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2010 DIGILAW 952 (GAU)

Ram Niwas Modi v. Nipon Kr. Nath

2010-12-23

A.C.UPADHYAY

body2010
JUDGMENT A.C. Upadhyay, J. 1. The Petitioners above named have challenged the order dated 31.3.2009 passed in C.R. Case No. 644/2008, by the Sub-Divisional Judicial Magistrate, Sankar Dev Nagar, whereby cognizance of offence under Sections 420/427/418/409 IPC was taken against them along with one Sri Kailash Poddar. 2. I have heard arguments advanced by Mr. G. N. Sahewala, Sr. Advocate, assisted by Mr. P. Bora, learned Counsel for the Petitioner and Mr. A. M. Bora, learned Counsel for the complainant/Respondent Facts leading to filing of this criminal petition, may be stated in brief, as follows- Sri Nipon Kr. Nath, complainant/Respondent lodged a complaint case before the Sub-Divisional Judicial Magistrate, Sankar Dev Nagar, Hojai, alleging inter-alia, that one Sri Kailash Poddar (i.e., accused No. 3 in the complaint case), acting as an agent of the accused No. 1 and 2 (Petitioners herein), assured admission of the complainant/Respondent above named and two other prospective students, namely, Dibya Jyoti Bora and Abhijit Goswami, for enrolment in Modi Institute of Technology, Kota, Rajasthan, and accordingly, they applied forgetting admission in the branch of Electronics & Communication in the aforesaid Institute. The complainant also had a telephonic talk with the accused/Petitioner No. 2 through accused No. 3. The complainant further stated that the accused Nos. 2 and 3 asked him to pay capitation fee of Rs. 6,00,000/-, for admission in the aforesaid subject of study proposed by him, and accordingly, the complainant's father also agreed to pay the capitation fee, for admission of the complainant under the management quota in the Institute managed by the accused-Petitioners. The complainant was given written assurance by accused/Petitioner No. 2, for complainant admission in the subject as aforesaid. The complainant accordingly, applied for admission in Modi Institute of Technology, Kota, Rajasthan in Electronic & Communication branch of study. The complainant also paid the required fee and the capitation fee as demanded by the accused/Petitioner No. 2 and accused No. 3. However, on 25.8.2008, the complainant, to his utter surprise found that his name did not appear in the final allocation of seat. Eventually the complainant had to return home empty handed and heart broken from the Institute. The capitation fee deposited by the complainant was also not refunded. 3. On the basis of the complaint filed by the complainant/opposite party, a case was registered as C.R. Case No. 644/08, under Section 420/427/418/409 IPC. Eventually the complainant had to return home empty handed and heart broken from the Institute. The capitation fee deposited by the complainant was also not refunded. 3. On the basis of the complaint filed by the complainant/opposite party, a case was registered as C.R. Case No. 644/08, under Section 420/427/418/409 IPC. The learned Court below after recording the depositions of a few witnesses, in due consideration of the materials on record, vide order dated 31.3.2009, took cognizance of offence under Section 420/427/418/409 of IPC and issued summons for appearance of the accused Petitioners in the Court. 4. The Petitioner Nos. 1 and 2, who are accused Nos. 1 and 2 in the complaint case, have filed this revision petition, for quashing of the impugned order dated 31.3.2009, passed by learned Sub-Divisional Judicial Magistrate, Sankardev Nagar, Hojai. It has been contended on behalf of the Petitioners that presently the Institute is running with five (5) Engineering Branches, namely, Electronics & Communication Engineering, Computer Engineering, Information Technology, Electrical Engineering & Applied Electronics & Instrumentation Engineering, with present intake of students in all branches numbering 390. The Petitioners further stated that Modi Institute of Technology is approved by the All India Council for Technical Education (AICTE), New Delhi (a Central Government Body), Government of Rajasthan and affiliated to Rajasthan Technical University, Kota and Rajasthan University, Jaipur. Accordingly, in terms of the rules of AICTE out of total intake of seats, in the University, 70% seats are to be filled up by the State Engineering Competitive Examination, i.e. Rajasthan Pre Engineering Test (RPET) and 15% seats are to be filled up by All India Engineering Entrance Examination (AIEEE) candidates and rest 15% are to be filled up by the Institution, as per the rules and regulations issued by the State Government. The Petitioners further stated that the Institution has to fill up the management quota seats every year, as per the direction received from the State Government. However, the directions of the State Government are normally received tardily; as such management quota seats are allotted in the Institute from the month of May and June, as per the State Government's direction. 