JUDGMENT - S.M. DAUD, J.:---This petition under section 482 of the Code of Criminal Procedure, 1973 (Code) and Article 227 of the Constitution of India is to quash the prosecution initiated against the petitioner upon a complaint moved by the 1st respondent in the Court of the Additional Chief Metropolitan Magistrate, 14th Court, Girgaum, Bombay. 2. Petitioner (hereinafter to be referred to as the 'Accused') is the brother of the deceased husband of respondent 1 (hereinafter to be referred to as the complainant') their third brother Vijay having died on 23 April, 1982. Complainant's husband inder died on 30 July, 1982. Inder married twice, the first wife being a Swedish lady Barbro, from whom he has two issues viz. Rajiv and Kavita. That marriage ended in a divorce. Whereafter Inder on 30 August, 1964 married the complainant. The union has been blessed with a son named Shiv. Inder was an enterprising Industrialist and was a leading figure in several industrial concerns. The principal company through which he and his associates functioned was J.B. Advani Co. Pvt. Ltd. (Advani Company). One of the subsidiaries of Advani Company is Advani-Oerliken Ltd. (AOL). By resolution dated 15 January, 1960, Advani Company had in its extra ordinary general meeting passed a resolution entitling its directors including Inder to take in their individual names new shares of AOL and not as nominees of Advani Company. It thus came about that there stood 115 shares of Advani Company and 6480 shares of AOL in the name of Inder. Very soon after the demise of Inder trouble broke out between the complainant representing herself and her son Shiv on the one hand and the Accused representing various members of his family and Inder's children from the first wife and that lady herself on the other hand. This led to litigation. Shiv and the complainant instituted Administration Suit No. 1458 of 1983. On the other side was instituted a probate petition by the Accused, seeking the probate of a Will executed by Inder. The Will was challenged by the complainant and Shiv for which reason the probate petition came to be registered as Testamentary Suit No. 304 of 1983. Shiv and the complainant instituted Administration Suit No. 1458 of 1983. On the other side was instituted a probate petition by the Accused, seeking the probate of a Will executed by Inder. The Will was challenged by the complainant and Shiv for which reason the probate petition came to be registered as Testamentary Suit No. 304 of 1983. Upon a Motion taken out by Shiv and the complainant in the Administration Suit, an order came to be passed on 29 March, 1984 by Pendse, J., and the relevant recitals from that order read as follows :- “Without prejudice to the rights and contentions of the parties to the suit : 1. Court Receiver appointed receiver of all the properties belonging to I.T. Mirchandani (Inder) H.U.F. including the following : (iii) 2/5 undivided share in 115 shares of J.B. Advani Co. Pvt. Ltd. (Advani Company) bearing distinctive Nos…… of the face value of Rs. 5,000/- each. (iv) 2/5 undivided share in 6480 shares of Advani-Oerlikan Ltd. (AOL) bearing distinctive Nos…. of the face value of Rs. 100/- each. The Court Receiver not to take physical possession of Item (iii) and (iv) of this clause. 2. Defendant No. 6 (Accused) as agent of the Court Receiver do collect the dividend income on the aforesaid 2/5th undivided share of 115 shares of Advani Co. and 2/5th undivided share in 6480 shares of AOL and undertakes to pay the same to the Court Receiver who will pay the 50% thereof to M/s. Gagrat Co., on behalf of the plaintiffs (Shiv and the complainant)”. The administration suit came to be extensively amended pursuant to Pratap, J., on 12-4-1985 allowing a Chamber Summons taken out by Shiv and the complainant for that purpose. In the plaint, the amendments are marked Rider 'A' and Rider 'B'. The two companies, viz. Advani Co. and AOL, were impleaded to the suit as defendants 9 and 10, the Accused already being there as defendant No. 6. In the plaint, the amendments are marked Rider 'A' and Rider 'B'. The two companies, viz. Advani Co. and AOL, were impleaded to the suit as defendants 9 and 10, the Accused already being there as defendant No. 6. The reliefs claimed by Shiv and the complainant vis-à-vis the shares were formulated thus in the plaint : “(m(1) for a declaration that the action of defendants No. 6 and 9 (Accused and Advani Co.) in removing the names of plaintiff No. 1 (Shiv) and the deceased (Inder) from the 115 shares in Defendant No. 9 (Advani Co.) earlier standing in the names of the deceased (Inder) and Plaintiff No. 1 (Shiv), defendant No. 2 (Rajiv), Defendant No. 6 (Accused), and Vijay Kumar in wrongful; (m(2) for a declaration that the action of Defendants Nos. 6 and 10 (Accused and AOL) in removing