Judgment INDU PRABHA SINGH, J. 1. This is an application under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the prosecution of the petitioner on the basis of Complaint Case No. 265(C)/96/Tr.No. 541/96 as also the order dated 4.12.1996 passed by Shri Pandey Janardan Prasad, Judicial Magistrate, Barh, whereby and whereunder summons were issued against the petitioner for his prosecution under Sections 406 and 407 of the Indian Penal Code. 2. From the petition, it appears that opposite party No. 2, Shri Raghuvansh Prasad Singh being the President of the Teachers Association of Ram Lakhan Singh Yadav College, Bakhtiyarpur had filed a complaint petition on 26.8.1996 against the petitioner making out various allegations against him. In brief the allegations are that the petitioner in the capacity of the Principal of the said College was the custodian of its accounts as also the drawing and disbursing authority of the teaching and non-teaching employees of the said College. In June 1996, the petitioner received the salary of the staff of the College for the month of May 1996 but the same was not released in their favour. Moreover, the petitioner did not deposit the provident fund deduction of the teaching staff of the College since January 1996 to May 1996 in their respective accounts. He only deposited the provident fund deduction of the teaching staff of the College for the month of May 1996 only and thereby he misappropriated the provident fund deduction from January 1996 to April 1996. The salary of the staff of the College for the month- of June 1996 received by the petitioner was kept by him till second week of July 1996. The salary for the month of June 1996 was also not disbursed to them causing starvation to the teaching employees of the College. In June 1996, a huge amount was collected from the students which was to be deposited daily in the Bank accounts of the College but the Principal (petitioner) in connivance with the bursar and the accountant had misappropriated the same. The accounts of the College are not being maintained properly and a huge amount of D.A. and PF. of the staff of the College was misappropriated by the petitioner. The accounts of the College are not being maintained properly and a huge amount of D.A. and PF. of the staff of the College was misappropriated by the petitioner. On these grounds amongst others a complaint petition for the offences under Section 406 read with Section 408 of the Indian Penal Code was filed by opposite party No. 2 against the petitioner. On the receipt of this complaint, opposite Party No. 2 was examined on solemn affirmation and the learned Acting Additional Chief Judicial Magistrate transferred the case under Section 192(1) of the Code in the Court of Shri Pandey Janardan Prasad, Judicial Magistrate. The learned Judicial Magistrate after holding an enquiry and examining the witnesses by the impugned order dated 4.12.1996 ordered for issuance of the processes against the petitioner for his appearance to face the trial under Sections 406 and 409 of the Indian Penal Code. This order has been challengedin the present petition. 3. The petitioner has further contended that he joined as a Principal of the College on 21.4.1994. At that time though the salary of the month of February 1994 was paid to the staff of the College, the provident fund and provident fund loan though deducted from the salary and for the last 56 months were not credited against the respective accounts of the staff by the predecessor in office of the petitioner. After assuming of the charge of the post of the Principal, this petitioner tried to regularise the payment of salary etc. from January 1994 to September 1994. So far as the D.A. and PF. are concerned, they have been credited for the period from June 1994 to September 1994. From the date of joining of the petitioner as Principal the up-to-date salary till May 1996 has been paid to the teaching and non-teaching staff of the College. So far as the salary for the month of June 1996 to the teaching staff is concerned, the same could not be paid for want of sufficient fund. Similarly for the same reason the P.F., P.F. loan amount, D.A., etc. have also not been credited to the accounts of the staff of this College for different periods. Though a sum of Rs. Similarly for the same reason the P.F., P.F. loan amount, D.A., etc. have also not been credited to the accounts of the staff of this College for different periods. Though a sum of Rs. 7.10 lakhs per month is required for the payment of salary to the staff of the College but only 70% of the same is being received from the University as a result of which payment of the salary, provident fund, etc. is bound to fall in arrears. In Magadh University, there is centralised payment system, according to which the Principal and bursars of all the constituent Colleges are required to prepare salary bills inclusive of P.F., P.F. loan and D.A. on P.F. and submit the same to the University which is passed by the Finance Officer and the Registrar of the Magadh University and thereafter 70% of the same is sent to the office of the Principal. In each constituent College, there is Bank account (in the name of Magadh University Fund Account). The amount received by way of salary from the University is sent to the aforesaid Magadh University Fund Account which is operated jointly by the Finance Officer and the Registrar of the Magadh University along with the Principal of the College. Even for the payment of the salary of the individual teaching and non-teaching staff of the College the cheques are issued under the signatures of the Registrar and the Finance Officer of Magadh University and countersigned by the Principal. From the aforesaid facts, it would appear that in the matter of payment of salary, deduction of P.F., P.F. loan, D.A. on P.F. are concerned, the petitioner has no hand in the same and he has to function simply