5. During the process of allotment of the management quota seats in May and June, Mr. However, the directions of the State Government are normally received tardily; as such management quota seats are allotted in the Institute from the month of May and June, as per the State Government's direction. 5. During the process of allotment of the management quota seats in May and June, Mr. Kailash Poddar, i.e. accused No. 3 in the complaint case, met the Petitioners by representing himself as a career counselor of students in the State of Assam and the said Kailash Poddar showed interest in giving out of turn preference in admission to the students of Assam, without any profit or commission. 6. The complainant applied for admission in Modi Institute of Technology at Kota in the branch of Electronics & Communication, for the session 2008-2009. A written assurance was also given to that effect by the Petitioner No. 2 on behalf of the Institute. Accordingly, an amount of Rs. 10,000/- towards admission fee, was deposited, for which the Petitioners issued a money receipt dated 6.6.2008 to the complainant. However, the complainant failed to deposit the rest of amount within the prescribed time, in spite of two reminders issued on 12.6.2008 and 20.6.2008 and as such the complainant was not allowed admission by the Institute in the branch of Electronics & Communication and the Institute returned the amount of Rs. 10,000/- deposited by the complainant by draft No. 195382 dated 1.7.2008 together with letter dated 10.7.2008. However, the father of the complainant sent back the demand draft of Rs. 10,000/- and other testimonials along with letter dated 11.7.2008 in the name of President of the Institute and on 24.7.2008, the complainant together with his father visited Kota and requested to admit the complainant as per merit list prepared as per Rajasthan State Government direction for allotment of seats for Management quota candidates. Accordingly, the complainant got admission in the Applied Electronics and Instrumental Engineering Branch, in terms of his AIEEE (All India Engineering Entrance Examination) merit. The Petitioners further stated that the complainant submitted an application dated 11.9.2008, praying for cancellation of admission from Modi Institute of Technology. After receiving application for cancellation of admission, the Petitioner No. 2 forwarded the same to the concerned Branch by instructing them to return the original documents and the deposited amount to the complainant. The Petitioners further stated that the complainant submitted an application dated 11.9.2008, praying for cancellation of admission from Modi Institute of Technology. After receiving application for cancellation of admission, the Petitioner No. 2 forwarded the same to the concerned Branch by instructing them to return the original documents and the deposited amount to the complainant. Accordingly, the concerned branch of the Institute prepared the voucher of payment dated 12.9.2008 and 13.9.2008 and returned the deposited amount of Rs. 44,000/- vide Bank Draft No. 847332 dated 5.10.2008 and Rs. 32,000/- in Bank Draft No. 847331 dated 15.9.2008, in the name of the complainant. Both the aforesaid vouchers and drafts were duly received by the complainant by putting signatures. 7. The accused/Petitioners have further stated that they had no knowledge regarding any communication amongst the complainant and the accused No. 3 Moreover, there are no materials to show that the Petitioners engaged any agent for sponsoring by students in the name of the Modi Institute of Technology. The Petitioners further contended that the amount of Rs. 10,000/- and Rs. 66,000/- deposited by the complainant towards admission, hostel and bus fee was returned to the complainant upon cancellation of the complainant's admission in the Institute. The entire amount aforesaid was returned through bank drafts to the complainant, which was duly received by the complainant by putting his signature on the payment vouchers dated 12.9.2008 and 13.9.2008. The Petitioners have alleged that the complaint case has been filed by suppressing the materials facts. 8. Learned Counsel for the Petitioners further contended that the complainant never deposited a sum of Rs. 6.00 lakhs in the name of the Institute as capitation fee and as such there is no question of cheating on the part of the Petitioners. And added to it, there was no reference of payment of capitation fee in the communication in between the parties, nor was there any demand either verbally or in writing at any point of time. The accusation of payment of Rs. 6.00 lakhs is totally false and baseless and has been made to put pressure on the Petitioners for illegal gain. 9. The accusation of payment of Rs. 6.00 lakhs is totally false and baseless and has been made to put pressure on the Petitioners for illegal gain. 9. Learned Counsel for the Petitioners strenuously submitted that allegations made in the complaint are absurd and based on improbable facts, basing on which no prudent person would come to a conclusion that there is sufficient ground for proceeding against the Petitioners, for commission of the offence alleged, inasmuch as there is no question of paying a sum of Rs. 6.00 lakhs, and more so as the opposite party could not even pay admission amount, without obtaining bank loan. Learned Counsel for the Petitioners further contended that the criminal proceeding is manifestly attended with malafide and it has been instituted patently on personal grudge with an ulterior motive, as the complainant could not get admission in Electronics and Communication Branch in Modi Institute of Technology. 