the names of deceased (Inder) and Vijaykumar from the 6480 shares in defendant No. 10 (AOL) earlier standing in the names of the deceased (Inder) Defendant No. 6 (Accused) and Vijaykumar is wrongful; (m(3) that this Hon'ble Court be pleased to declare that the said H.U.F. (Shiv and Complainant) continues to be entitled to 2/5th share, right, title and interest in the said 115 shares of Defendant No. 9 (Advani Co.); (m(4) that this Hon'ble Court be pleased to declare that the said H.U.F. (Shiv and Complainant) continues to be entitled to 2/5th share, right, title and interest in the said 6480 shares of Defendant No. 10 (AOL); (m(7) 9th 10th Defendants (Advani Co. and AOL) are bound and ( (8) liable to offer right shares and other shares to I.T. Mirchadani H.U.F. in the 115 and 6480 shares of the respective companies.” There was also a prayer for the rectification of the Registers of Members of the two companies. Some correspondence took place between the parties to the suit and/or their Advocates. Shiv and the complainant queried the companies as also the Accused as to how the names of Inder and Shiv had been deleted from the Registers of Members and how the sole name of Accused came to be substituted in that place. Accused/Companies of their Advocates gave replies questioning the right and also the propriety of the queries being put to them. It was in this background that the compliant figuring in this petition came to be instituted on 29-9-1987. 3. Accused/Companies of their Advocates gave replies questioning the right and also the propriety of the queries being put to them. It was in this background that the compliant figuring in this petition came to be instituted on 29-9-1987. 3. The compliant runs into 27 closely-typed pages and has a certain number of accompaniments thereto. Initially, it was also against the Secretaries and the Directors of the two companies and now it is only against the Accused. Excluding matter not pertinent to the issue that arise, the complaint alleges that Inder was the sole owner of the 115 and 6480 shares of Advani Co. and AOL respectively. That was the position until the date of his death. Sometime before his death the shares were shown as standing also in the names of Shiv and Rajiv. The accused who had not paid a pie for the acquisition of the shares had by misusing his position and influence with the Companies got the names of Inder, Shiv and Rajiv deleted. As a matter of fact neither the Accused nor Vijay had any right, title or interest in the shares. Inder had informed the complainant that “as a goodwill gesture” he had been sharing the dividend income divided from the said shares with his brothers in the ratio of 40:30:30. Three separate dividend warrants were being issued by the companies during the life time of the deceased. Taking advantage of the death of Inder, Accused had got all other names deleted, retaining only his own with the result that there was now a single dividend warrant issued in his sole name. This came to the knowledge of the complainant of late and attempts made by her to get clarifications or even information had been foiled by evasive answers given by the Accused and/or his associates. Being the holder of a 40% interest, the complainant and her son Shiv should have been offered the new equity/bonus shares issued by the AOL. Though the Court Receiver had offered to purchase the requisite number of shares in proportion to the 40% interest, the companies at the behest of the Accused had declined to comply with his demand. In fact upon being so intimated by the Court Receiver, the allotment of new equity shares was abandoned and substituted by bonus shares. Accused managed to get the bonus shares allotted exclusively to himself. In fact upon being so intimated by the Court Receiver, the allotment of new equity shares was abandoned and substituted by bonus shares. Accused managed to get the bonus shares allotted exclusively to himself. By placing himself in this position, the Accused was making wrongful gain by appropriating the sitting fees of the directors, emoluments paid unto them different allowances admissible, perquisites travel expenses, use of companies guest houses around India and entertaining expenses, etc. In direct proportion to these gains, was the wrongful loss being caused to the Complainant and her son. He was also violating the rust reposed in him by the order dated 29 March, 1984. Being the Agent of the Court Receiver, the criminal breach of trust committed by the Accused was punishable under section 409 I.P.C. Having misappropriated the estate of the deceased Inder, he had rendered himself liable for punishment also under section 404 I.P.C. Complainant's preliminary statement was recorded nearly two month after the lodging of the complaint. This was done on 29 September, 