One Mr. E, K. Deighton, Manager of Maijan Tea Estate filed a complaint for prosecution of the opposite parties under sections 406/409 IPC, in the Court of learned Chief Judicial Magistrate, Dibrugarh. In the complaint the complainant alleged that M/s Giridharilall Sardarmall, a firm ovn^dan.1 managed by the opposite parties, carried on various business in the district of Dibrugarh and other places of the Stat; of Assam, The said firm of the opposite parties was entrusted with various duties from time to time by the Management of the Maijan Tea Estate, including making of deposits to Government account, the dues payable by the Management under various laws, regulations and orders applicable to the Tea Estates. In order to clear some excise duty, the complainant remitted an amount of Rs. 1,00,000.00 (Rupees one lakh) to the accused/opposite parties by a cheque dated 28. 5, 74, on the United Bank of India, Dibrugarh Branch with completed treasury challans entrusting the accused opposite parties to deposit into the treasury and to send back the receipted challans to the complainant. Similarly -on 13th June, 1974, the complainant by another cheque on the said United Bank of India, Dibrugarh Branch remitted a further amount of Rs. 70,000.00 to the accused/opposite parties with completed challans, entrusting to deposit the amount on account of excise duty into the treasury for clearance of teas out of the factory. The said two cheques were issued by the complainant in the name of the firm of the accused-opposite parties v/s Giridharilall Sardarmall for depositing excise duty in favour of the Management of Maijan T. E. having full confidence upon the accused/opposite parties. The accused-opposite parties collected the amounts remitted by the said two cheques, issued by the complainant, through toe current account of said M/s Giridharilall Sardarmall in the United Bank of India, Dibrugarh Branch and kept the amounts in credit of the said current account. The accused-opposite parties in utter disregard to the directions and complete betrayal of the trust and confidence reposed on them, did not deposit the entire amount of Rs. 1,7J,OOO.JO into the treasury on account of excise duty in fovour of the Management of Maijaa Tea Estate but deposited only Rs. 70000.00 into the Government treasury as excise duty. The accused-opposite party dishonestly retained the balance amount of Rs. 1,7J,OOO.JO into the treasury on account of excise duty in fovour of the Management of Maijaa Tea Estate but deposited only Rs. 70000.00 into the Government treasury as excise duty. The accused-opposite party dishonestly retained the balance amount of Rs. 1,00,00.00 for wrongful gain with obvious intention to convert the said amount into their own use after crediting the same to their own bank account. The com­plainant in order to clear the made tea had to deposit the amount of Rs. 1,00,000.00 as duty but the accused-opposite parties failed to do so in complete batraya? of the trust and confidence reposed on them The complainant reputedly asked the accused opposite parties either to refund the amount of Rs. 1,00,000.00 wrongfully retained by them and converted to their own use, or to deposit on account of excise duty in favour of the Management of Maijan Tea Estate, but they did not do so. Thus the accused-opposite parties misappropriated the said amount by committing utter breach of trust. 2. On the basis of the complaint, filed by the complainant in the Court of the learned Chief Judicial Magistrate, Case No. 2174C/74, was registered. The learned Magistrate also recorded initial statement of the complainant. On perusal of the complaint and initial statement, learned Magistrate issued processes. The accused-opposite parties appeared in the Court in response to the summons and they were enlarged on bail. The complainant was examined as PW 1, who was also cross-examined on behalf of the accused-opposite parties. In cross-examination the only question was put whether a civil suit for recovery of the amount of Rs. 1,00,000.00 was instituted by the Management of Maijan T. E. or not, to which the complainant answered positively. Besides, the complainant, two other witnesses PWs 2 and 3 were examined on behalf of the complainant. PW 2 was an employee of the United Bank of India, Dibrugarh Branch who proved the transaction of the cheques and credit of the amount in the account of M/s Giridaanlall Sardarmall. Cross-examination of this witness was reserved. PW 3 was the Head Clerk of the Maijan Tea Estate. He proved various documents to bring home the allegation. The cross-examination of this witness was also reserved. PWs 1 and 2 were examined on 14. 10. 77 while PW 3 was examined on 4. 8. 78. Thereafter, the learned Magistrate by the impugned order dated 7. 12. PW 3 was the Head Clerk of the Maijan Tea Estate. He proved various documents to bring home the allegation. The cross-examination of this witness was also reserved. PWs 1 and 2 were examined on 14. 10. 77 while PW 3 was examined on 4. 