10. Learned Counsel for the Petitioners further contended that the allegations made in the complaint and the statement of the witnesses recorded, if taken at their face value, do not make out any case, so far against the Petitioners are concerned, in as much as the admission amount deposited with the Institute has been fully and finally returned to the Opposite Party, on cancellation of the admission at his own request. Learned Counsel for the Petitioners pointed out that the present Petitioners have nothing to do in respect of any other man, for which the complainant had to pay the amount to the accused No. 3. 11. Mr. Sahewala, learned Senior counsel for the Petitioners submitted that this is a typical case of mala fide criminal prosecution and the complaint case has been filed on distorted facts. According to the Petitioners the real state of affairs is as follows: Complainant applied for Electronics and Communication course of study in the Modi Institute of Technology pursuant to advertisement made in the leading newspapers including in its website. Modi Institute of Technology, on receipt of application, basing on the ranking of the Petitioner, approved admission in the Institute. No agent was engaged by the Institute for admission. Consequently, it is submitted that the complainant got the complaint petition lodged on distorted facts, which was never true since there was no occasion on the part of the officials of the Institute to approach the complainant through its agent. 12. No agent was engaged by the Institute for admission. Consequently, it is submitted that the complainant got the complaint petition lodged on distorted facts, which was never true since there was no occasion on the part of the officials of the Institute to approach the complainant through its agent. 12. Learned Counsel for the Petitioners further submits that it is manifestly clear that the complainant left the Institute on his own accord and wanted to have the money returned to him. Accordingly the Petitioners returned the money that was paid by the complainant at the time of admission. 13. As against this, learned Counsel appearing for the Respondent by explaining the facts leading filing of the criminal complaint petition submits that on simple perusal of the materials on record the ingredients of offences under Sections 420/427/418/409 IPC have been made out alleged against the Petitioners and therefore there is absolutely no illegality in taking cognizance of the offence by the learned Court below. Learned Counsel for the Respondent pointed out that the documents and the attending facts in defence, sought to be relied on by the Petitioners in this revision petition, are all based on fabricated documents and denied the correctness of the contents of the documents and the facts stated by the Petitioners. Learned Counsel for the complainant pointed out that there is no scope to rely on any of the documents and new facts introduced in this revision petition. 14. The question before us is whether the case of the Petitioners comes under any of the categories enumerated in State of Haryana v. Bhajan Lal 1992 Supp(1) SCC 335 : 1992 SCC 426 1 Is it a case where the allegations made in the complaint, even if they are taken at their face value and accepted in entirety, do not make out a case against the accused/Petitioners under Sections 420/427/418/409? Whether uncontroverted allegations made in the complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused? Whether the criminal proceeding is manifestly attended with mala-fide and the same has been instituted patently with an ulterior motive on personal grudge, as the complainant could not get admission in Electronics and Communication Branch in the Institute? 15. Whether the criminal proceeding is manifestly attended with mala-fide and the same has been instituted patently with an ulterior motive on personal grudge, as the complainant could not get admission in Electronics and Communication Branch in the Institute? 15. For determination of the above question it becomes relevant to note the nature of the offences alleged against the Petitioners, the ingredients thereof vis-a-vis the averment made in the complaint. 