1987, it would be necessary to reproduce that statement and it reads thus : “I am the complainant. I know all the accused. Accused No. 1 is brother of my husband. My husband passed away on 30th July, 1982. At the time of the death he was Managing Director and Chairman of Advani Oerlikon Ltd. He was also the director of J.B. Advani and Company, a principal company of Advani Oerlikon. My husband was Karta of Hindu Joint family consisting of himself, myself and our son Shivkumar. There were 115 shares of J.B. Advani and 6480 shares of Advani Oerlikon Ltd. Those shares were standing in the name of my husband. After his death those shares were transferred in the name of accused No. 1 with a connivance of other accused. I asked for the inspection of those shares on many occasion through my Advocate. I was not permitted to take inspection till 1984. There was High Court order dt. 29-3-84 in administration suit. On inspection I found that those were the duplicate shares of J.B. Advani. Remaining shares of Advani Oerlikon Ltd. were standing in the name of Accused No. 1. Court receiver was appointed as per the order dt. 29-3-84 whereby the receiver was kept in charge of Hindu Joint family property. There was High Court order dt. 29-3-84 in administration suit. On inspection I found that those were the duplicate shares of J.B. Advani. Remaining shares of Advani Oerlikon Ltd. were standing in the name of Accused No. 1. Court receiver was appointed as per the order dt. 29-3-84 whereby the receiver was kept in charge of Hindu Joint family property. The accused No. 1 is supposed to collect the dividend from the company and deposit with the Court receiver. Court receiver was to pay us 50% of the dividend. Accused No. 1 was not suppose to deal with those shares. (Perused Exh. D correspondence by Court receiver to accused. The accused No. 1 gave evassive reply saying that the issue of transfer of those shares is already subjudice in the administration suit pending in the High Court. I say that this issue of transfer was not dealt with any way anytime in the chamber summons of Notice of Motion in the High Court. However, the question of new rights security shares was taken up in the said suit. On account of this fraud committed by the accused he is enjoying the position of Director of J.B. Advani, Advani Oerlikon and several associated company, thereby he is enjoying all the benefits to which I am entitled to alongwith my son and we both are being prevented from our legal rights and benefits. (At this stage the complainant is asked to state whether the issue of this transposition was anytime agitated in any proceeding pending in the High Court).” In response to the Magistrate's query the Complainant replied through a purshis which recited thus :- “I say that the issue of the transposition of names which is the subject matter of this complaint has not been agitated in the High Court proceedings, between the parties, though there is a passing reference in my affidavit. I say that the matter has never been brought to the notice of the Hon'ble High Court in the course of arguments nor is there the slightest reference to this transposition of names in any order or judgment of the Hon'ble High Court.” After the purshis had come in, the Magistrate passed the impugned order which reads as follows :- “Heard the complainant. Perused the complaint in substance. Heard the Ld. Advocate Mr. Mehta. Seen the purshis filed by the complainant. Perused the complaint in substance. Heard the Ld. Advocate Mr. Mehta. Seen the purshis filed by the complainant. Issue process under sections 404, 409 I.P.C. against the accused No. 1 only. Sd/- Addl. CMM. i/c 14th Court, Girgaum, Bombay.” 4. This petition by the accused is to quash the Magistrate's order taking cognizance or in the alternative to stay the hearing of the complaint until the final disposal of the Administration suit moved by the complainant. It is the case of the accused that relations between Inder and the complainant were strained. Inder had instituted proceedings to divorce the complainant. Accused had been made one of the Executors of a bequest made by Inder. In that bequest the complainant had been disinherited. Angered at the disinheritance and believing that the best way to prevent the bequest taking effect was to trouble him i.e. the accused, complainant had instituted a series of false cases against him. Complainant knew that there was no truth in the accusations levelled against him. Even during the lifetime of Inder the shares which figure in the complaint stood in the joint names of the deceased, accused and their 3rd brother Vijay. Inder on his own had got the names of Rajiv and Shiv interposed between his own name and that of his brothers. This was done without any resolution of the Board of Directors of the company. After