as post office in between the University and the employees of the College. Whatever amount is received from internal sources of the College is also credited to the accounts of the college and, therefore, there could be no question of any temporary embezzlement of any such amount. On these grounds, it has been contended that the allegation against the petitioner are mala fide and no case of criminal breach of trust could be made out against him. 4. On these grounds, it has been contended that the allegation against the petitioner are mala fide and no case of criminal breach of trust could be made out against him. 4. For the aforesaid reasons, it has been contended that the criminal prosecution of the petitioner would be an abuse of the process of the Court and hence his entire criminal prosecution in the aforesaid complaint case is liable to be set aside. The learned Judicial Magistrate, Barh without taking into account the aforesaid facts, in a mechanical manner has taken the cognizance of the offence and has issued summons against the petitioner. On these grounds it was prayed that the impugned order dated 4.12.1996 be set aside along with the entire proceeding in Complaint Case No. 265(C)/96/Tr. No. 541/96. 5. Some supplementary affidavits were also filed on behalf of the petitioner. In the fourth supplementary affidavit details have been given about the disbursement of the fund by the Principal of the College which is received from the University, according to which the Principal only happens to sign the cheque of the University as third signatory. There is no allegation against the petitioner that the cheques/drafts received by him from the University was hot deposited in the Bank. If this was so, he could not have, withdrawn any money out of the same by only his signature. The University itself admitted in different letters that they have not sent the P.F. amount payable to the staff of the College. As such the same could not be paid to them. Since the University has not allotted any fund for the payment of the salary for the month of June 1996 till date the same could not be paid to the teaching staff of the College. It is very pertinent to mention here that there is no complaint by the University ever made against the petitioner or the College with regard to the non-deposit of the amounts mobilised through internal sources neither the bursar nor the accountant has been made accused in the instance case. Not a single Officer of the University has come forward to support the case of opposite Party No. 2 against the petitioner for misuse and misappropriation of the fund sent by the College. On these grounds also, it has been contended that the impugned order as also the entire criminal prosecution against the petitioner be quashed. 6. Not a single Officer of the University has come forward to support the case of opposite Party No. 2 against the petitioner for misuse and misappropriation of the fund sent by the College. On these grounds also, it has been contended that the impugned order as also the entire criminal prosecution against the petitioner be quashed. 6. I have heard the parties in detail. I have also mentioned about the facts of this case is detail in order to appreciate the allegation made against the petitioner. The ball has been set rolling by filing a complaint petition, as contained in Annexure 1, by opposite party No. 2 against the present petitioner making different and various allegations against him. It is on the basis of this complaint petition that the cognizance against the petitioner has been taken. Though, at this stage the merits of this complaint petition are not required to be examined by this Court in detail, however, certain very important features are required to be noted in this connection. The complaint petition has been filed for the offences under Sections 406 and 408 of the Indian Penal Code. According to the case made out in the complaint petition, the petitioner used to receive various amounts from Magadh University towards payment to the salary, etc. to the staff of the College. It has been alleged that it is with respect to the same amount that he committed criminal breach of trust. In this connection, it is interesting to note that in the complaint petition no Officer of Magadh University from which the remittances are said to have been received by the petitioner has been made a witness. Since, it was the University that remitted the amounts to the Principal, the Officers/Staff of the University would have been the most competent persons to speak about them. They have not even been named as a witness in the complaint petition. Moreover, it is well known that the accounts of the College are periodically audited by the Auditor of the College but the University has not come forward with any discrepancy in the accounts of the College. They have not even been named as a witness in the complaint petition. Moreover, it is well known that the accounts of the College are periodically audited by the Auditor of the College but the University has not come forward with any discrepancy in the accounts of the College. Another important thing to be noted in this connection is that the cheques received from the University were required to be deposited in the Bank account of the College and it has been alleged that the Principal (petitioner) in connivance with the bursar and the accountant of the College has misappropriated the same. It is, however, interesting to note that neither the bursar nor the accountant has been made accused in the complaint petition. On behalf of the petitioner, it has been submitted that he could not have withdrawn any amount from the college unless the cheques issued also were also signed by the Finance Officer and the Registrar of the Magadh University. He was only the third signatory to any such cheque. It has been pointed out that normally sufficient fund is not received from the