Judgment :- First respondent pledged some ornaments and on its security secured a loan from the Tritty branch of the North Malabar Gramin Bank of which the petitioner is the Manager, after executing an agreement also. The Bank demanded the amount back and the first respondent remitted the same. But the ornaments were not returned by the petitioner for the reason that a loan transaction by another person for which the first respondent stood surety was not discharged. First respondent prosecuted the petitioner before the Judicial First Class Magistrate, Mattannoor in C.C. No. 3/86 for offences punishable under section s409 and 420 I.P.C. Petitioner seeks to quash the complaint invoking the inherent powers of this Court. The short question for consideration is whether the facts constitute offences under the above sections. 2. Section 409 involves criminal breach of trust as defined in S. 405 of the Penal Code there must be entrustment with property or with dominion over the same. Admittedly there was entrustment of the ornaments. The other ingredients required are dishonest misappropriation or conversion of the property by the accused for his own use. Those ingredients are not there because the ornaments continued with the bank as earlier and it was possessed only as security. The only difference is that when one transactions was closed it was retained as security solely for another transaction. No question of misappropriation or conversion is involved. Dishonest use or disposal of the property in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any legal contract, express or implied, which the accused made touching the discharge of such trust is also sufficient to constitute the offence. The argument was that the ornament was used by the petitioner, in his capacity as Manager, as security for the transaction to which first respondent was a surety, in violation of the first respondent was a surety, in violation of the provisions of the legal contract entered into at the time of the pledge. There is no such allegation specifically. Still that contention also could be considered because such a case could be brought within the allegations. 3. Annexure 4 is copy of the agreement executed by the first respondent at the time of the loan transaction. There is no such allegation specifically. Still that contention also could be considered because such a case could be brought within the allegations. 3. Annexure 4 is copy of the agreement executed by the first respondent at the time of the loan transaction. That agreement contains a provision by which the first respondent authorised the bank to treat the ornaments not only as security for that loan transaction but also for any other transaction or liability towards any branch of the Bank, existing or to be incurred in future. The liability of a surety is joint and several with that of the principal debtor. Therefore the liability as a surety also, whether existing or future, comes within the ambit of the above provision in the agreement. First respondent has no case that he is not having the liability towards the bank as surety for the loan transaction of another person. The action of the petitioner in treating the ornaments as security for that transaction cannot, therefore, be said to be dishonest use or disposal in violation of the terms of the legal contract constituting an essential ingredient of the offence touching discharge of the trust. Petitioner was only acting according to the terms of the agreement. Treating the ornaments as security for another transaction coming within the purview of the agreement does not involve dishonest use or disposal in violation of contract touching discharge of the trust. 4. Under S. 171 of the Contract Act, in the absence of a contract to the contrary' bankers could retain as a security for a general balance of account, any goods bailed to them. This right is available only to certain categories of persons. Other could do so only if there is an express contract to that effect. The argument on behalf of the first respondent was that Annexure 4 contains a contract to the contrary as envisaged in S. 171 of the Contract Act and therefore that provision is not applicable. I was not able to find any such contract to the contrary. On the other hand Annexure 4 only contributes to the enforcement of the right under S. 171. Allegations in the complaints thus not only do not constitute an offence punishable under S. 409 of the Penal Code, but specifically exclude that offence. I was not able to find any such contract to the contrary. On the other hand Annexure 4 only contributes to the enforcement of the right under S. 171. Allegations in the complaints thus not only do not constitute an offence punishable under S. 409 of the Penal Code, but specifically exclude that offence. Even without the relevant provision in Annexure 4 the petitioner, on behalf of the bank, could have retained the ornaments as security under S. 171 of the Contract Act, without incurring the risk of commission of an offence of criminal breach of trust because such retention is allowed by law and it does not involve breach of any term of agreement. 5. For offence under the Penal Code just like many other offences mens rea is an integral part of the crime. The word 'dishonestly' appearing S. 405 I.P.C. gives clear indication regarding necessity for the existence of the mental element. There is no allegation of any dishonestly against the petitioner who was only acting on behalf of the back as its Manager. He was only retaining the ornament on behalf of the Bank under the belief that he is entitled to do so until the entire liability of the first respondent is wiped off. Even taking for granted that he was not entitled to do so it could only be taken as a bona fide assertion of civil right and no offence is involved. 6. In order to constitute the offence of cheating as defined in S. 415 and made punishable under S. 420, I.P.C. there must be the following ingredients (1) Fraudulent or dishonest inducement of a person by deceiving him. (2) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property or the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived and (3) In cases covered by the latter part of item 2 above, the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. Mental element is a strong and integral part of the offences under the Section. Mental element is a strong and integral part of the offences under the Section. The allegations in the complaint do not constitute the mental element or any of the other ingredients constituting that offence. It follows that the allegations in the complaint do not constitute any of the offences. 7. Along with the complaint the first respondent made an application for search and seizure of the ornaments from the Bank and without any hesitance the Magistrate granted that prayer. The Bank was searched and the ornaments were seized and produced in court. Search add was ordered without issuing summons under S. 91 and without the satisfaction that it will not be produced if required by summons or requisition. The action of the Magistrate in this respect cannot be justified. 8. The Magistrate has taken cognizance without due application of mind to the allegations in the complaint in order to satisfy whether the allegations do constitute any offence. In order to satisfy the definition of S. 2(d) of the Code itself the complaint should show commission of the offence. In order to constitute an offence there must be some act or conscious omission which is made penal by any provision of law. Under S. 190 also in order to take cognizance the facts must constitute the offence. Taking cognizance on the basis of allegations which do not constitute any offence is illegal. Issue of process and the consequent trial on the basis of such cognizance will be nothing short of abuse of process of court. First respondent had no justification in filing the complaint. He was actuated by mala fides. It is the duty of this court to avoid the harassment by the trial of such a case. The petition is allowed and the complaint is quashed. The magistrate will return the ornaments to the petitioner who is the accused. Petitions allowed.