ORDER

With consent of the parties heard finally.

1. This criminal revision under section 397/401 of Cr.P.C. has been filed by the petitioner being aggrieved by the order dated 6.8.2022 passed by the Tenth Additional Sessions Judge, Indore (M.P.) in S.T. No.822/2021, whereby charges under section 389, 422 and 409 of IPC, 1860 have been framed against the applicant.

2. Brief facts of the case are that on 12.11.2016 applicant was admitted in Gokuldas Hospital, Indore for having eaten some poisonous substance. He consumed poison at 4.30 pm and thereafter he informed about his consuming poison to Raj and Shailu. During investigation, police recorded statements of Shailu wherein Shailu stated that applicant told him after consuming poison that he was indebted to Nikhil Agrawal and therefore for saving himself from such recovery and for roping Nikhil Agrawal into false case, he consumed poison, but his intention was not to commit suicide.

3. The statement of the applicant was recorded on 26.11.2016 wherein he deposed that an amount of Rs.4,02,731/- is due towards Nikhil Agrawal as commission and applicant was informed by some other businessmen that they have roped Nikhil Agrawal in some false cases, thereafter, Nikhil Agrawal is not asking for the due amount from them, hence the applicant can also adopt the same way therefore, he consumed poison, to rope Nikhil Agrawal in a false case. After due investigation charge sheet was filed against the applicant for offence under section 389, 422, 406 and 409 of IPC, 1860 before Judicial Magistrate First Class, Indore.

4. Learned JMFC vide order dated 27.11.2021 discharged other accused persons Anil, Sanjay Agrawal and Sandeep Goyal from the crime for want of evidence and since offence 409 of IPC, 1860 is not triable by JMFC the case was committed to Sessions Court, Indore. After due consideration vide order dated 6.8.2022 charges were framed under sections 389, 422, 409 of IPC, 1860 against the applicant. Being aggrieved by the aforesaid order applicant has preferred the present revision petition praying for setting aside the order dated 6.8.2022, quashing the charge sheet and the consequent proceedings pending in S.T. No.822/2021.

5. Learned counsel for the petitioner submitted that allegation against the petitioner is that he did not pay brokerage amount to Nikhil Agrawal. The allegation of non payment of money strictly makes out a case of civil dispute between the parties and by no stretch of imagination a case for criminal breach of trust can be made out. The entire narrative of the respondent fails to make out as to how the applicant was in entrustment of or were having dominion over the property of Nikhil Agrawal and further as to how he dishonestly misappropriated such property or put it to his own use.

6. Learned counsel also contended that the allegation mentioned in memo of charge is not in consonance with the charges leveled and evidence produced in the final report filed by respondent. The basic ingredients for making out offences under section 409 of IPC is not made in the present case. There is no mention of entrustment of money in the final report but memo of charge under section 409 has been prepared by stating that a sum of Rs.4,02,731/- were entrusted in the ordinary course of business. The basic ingredients of offence under section 409 of IPC, 1860 is missing in the instant case. Here it is worth mentioning that in the course of arguments learned counsel for the petitioner confines his arguments as to charge of section 409 of IPC, 1860. He has submitted that the petitioner may be liable for paying amount as commission to the complainant but since he has neither been entrusted money by complainant nor he is with dominion of any property of complainant, he is not liable to be charged under section 409 of IPC, 1860. In these context the charges under ection 409 of IPC framed against the petitioner is not in accordance with law, therefore, being non sustainable, liable to be set asi