University for the payment of the salary etc. to the staff of the College as a result of which normally only 70% of the Salary etc. is paid. In this connection my attention has been drawn to certain portions of the order passed by this Court in CWJC No. 8889 of 1992, Dr. Amar Nath Singh and others v. The State of Bihar and others, in which this Court by its order dated 21.2.1994 had noticed that the State Government had not made available the requisite fund to the University as a result of which the University was not in a position to pay the salary, D.A., etc. to the staff of the College. Even when on direction issued by this Court the provision for payment of salary was not made by the State Government and the University, contempt cases were instituted against the concerned authorities. In the present case, however, I am not concerned with those cases as also with theaforesaid writ application. On these basis, however, it has been pointed out that it was not unusual for the University as also the State Government not to make the full payment towards the salary, etc. In the present case, however, I am not concerned with those cases as also with theaforesaid writ application. On these basis, however, it has been pointed out that it was not unusual for the University as also the State Government not to make the full payment towards the salary, etc. to the staff of the College as a result of which the Principal of the College was required to manage the fund in the best possible manner. All those facts have been pointed out to me at the time of hearing of this case. 7. The allegation made against the petitioner is of criminal breach of trust. Before proceeding further I would like briefly state the law on the subject. To constitute the offence of criminal breach of trust, there must be dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which the breach of rust is charged. There must be an entrustment; there must be misappropriation or conversion to ones own use in violation of any legal direction or of any legal contract; and thirdly the misappropriation or conversion or disposal must be with a dishonest intention. Every breach of trust gives rise to a suit for damages. But it is only when there is evidence of a mental act of fraudulent misappropriation that the commission of embezzlement of any sum of money becomes a penal offence punishable as criminal breach of trust. It is this mental act of fraudulent misappropriation that clearly demarcates an act of embezzlement which is a civil wrong or tort, from the offence of criminal breach of trust. Every offence of criminal breach of trust involves a civil wrong in respect of which the complainant may seek his redress for damages in the Civil Court, but every breach of trust in the absence of mens rea, cannot legally justify a criminal prosecution. In every case of criminal breach of trust, a breach of contract is implicit. The determining factor in judging whether a case is one of criminal breach of trust or of criminal breach of contract is whether the person proceeded against had acted dishonestly. 8. A necessary elements of the offence of criminal breach of trust is that there should be entrustment of property to the accused. The determining factor in judging whether a case is one of criminal breach of trust or of criminal breach of contract is whether the person proceeded against had acted dishonestly. 8. A necessary elements of the offence of criminal breach of trust is that there should be entrustment of property to the accused. The expression "entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. The word "Entrusted" when used with respect to money means that the money has been transferred to the accused under circumstances which show that notwithstanding its delivery to the accused,the property in it continues to vest in the prosecutor and the money remains in the possession or control of the accused as a bailee and in trust for the prosecutor as bailor. The person who transfers possession of the property to the second party still remains the legal owner of the property and the person in whose favour possession is so transferred has only the custody of the property to be kept or disposed of by him for the benefit of the other party. Mere breach of contract is not made synonymous with criminal breach of trust. A "trust" is an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner. Hence where there is no original confidence, there is no trust, and a misappropriation, if punishable at all, will be under Section 409. 9. In the present case, it has been contended on behalf of the petitioner that entrustment, if at all, was made by the University and he is answerable to the University for the money given to him. The ownership have been vested in the University and not in the body of the teachers who have come forward to file the complaint petition. It has further been contended that since the University had made entrustment it is only the University which can come forward with the allegation of criminal breach of trust. The ownership have been vested in the University and not in the body of the teachers who have come forward to file the complaint petition. It has further been contended that since the University had made entrustment it is only the University which can come forward with the allegation of criminal breach of trust. It is only within the special knowledge of the University as to how the fund was handed over to the petitioner and as to how the same was to be applied. On this ground, it has been contended that opposite party No. 2 at this stage does not come into picture at all. If at all opposite party No. 2 being the President of Teachers Association has any grievances with respect to non-payment of the salary, etc. it was open to him to approach the University making out any allegation against the petitioner for the non-payment of the salary to the staff. The University