taking the opinion of Counsel the names of Rajiv and Shiv had been deleted. The names of Inder and Vijay had to be deleted pursuant to their deaths. This left only his name standing and that was in accordance with the Articles of Association of both the companies. That Inder and after him his successors in interest had a 40% interest in the shares was admitted by Shiv and the complainant in the suit brought by them and had never been disputed by the accused. In the face of this knowledge it was a brazen falsehood to allege that there had been any tempering with the shares, misappropriation of the estate of the deceased or causing of wrongful loss to the interest of Complainant and/or Shiv. The Complaint did not make out an offence and the Magistrate was in error in taking cognizance. In the face of this knowledge it was a brazen falsehood to allege that there had been any tempering with the shares, misappropriation of the estate of the deceased or causing of wrongful loss to the interest of Complainant and/or Shiv. The Complaint did not make out an offence and the Magistrate was in error in taking cognizance. In any case it gave rise to issues which figured in the Administration suit brought by Shiv and the Complainant and until the said suit was decided, it would be improper for the Magistrate to proceed with the complaint. Complainant asserts the truthfulness of the allegations levelled in the complaint and questions the maintainability of the petition. It is contended that the accused wants to travel outside the complaint and that is not permissible regard being had to the stage at which the case is. The sole question arising for consideration is whether the complaint deserves to be quashed and if not whether the hearing thereof be stayed pending the final disposal of the administration suit. 5. Principal governing the inherent power of the High Court to quash proceedings in proper cases are well settled. To quote from the latest reported decision on the subject (Madhavrao Jiwajirao Scindia and others v. Sambhajirao Chandroji rao Angre and others)1, 1988(2) Bom.C.R. 232 : (1988)1 Supreme Court Cases, 692 :- “The test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” When the authorities refer to “recitals appearing in the complaint” it is not to be understood as saying that the High Court is precluded from looking into the substance cloaked by verbiage. The recitals in the complaint do constitute the basic material to appraise an “issue process” order. While quashing petitions cannot substitute for the Magistrate's power of discharge, it should not be assumed that a mere splashing of pejoratives or insinuations in a complaint suffice to justify an order taking cognisance. The material placed before the Magistrate has to be scrutinised to see that strong words have not swayed a real enquiry into the substance, which alone is the basis warranting the giving of a call to an individual to face an accusation. Many a times recitals in the complaint are forth to cloak vacuity. The material on which the complaint really rests cannot therefore be ignored for it may be at a variance with the recitals therein. Inconsistencies of this nature would justify the quashing of a prosecution. This is because the inherent power of the High Court under section 482 of the Code is to secure the ends of justice, and, as has been held in the (State of Karnataka v. L. Muniswamy and others)2, A.I.R. 1977 S.C. 1489, these are far wider than the ends of law, though of course justice has to be administered in accordance with the law. In other words, the recitals in the complaint means the substance thereof and this includes material referred to though not wholly tendered before the Magistrate at the stage at which he is called upon to take cognisance. This is not to be understood as a usurption of the Magistrate's power to appraise material for framing of a charge or passing of an order of discharge. The inherent power has to be used cautiously and sparingly, but not so rarely as to allow prosecutions actuated by ulterior motives to flourish unchecked. Tested in this light, it is not possible to restrict the assessment in the present case to what complainant has chosen to disclose of the documents, correspondence and the happenings in the civil litigation between the parties. The unrevealed material of course from the above sources only cannot be ignored it was submitted that if there be any material which is inconsistent with the case put forth before the Magistrate, the same can be used to contradict the complainant and her witnesses when they testify before him. The unrevealed material of course from the above sources only cannot be ignored it was submitted that if there be any material which is inconsistent with the case put forth before the Magistrate, the same can be