16. In the instant case, on the basis of the complaint case, the learned trial Court, after recording testimony of a few witnesses took cognizance of offence under Sections 420/427/418/409 IPC. 17. It has been well settled that for attracting prosecution under Section 418/420 of IPC, two essential ingredients are required to be fulfilled, which are as follows: (I) Deceit, i.e., dishonest or fraudulent misrepresentation; and (II) Inducement for delivering property. 18. It is the case of the complainant that he was attracted by the Modi Institute of Technology on reading the brochure of the advertisement issued by the Institution on website. Thereafter, the complainant met Sri Kailash Poddar accused No. 3, local agent of the institute at Guwahati. Complainant was assured admission in the subject of his choice i.e. Electronics & Communication by the accused No. 3 on payment of capitation fee of Rs. 6,00,000/- and regular fees of the Institute. Complainant contacted accused/Petitioner No. 2 on being referred by accused No. 3. Accused/Petitioner No. 2 also repeated similar assurance of admission in the Institute in the subject of his choice on payment of capitation fee as aforesaid. The complainant thereafter personally visited the Institute and he was also given letter of assurance by accused Petitioner No. 2 and was asked to pay the capitation fee of Rs. 6 lakhs. However the complainant was told that for making payment of capitation fee no receipt would be issued. Complainant paid usual fee of the Institute and also the capitation fee as demanded by the accused/Petitioner No. 2 and accused No. 3, but the complainant was not given admission in the assured subject. Consequently, the complainant was compelled to withdraw himself from the Institute, but the capitation fee was not returned to him. The above facts coupled with the above discussion explain in simple terms the element of offence under Section 418/420 IPC. 19. Consequently, the complainant was compelled to withdraw himself from the Institute, but the capitation fee was not returned to him. The above facts coupled with the above discussion explain in simple terms the element of offence under Section 418/420 IPC. 19. Counsel for the Respondent submitted that as the accused, being entrusted with the property or with dominion over property, dishonestly appropriated and converted it to their own use, and has dishonestly used or disposed off that property in violation of direction prescribing the mode in which such trust is to be discharged and thus they committed the offence of criminal breach of trust. 20. Section 409, IPC deals with criminal breach of trust by public servant, or by banker, merchant or agent. The essential ingredients of the offence under Section 409 are (i) entrustment of any person with property, or with any dominion over property in the capacity of public servant or as a banker, merchant, factor, broker, attorney or agent; (ii) the person so entrusted either dishonestly misappropriates or converts to his own use that property, or inter alia, dishonestly uses or disposes of the property in violation of any legal contract made touching the discharge of trust. 21. Thus, in order to bring in application of this provision, there has to be entrustment. The following two elements are required to be established. They are: (1) the accused, a public servant, or banker or agent was entrusted with property of which he is duty bound to account for; and (2) the accused has committed criminal breach of trust. 22. However, what amounts to criminal breach of trust is provided in Section 405, IPC. Section 409 I.P.C. is in essence criminal breach of trust by a certain category of persons. The ingredients of the offence of criminal breach of trust are: (1) Entrusting any person with property, or with any dominion over property, (2) The person entrusted (a) dishonestly misappropriating or converting to his own use that property, or (b) dishonestly, using or disposing of that property or willfully suffering any other person so as to do in violation- (i) of any direction of law prescribing the mode in which such trust is to be discharged; or (ii) of any legal contract made touching the discharge of trust. 23. 23. The basic requirements to attract the offence under Section 405 I.P.C. are (1) entrustment with the property or dominion over it and (2) whether the person entrusted was actuated by the dishonest intention or not, but misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. 