

10. At this stage, this court is only concerned with the question whether or not the allegations made in the FIR attract the ingredients of any cognizable offence.

11. In order to examine this question, it would be proper to consider the relevant provisions of the IPC. As noted above, the FIR has been instituted under Sections 406 and 420 of IPC. Section 406 IPC prescribes punishment for criminal breach of trust as defined in Section 405 IPC.

12. Section 405 IPC reads as under:-

“405. Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contra