used to contradict the complainant and her witnesses when they testify before him. In other words, the same cannot be looked into at this stage for that would be in violation of section 145 of the Evidence Act. A contrary view has been taken in (Biswanath Prasad others v. Dwarka Prasad and others)3, A.I.R. 1974 S.C. 117. In that case it was held that section 145 of the Evidence Act does not apply vis-à-vis a party to the lis. Section 145 applies to a witness and not to a party to the action, albeit the said party may appear as a witness in the proceedings. If the prior statements made in writing or reduced to writing constitute admissions or contradictions vis- a- vis what is alleged in the lis in which they are sought to be used, their mere existence is enough for being used against the party. This is because such previously recorded material is evidence proprio vigour. Thus understood it will be permissible to look into the material to assess the substance of what the complainant has alleged in the complaint itself. 6. First of all, does the complaint itself contain material disclosing the commission of offences by the accused? It speaks of the shares having been acquired by Inder with his funds and for himself and the Register of Membership of the two companies showing him to be the exclusive owner thereof. In para 14 it is alleged that the shares were held by Inder for and on account of a H.U.F. consisting of himself, Complainant and Shiv. As such, after the demise of Inder the shares could not have been transferred to the name of the accused. Without having paid any part of the consideration, the accused has got himself recorded as the exclusive owner of the shares and thereby derived enormous benefit to which he is not entitled. Knowing that this story of Inder being the exclusive owner or as the karta of the H.U.F. would not stick., the Complainant comes out with an explanation as to how the accused and Vijay were sharing dividend from the shares during the lifetime of Inder. Knowing that this story of Inder being the exclusive owner or as the karta of the H.U.F. would not stick., the Complainant comes out with an explanation as to how the accused and Vijay were sharing dividend from the shares during the lifetime of Inder. The explanation is, that this sharing in the dividend income was “a goodwill gesture” made by Inder to his brothers who were given a 60% shares in the said income. It is admitted that three separate dividend warrants were being issued, which means that the names of accused and Vijay had came to be included in the register of Members of the two companies, and, in their capacities as the joint shares of the shares along with lnder. This demolishes the constant refrain about the very insertion of the names of the Accused and Vijay during the lifetime of Inder as being something done after his death or as an act fraudulent. If three separate dividend warrants were being issued, the obvious inference is that the accused and Vijay had a share of 30% each in the shares of the two companies, that Inder was not the exclusive owner thereof, and that whatever interest the Complainant and Shiv may or do have, it is restricted to the 40% interest of Inder. This is also the admission of Shiv and the complainant in the administration suit. I have referred to riders 'A' 'B' and the order dated 29th March, 1984 passed by Pendse, J. These constitute an admission which can be used against the complainant in that it belies the assertion in the complaint that the very intrusion of the name of the accused in the shares was the result of a criminal act committed by him. In relation to the inclusion and deletion of the names of Rajiv and Shiv, the very inclusion was irregular. It was done on a direction of Inder. The deletion was done pursuant to a resolution of the Board of Directors and in conformity with advise given by Counsel. In any way, the mere deletion does not give rise to an inference of dishonesty. The Articles of Association of both the companies have been made available and they bear out the contention put forth by the accused. The deletion was done pursuant to a resolution of the Board of Directors and in conformity with advise given by Counsel. In any way, the mere deletion does not give rise to an inference of dishonesty. The Articles of Association of both the companies have been made available and they bear out the contention put forth by the accused. Article 28 of the Articles of Association of AOL says--- “The executors or administrators of a deceased sole holder of a share shall be the only persons recognised by the Company as having any title to the share. In the case of a share registered in the names of two or more holders the survivors or survivor, or the executors or administrators of the deceased survivor, shall be the