24. Learned Counsel for the respective parties cited and relied on several decisions before this Court, in support of the respective stands. However, it is unnecessary to refer to all of them, except the following which are relevant for the purpose of deciding the issue in question. (1) 1992 Supp (1) SCC 335 : 1992 SCC 426 State of Haryana v. Bhajan Lal (2) AIR 1972 SC 1490 : (1972) 1 SCC 630 Somnath Puri v. State of Rajasthan, (3) (2005) 13 SCC 540 : State of Orissa &Anr. v. Saroj Sahoo, (4) (1998) 5 SCC 749 : Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. (5) (2009) 9 SCC 682 : M.N. Ojha and Ors. v. v. Alok Kumar Sribastav and Anr. (6) (2009) 10 SCC 182: Neelu Chopra &Anr. v. Bharti (7) (2007) 12 SCC 1 : Inder Mohan Goswami and Anr. v. State of Uttaranchal and Anr. (8) (1988) 1 SCC 692 : Madhab Rao Jiwaji Rao Scindhia and Ors. v. Sambhaharao Chandrahrao Angra & Ors. (9) (2009) 11 SCC 529 : Rabindra Kumar Madanlal Goenka and Anr. v. Rugmini Rabhab Spinnerts Pvt. Ltd., (10) (1992) 3 SCC 317 : 1992 Cr.L.J. 1956 Chand Dhawan v. Jahwarlal and Anr. 25. In the case of State of Haryana v. Bhajan Lal reported in 1992 Supp (1) SCC 335 : 1992 SCC 426 , the Hon'ble Supreme Court has laid the categories of cases by way of illustration wherein such power under Article 226 or the inherent powers under Section 482 of the Code could be exercised either to prevent abuse of process of any Court or otherwise to secure the ends of justice and to ascertain whether a complaint case is liable to be quashed or not. In State of Haryana v. Bhajan Lal (supra), it was, inter alia, observed as follows: (SCC pp. 378-79, para 102). 102. In State of Haryana v. Bhajan Lal (supra), it was, inter alia, observed as follows: (SCC pp. 378-79, para 102). 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (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. (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. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (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. 26. In Som Nath Puri v. State of Rajasthan (supra) the Apex Court held as under: Section 405 merely provides, whoever being in any manner entrusted with property or with any dominion over the property, as the first ingredient of the criminal breach of trust, the words "in any manner" in the context are significant. The section does not provide that the entrustment of property should be by someone or the amount received must be the property of the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The expression "entrusted" in Section 409 is used in a wide sense and includes all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. It may be that a person to whom the property is handed over may be an agent of the person to whom it is entrusted or to whom it may belong, in which case if the agent who comes into possession of it on behalf of his principal, fraudulently misappropriates the property, he is nonetheless guilty of criminal breach of trust because as an agent he is entrusted with it. A person authorised to collect money on behalf of another is entrusted with the money when the amounts are paid to him, and though the person paying may no longer have any proprietary interest nonetheless the person on whose behalf it was collected becomes the owner as soon as the amount is handed over to the person so authorised to collect on his behalf. This view of ours is well supported by decisions of different High Courts in this country for nearly a century, a few of which alone need be examined. 27. In State of Orissa v. Saroj Kumar Sahoo (supra), the Apex Court held that the powers possessed by the High Court under Section 482 Code of Criminal Procedure are very wide, but called attention to the very plenitude of the power which requires great caution in its exercise. The relevant extract, which is depicted herein below would make it more understandable and lucid: 11. As noted above, the powers possessed by the High Court under Section482 Code of Criminal Procedure are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhury (1992)4 SCC 305 and Raghubir Saran (Dr.) v. State of Bihar (1964) 2 SCR 336 ]. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar 1990 Supp SCC 686, State of Bihar v. P.P. Sharma 1992 Supp (1) SCC 222, Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) 6 SCC 194 , State of Kerala v. O.C. Kuttan (1999) 2 SCC 651 , State of U.P. v. O.P. Sharma (1996) 7 SCC 705 , Rashmi Kumar v. Mahesh Kumar Bhada (1997) 2 SCC 397 , Satvinder Kaur v. State (Govt. of NCT of Delhi) (1999) 8 SCC 728 and Rajesh Bajaj v. State NCT of Delhi (1999) 3 SCC 259 .] 14. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 Code of Criminal Procedure, it is not permissible for the Court to act as if it was a trial Court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about the existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan v. Jawahar Lal (1992) 3 SCC 317 , it was observed that when the materials relied upon by a party are required to be proved, no interference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 Code of Criminal Procedure, which cannot be termed as evidence without being tested and proved. 28. In Pepsi Foods Ltd. v. Special Judicial Magistrate, (supra) the Apex Court highlighted 7 golden guiding principle, laid in State of Haryana and Ors. v. Bhajanlal and Ors. (supra), for exercising inherent powers by the High Courts under Section 482 Code of Criminal Procedure, for quashing the FIR. The following paragraphs reveal the observation made by the Apex Court: It is settled that the High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code, which it said could be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. While laying down certain guidelines where the Court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. One of such guidelines is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to. 28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 29. In M.N. Ojha v. Alok Kumar Srivastav (supra) the Apex Court unambiguously reflected that normally, the High Court would not intervene in the criminal proceedings at the preliminary stage/when the investigation/enquiry is pending. 