8. 78. Thereafter, the learned Magistrate by the impugned order dated 7. 12. 78, discharged the accused-opposite parties, holding that the case was purely a civil dispute and a mere breach of contract which obviously could not give rise to a criminal prosecution. 3, During the pendency of the case in the Court of the learned Magistrate Mr. E, K. Deighton, who filed the complaint in his capacityas Manager of the Tea Estate was transferred and in his place, the petitioner Mr. Debabrata Ghose was appointed as Manager of the Maijan Tea Estate and he had been substituted as a complainant in place of Mr E. K. Deighton. 4. Feeling aggrieved by the impugned order dated 7.12.78 the substituted complainant has filed this revision petition in this Court. 5. I have heard Mr.D.N. Baruah learned counsel for the petitioner and Mr. J. P. Bhattacharjee, learned counsel for the opposite parties. 6. Mr. Baruah has submitted that the learned Magistrate commi­tted manifest errors of law apparent on the face of the records in discharging the accused by the impugned order on the basis of perverse finding that the case was a mere breach of contract although neither the complaint nor the evidences and materials on record any way indicate that there was a contract between the complainant and the accused opposite parties. Evidence and materials on records clearly established that the firm owned and managed by the accused/ opposite parties, was entrusted with various duties pertaining to the management of the tea estate, including the duty to deposit Rs. 1,00,000/- towards excise duty in favour of the Maijan Tea Estate with treasury challans duly filled in and that although the accused opposite parties collected the cheque of Rs. 1,00,000.00 through the current account of their firm, however did not deposit the amount, which was ex-facie a case of criminal breach of trust. The evidences on record clearly established that confidence/trust was reposed on the accused-opposite parties but the accused-opposite parties dishonestly misappro­priated the amount of Rs. l,00,000/-in criminal breach of trust. As such, the impugned order cannot be sustained and is liable to be set aside. The evidences on record clearly established that confidence/trust was reposed on the accused-opposite parties but the accused-opposite parties dishonestly misappro­priated the amount of Rs. l,00,000/-in criminal breach of trust. As such, the impugned order cannot be sustained and is liable to be set aside. 7. Mr. J. P. Bhattacharjee, learned counsel for the accused opposite parties, on the other hand, made the following submissions : i) Mere retention of money by the accused opposite parties could not and did not make out a prima facie case of framing charge under sections 406/409 IPC. A prima facie case must found out from the materials on records that the amount retained by the accused opposite parties was converted into their own use and the same was misappropriated dishonestly; ii) Ext. 1 letter dated 25.7.74 of the complaint asking the accused opposite parties to refund the money amounting to Rs. 1,00,000/-makes out a case of mere transaction between the Management of Maijan Tea Estate and the firm M/s Giridharilall Sardarmall. As such, it cannot be said that learned Magistrate h s committed manifest errors of law in discharging the accused persons by holding that it was a ca e of contract. The finding of the learned Magistrate that it was a case of breach of contract is based on appreciation of materials on record and the finding of fact does not merit interference by this Court in the exercise of revisional jurisdiction. iii) The offence alleged to have been committed in 1974. Long 16 years have already passed. As such, even if the impugned order is set aside and the case is sent back for disposal in accordance with law after framing charges, no useful purpose would be served after 16 years and the proceedings would a mere futile exercise. 8. Mr. Bhattacharjee has referred to the definition of 'dishonesty' under section 24 IPC and also the definition of 'wrongful gain' and 'wrongful loss' under section 23 IPC and has submitted that neither the statement made in the complaint nor in the evidences on records make out a case that the amount allegedly retained has been converted by the accused into their own use and has been dishonestly misappropriated. As such, no case under section 406/409 IPC has been made out against the opposite parties. In support of this contention Mr. As such, no case under section 406/409 IPC has been made out against the opposite parties. In support of this contention Mr. Bhattacharjee has placed reliance on the following decisions of this Court as well as of the Hon'ble Supreme Court-(1) Mustt Piyara Khatun & others vs. Md. Yasin Ali reported in (1982) 1 GLR 419; (ii) Bhawani Shankar Bagaria vs. Sri Ratul Dutta, reported in (1988) 2 GLR 197 (1988 (2) GLJ 22); (iii) Madhavrao Jiwaji Rao Scindia vs. Sambhajirao Cbandrajirao Angre, reported in AIR 1988 SC 709 , and (iv) Sardar Trilok Singh vs. Satya Deo Tripathi, reported in (1979) 4 SCC 396 . In the case of Mustt Piyara Khatun (supra) in para 9 this Court held amongst other: "9. However, there is another allegation of criminal breach of trust against the accused under section 406 IPC. The ingredients of the offence are- 1. That the accused was entrusted with property of with the dominion over it •, 2 That the accused, (i) misappropriated it, or (ii) converted it to his own use, or (iii) used it, or (iv) disposed of it. 3. .That the accused did so in violation of (i) any direction of law prescribing the mode in which such trust was to be discharged, or (ii) any legal contract, express or implied, which the accused had made touching the discharge of such trust. To make out a case of criminal breach of trust it is not enough to allege that the property has been retained. It must be shown that the accused disposed of the property in some way other than that in which he was bound to use and did so dishonestly. Mere retention of property cannot raise a presumption of disho-Dest misappropriation unless there are supplementary material..." In the case of Bhawani Shankar Bagaria (supra") this Court held that it is the duty of the Court to consider judicially whether the evidence on record warrant the framing of charge or not since framing of charge has many evil consequences. In the case of Madhavrao Jiwaji Rao Scindia (supra) Hon'ble Supreme Court in para 8 of the said decision held that- "8, There would be certain situations where it would predominently be a civil wrong and may or may not amount to a criminal offence. In the case of Madhavrao Jiwaji Rao Scindia (supra) Hon'ble Supreme Court in para 8 of the said decision held that- "8, There would be certain situations where it would predominently be a civil wrong and may or may not amount to a criminal offence. We are of the view that this case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting. Several decisions were cited before us in support of the respective stands taken by counsel for the parties. It is unnecessary to refer to them. In course of hearing of the appeals, Dr. Singhvi made it clear that Madhavi does not claim any interest in the tenancy. In the setting of the matter we are inclined to hold that the criminal case should not be continued." In Sardar Trilok Singh (supra) the fact involved was that a truck sold under higher purchase agreement and Financier seizing truck on default in payment of instalment and the buyer launching criminal prosecution. On the facts of the case the Hon'ble Supreme Court held that the proceeding was an abuse of the Court since the dispute was essentially of civil nature. 9. In support of the contention that after 16 years no useful purpose would be served, if the case is remanded for continuing the proceedings, Mr. Bhattacharjee has placed reliance on the decisions of the Hon'ble Supreme Court on the following cases; (i) Union of India & another vs. Lt. Col. G. K. Apte & another reported in AIR 1971 SC 1533 ; (ii) Bihar State Electricity Board vs. Nand Kishore Tamakhowala, repor­ted in (1986) 2 SCC 414 , and (iii) Srioavas Pal vs. Union Territory of Arnnachal Pradesh, reported in AIR 1988 SC 1729 . In the case of Union of India vs. G.K. Apte (supra) the proceeding against G. K. Apte was quashed by the High Court in exercise of power under section 561A of Crimi al Procedure Code. During the pendency of the proceeding the accused opposite party retired. It was found that Union of India did not place some materials before the High Court. During the pendency of the proceeding the accused opposite party retired. It was found that Union of India did not place some materials before the High Court. On the facts of the case Hon'ble Supreme Court held that, where in exercise of its power under section 561 A of Criminal Procedure Code, the High Court has quashed the charges and the proceedings, the Supreme Court would not interfere if it feels that it would not promote the interest of justice to set aside the orders of High Court, even assuming that High Court was somewhat wrong in quashing the charges and the proceedings. In the case of Bihar State Electricity Board (supra) the fact involved in the case was that offences was the failure to supply power to consumer which resulted in monetary loss. No positive acts of omission or commission alleged nor nature of duty cast upon any particular person was stated. On the facts of the case, Hon'ble Supreme Court found that no prima facie case was made out and in view of that held proceedings w liable to be quashed In the case o Srinavas Pal (supra) Supreme Court held that where in respect of the offence of rash and negligent driving of a vehicle causing death to one and injury to some other persons, a cognizance of offences under sections 279, 304A and 338 IPC was taken after a lapse of about 9 years, the trial would be vitiated. 