only persons recognised by the Company as having any title to the share.” The Articles of Association of Advani Co. Clause 8 says:--- “In the case of the death of a member, the survivors or survivor where the deceased was a joint holder and the executors or administrators of the deceased where he was a sole or only surviving holder, shall be the only persons recognized by the Company as having any title to his shares….” In any case and assuming the worst viz. that the deletion of the names of Rajiv and Shiv and the inclusion of the sole name of the accused in the Register of Members was illegal or irregular, that would not give rise to an inference of criminal culpability. It would be a question of right and title governed by the civil law and that is already what is being agitated in the administration and testamentary suits. A breach of trust, assuming that the accused has committed one, does not necessarily amount to a criminal offence. In Madhavrao's case (supra) it is observed--- “There would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence.” The contest between the parties may be formulated as raising the following issues :--- (1) Whether Inder was the exclusive owner of the shares or the owner thereof along with the Accused and Vijay. (2) whether after Inder's death Complainant Shiv Rajiv were entitled to be brought on the Registers as Successors to Inder; (3) whether the deletion of the names of Rajiv and Shiv was illegal or otherwise; (4) whether the correction of Registers to show the name of the accused exclusively is illegal or otherwise; Having regard to the Articles of Association, the averments in the administration suit and the correspondence exchanged between the parties the breach of trust, if any, in the present case would be one giving rise to a civil liability. The allegation that the accused is enjoying privileges as a Director to the exclusion of the Complainant and/or Shiv is again a question of civil rights. If the Articles of Association entitle the accused to enjoy these privileges, he is doing no wrong. Assuming that the complainant Shiv Rajiv are entitled to share in the privileges, the deprivation cannot be ascribed to a criminal act, but to the assertion of a right said to vest in accused by virtue of the Articles of Association and the law. 7. The alleged evasive and cryptic replies given by or on behalf of accused and the companies to the specific queries of complainant and Shiv is cited as evidence of criminality. Correspondence between litigants not known for complete frankness. A certain degree of caution is the hallmark of such correspondence. In any case the querists had taken recourse to litigation. The procedural law contains instruments for extracting information. The unrevealing replies seem to have led complainants to entertain suspicious wholly out of proportion to the situation. This coupled with a certain naivete about legal words and phrases are at the back of the prosecution. The purshis given by the complainant in response to a query of the Magistrate bears out the above inference. 8. The appropriation of the bonus shares by accused has been pressed into service to support the complaint. Now the fact that bonus shares have been issued in the name of accused does not mean that Inder's estate i.e. 40% share therein stands wiped out. A bonus issue is not a method of raising new capital. It is a advice to increase the nominal amount of issued share capital by using undistributed profits to pay it up. Holders of existing shares get an automatic right to be allotted bonus shares. A bonus issue is not a method of raising new capital. It is a advice to increase the nominal amount of issued share capital by using undistributed profits to pay it up. Holders of existing shares get an automatic right to be allotted bonus shares. Broadly speaking, a bonus issue is an accretion to the existing shareholding of a person. Therefore, Inder's estate will get an interest in the bonus shares in exact proportion to that in the existing shares. 9. Paras 38 and 39 of the complaint speak of accused violating the "direction of law "though entrusted with the shares as an Agent of the Court Receiver. It is not clear if the violation consists in not paying the dividend Accused was enjoined to collect and pass on to the Advocates of complainant and Shiv. If there be any laxity in that regard the ensuing liabiltiy would be civil in nature. 10. A close examination would thus show that the complaint read in the light of the other material reveals no offence - certainly not the ones punishable under sections 404 or 409 IPC. The result of the foregoing discussion is that the petition succeeds. The complaint is dismissed and the summons issued to Accused stands revoked. Rule in these terms is made absolute. Rule made absolute. -----