29. In M.N. Ojha v. Alok Kumar Srivastav (supra) the Apex Court unambiguously reflected that normally, the High Court would not intervene in the criminal proceedings at the preliminary stage/when the investigation/enquiry is pending. Interference by the High Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure can only be resorted to where a clear case for such interference is made out. The relevant extract of the decision in paragraph 30 to 32 elucidated it aptly. 30. Interference by the High Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure can only be where a clear case for such interference is made out. Frequent and uncalled for interference even at the preliminary stage by the High Court may result in causing obstruction in progress of the inquiry in a criminal case which may not be in the public interest. But at the same time the High Court cannot refuse to exercise its jurisdiction if the interest of justice so required where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no fair minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding. In such cases refusal to exercise the jurisdiction may equally result in injustice more particularly in cases where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint. 31. It is well settled and needs no restatement that the saving of inherent power of the High Court in criminal matters is intended to achieve a salutary public purpose. which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. [If such power is not conceded, it may even lead to injustice'. (See State of Karnataka v. L. Muniswamy (1977) 2 SCC 699 ). 32. We are conscious that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. (See Kurukshetra University v. State of Haryana (1977) 4 SCC 451 . SCC p. 451, para 2). 30. 32. We are conscious that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. (See Kurukshetra University v. State of Haryana (1977) 4 SCC 451 . SCC p. 451, para 2). 30. In Neelu Chopra v. Bharti (supra) the Apex Court held as under- In order to lodge a proper complaint, mere mention of the sections and the language of those sections is not the be all and end all of the matter. What is required to be brought to the notice of the Court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. 10. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these Appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of the process of law to allow the prosecution to continue against the aged parents of Rajesh, the present Appellants herein, on the basis of a vague and general complaint which is silent about the precise acts of the Appellants. 31. In Inder Mohan Goswami v. State of Uttaranchal (supra) the Apex Court by reiterating the observations made in Madavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao (1988) 1 SCC 692 , laid emphasis on the fact that a Court of law cannot be allowed to used by unscrupulous people for any oblique purpose. The relevant extract of the above decision appropriately clarifies it as follows: 7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, 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. 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 are 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. 32. Apparently, on the backdrop of the demand for payment of Rs. 6.00 lakhs in the name of the capitation fee, the Petitioner No. 2 issued a letter to the complainant informing him of his selection in the 1st year B.E. course in the Electronics & Communication Branch in the Modi Institute of Technology, which in fact induced the complainant to part with huge amount of money as capitation fee. Finally the accused/Petitioner refused to admit the complainant in the subject promised. Thus the Petitioner No. 2 intentionally deceived the complainant into a belief that he has performed his part by giving assurance of admission and made the complainant to pay the money, but in fact the accused/Petitioner No. 2 did not perform as promised. There is no scope to disbelieve the statement made by the complainant against accused/Petitioner No. 2 at this stage. All such documentary evidence furnished with this revision petition in support of defence stand of the Petitioners to interpret any other intention can not be considered by the High Court at this stage of the proceeding, without affording opportunity to the other side to question the veracity of such documents during trial. On reading the complaint petition as well as the statement of the witnesses recorded on solemn affirmation at the time of