8. In reply Mr. D.N.Baruah, learned counsel for the petitioner, has submitted that the materials oil record clearly makes out a case of commission of offence under sections 406/409 1PC against the accused opposite parties. All the essential ingredients of the offence under sections 406/409 IPC has been established by the evidence on rec­ord. Unless the opposite parties by cross examination shake the evidence on record or prove the contrary by adducing evidences, the commission of offence under sections 406/409 IPC by the accused opposite parties cannot be held to have been established. Mr. Baruah has submitted that reposing trust and confidence on the opposite parties the Management of Maijan Tea Estate entrusted on them with definite direction to deposit Rs.l lakh into the Government treasury on account of excise duty. Mr. Baruah has submitted that reposing trust and confidence on the opposite parties the Management of Maijan Tea Estate entrusted on them with definite direction to deposit Rs.l lakh into the Government treasury on account of excise duty. They collected the money through the bank account of their firm and kept the money in their custody and without depositing the amount in spite of repeated request, and converted the same for their own use and thereby dis­honestly misappropriated the money in breach of trust. The commission of offence was complete soon after the amount was dishonestly retained and misappropriated in breach of trust and that giving chance to the opposite parties by the letter marked as Ext. 1 either to deposit the amount of Rs. 1 lakh into the Government treasury or to make refund thereof, could not and did not operate as waiver or exonerated them from the offence of criminal breach of trust. On the contrary, non deposit of the amount of Rs.l lakh into the treasury on account of excise duty and/or non-refund thereof to the Management of Maijan Tea Estate, after they have given chance, clearly established the dishonest misappropriation of the amount in betrayal of the trust and the commission of offence under sections 406/409 IPC. Mr.Baruah has submitted that the decisions cited on behalf of the opposite parties do not apply on the facts of the instant case. In the instant case the evidences on record have clearly established the case of commission of offence under sections 406/409 1PC by the accused opposite parties. Mr. Baruah has further submitted that the case of commission of offence under section 406/409 IPC against the opposite parties have been established mainly by documentary evidence and the accused opposite parties are to cross examine PWs 2 and 3, and whose evidence are based on documents and as such the delay, for which the complainant is any way responsible, will not cause any prejudice to the opposite parties nor will vitiate the proceeding. 9. I have considered the submissions made on behalf of the petitioner as well as on behalf of the opposite parties and 1 have perused the materials on records. On perusal of the materials on records, I find that prima facie a case of commission of offence under section 406/409 IPC has been made out against the opposite parties. 9. I have considered the submissions made on behalf of the petitioner as well as on behalf of the opposite parties and 1 have perused the materials on records. On perusal of the materials on records, I find that prima facie a case of commission of offence under section 406/409 IPC has been made out against the opposite parties. The materials on record do not at all support the finding of the learned Magistrate that a case of mere breach of contract has been made out and as such, the finding is perverse. I find sufficient force in the submission made on behalf of the petitioner. The ratio of the decisions of the cases of this Court and of Supreme Court on which the reliance on behalf of the opposite parties have been placed, do not apply on the facts of the instant case. Evidence led by the complainant have prima facie made out a case in respect to the ingredients of offence of breach of trust and not at all a case of breach of contract. The commission of offences under section 406 /409 IPC, alleged to have been committed by the opposite parties has been sought to be established by (he complainant petitioner mainly on documentary evidences which have been filed and exhibited. As such, defence would not be prejudiced in disproving the contents of the documents which were exhibited to prove the offence against them, by cross-examination or by adducing evidences even at this late stage. For the aforesaid reasons, the impugned order can not be sustained. The petition is allowed and the impugned order dated 7. 12. 78 passed by the learned Magistrate, Dibrugarh in Case No. 2174 C/74 is set aside. The case is remanded to the Court of learned Chief Judicial Magistrate, Dibrugarh, for disposal in accordance with law and in the light of the above observations either by himself or by a Judicial Magistrate competent to try the case/The case should be disposed of expeditiously, preferably within a period of 6 months from the date of receipt of records.