authorities would be the best person to know as to how much amount was handed over to the petitioner for disbursement and any arrear in payment to the College also must be within the special knowledge of the University. Since, however, no body on behalf of the University is coming forward to make any complaint against the petitioner even when there is regular auditing of the accounts of the College it will become clear that the allegations against the petitioner have got no legs to stand up. Also it has been pointed out to me that in order to make the whole case mysterious not a single person of the University has been cited as a witness to speak about the disbursement of the fund of the College. Even the bursar or the accountant against whom there are allegations of their connivance with the Principal have not been made accused in this case. Whatever may be the merits of those allegations at this stage, it will not be proper for me to express any opinion in their regard. The fact, however, remains that these submissions made on behalf of the petitioner are not without any weight. 10. From time to time, the Hon ble Supreme Court had occasions to examine the true scope of Section 482 of the Code. The fact, however, remains that these submissions made on behalf of the petitioner are not without any weight. 10. From time to time, the Hon ble Supreme Court had occasions to examine the true scope of Section 482 of the Code. In this connection, my attention has been drawn to the case of Madhavrao Jiwaji Rao Scindia and another v. Sambhajirao Chandrojirao Angre and others, AIR 1988 SC 709 : 1988 East CrC 285 (SC). In this case, it has been observed that when theprosecution at initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncon troverted allegations, as made, prima facie establish the offence. However, in this very case, it was pointed out that it was 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 the prosecution to continue. It has been pointed out though a case of breach of trust may be both a civil wrong and a criminal offence but there would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. In the said case, it was found that it was one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting. It was, accordingly, held the criminal case should not be continued. 11. In this connection, my attention has also been drawn to the case of State of Bihar v. Murad Ali Khan and others, AIR 1989 SC 1 : 1989 East CrC 102 (SC). In this case also, the true scope of Section 482 of the Code has been laid down by the Hon ble Supreme Court., It has been observed that it is trite that jurisdiction under Section 482, Cr PC which saves the inherent power of the High Court to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon an inquiry whether the allegations in the complaint are likely to be established by evidence or not. In exercising that jurisdiction the High Court would not embark upon an inquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though, it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the Court or not. 12. These two cases and a host of others were taken into consideration in the leading case of the State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 601 . On careful examination of the law on the subject the Hon ble Supreme Court in paragraph 108 of this judgment have spelt out 7 categories of cases in which the FIR can be quashed. Learned counsel appearing on behalf of the petitioner has drawn my attention to category Nos. 5 and 7 as mentioned in this paragraph. They are as follows : "(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 13. On behalf of the petitioner, it has been submitted that the present case clearly falls under these two categories and, therefore, the complaint against the petitioner should be quashed. The submissions made on behalf of the petitioner on these points do not appear to be without any substance. 14. On behalf of the petitioner, it has been submitted that the present case clearly falls under these two categories and, therefore, the complaint against the petitioner should be quashed. The submissions made on behalf of the petitioner on these points do not appear to be without any substance. 14. However, my attention has been drawn to the growing tendency amongst some litigant in the country to resort to criminal prosecution of any person only to wreak vengeance on him. In such a situation what is the comment of law? Will the Court be only a mute spectator of the situation or will it act simply as an automation of a larger omission directed against the harassment of a person? No doubt scope of Section 482 of the Code is extremely limited. But as it be said that in a situation the Court is so helpless as not to secure justice for its citizen and not to ensure that a person is not unnecessarily harassed at the whim of prosecutor. In this connection, I would like to refer to the case of Punjab National Bank and others v. Surendra Prasad Sinha, AIR 1982 SC 1815, in which in paragraph 5 the Hon ble Supreme Court has observed as follows : "It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage, the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complainant as vendetta to harass the persons needlessly, vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance." It may be noticed in this connection that the Hon ble Supreme Court has sounded a word of caution against issuing process mechanically on the basis of the complaint filed to harass persons and had proceeded to quash the same. 15 From the detailed discussions made above it becomes perfectly clear to me that the present case is one of those rare cases in which the justice re- " quires that the petitioner should no longer be subject to any further harassment in the matter. 16. In the result, this application is allowed and the entire criminal prosecution of the petitioner as also the impugned order are hereby quashed.