taking cognizance, I find that there are prima facie materials to show that the Petitioner No. 2 and the accused No. 3 induced the complainant with dishonest intention to part with his money in the name of making payment of capitation fee, by falsely promising his admission in the Institute. Accordingly, prima-facie offence under Sections 418/420 of the Indian Penal Code is made out against the accused Nos. 2 and 3. Accordingly, prima-facie offence under Sections 418/420 of the Indian Penal Code is made out against the accused Nos. 2 and 3. The allegation of the complainant is basically against Mr. Sushil Modi, the accused No. 2, and Sri Kailash Poddar, accused No. 3, who allegedly committed cheating and took away a sum of Rs. 6.00 lakhs dishonestly, as capitation fee from the complainant, promising to give him admission the institute. However, the element of cheating as discussed above is not available against Petitioner No. 1. Ex-facie, there are no materials on record indicating involvement of Petitioner No. 1. 33. In this case, the trial Court itself, on the face of the materials on record, felt existence of some material to take cognizance in respect of the offence under Section 409 I.P.C., i.e. criminal breach of trust. Therefore, prima facie, materials pointing to entrustment of property or dominion over property cannot be disbelieved at this stage. The complainant's case is that the accused dishonestly or willfully disposed off or the property, contrary to any legal contract as to discharge of the trust. The allegation that the accused/Petitioner No. 2 used the property, and appropriated the proceeds, without accounting for it, as per the contract, are sufficient to justify issuance of process, in respect of that offence. 34. In this case, the complaint itself discloses that the accused Petitioner No. 2 assured admission of the complainant in the selected subject in writing, which was later on denied after receiving the capitation fee. To deceive is to induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. It appears, there survived fraudulent and dishonest intention at the time of commission of the offence. Therefore, the element of fraudulent intention inducing the Petitioner to part with property, at the beginning of, or in proximate point of time, when the promise of admission was made by the Petitioner No. 2, cannot be said to be lacking. Anil Mahajan v. Bhor Industries Ltd. (2005) 10 SCC 228 . 35. Learned Counsel for the complainant Respondent contended that the Petitioner: have come up for quashing of the proceeding initiated against them, on the basis of certain new materials and documents, which do not form part of the criminal case pending in the trial Court. Anil Mahajan v. Bhor Industries Ltd. (2005) 10 SCC 228 . 35. Learned Counsel for the complainant Respondent contended that the Petitioner: have come up for quashing of the proceeding initiated against them, on the basis of certain new materials and documents, which do not form part of the criminal case pending in the trial Court. The complainant/Respondent has filed objection petition denying the veracity of the facts stated and correctness of the documents filed by the Petitioners in support of their case. It is further contended on behalf of the Respondent that the documents, relied on by the Petitioners to obtain a favourable order in this revision petition are not part of the original complaint petition initiated by the Respondent, before the trial Court and, as such, it would not be fair on the part of the Court to consider the case of the Petitioners by relying on such documents. In support of his contention, learned Counsel for the Respondent has relied on the decision of the Hon'ble Supreme Court reported in Ravindra Kumar Madhanlal Goenka and Anr. v. Rugmini Ram Raghav Spinners Private Limited (2009) 11 SCC 529 , wherein the Hon'ble Supreme Court has clearly laid down that while entertaining petition under Section 482 of Code of Criminal Procedure, materials furnished by defence cannot be looked into and can be entertained only at the time of trial. The relevant extracts of the decision of the Hon'ble Supreme Court read as follows: 18. While entertaining a petition under Section 482 Code of Criminal Procedure, the materials furnished by the defence cannot be looked into and the defence materials can be entertained only at the time of trial. It is a well-settled position of law that when there are prima facie materials available, a petition for quashing the criminal proceedings cannot be entertained. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases. 19. While considering the facts of the present case, we are of the considered opinion that the present case is not one of those extreme cases where criminal prosecution can be quashed by the Court at the very threshold. Pre-emption of such investigation would be justified only in very extreme cases. 19. While considering the facts of the present case, we are of the considered opinion that the present case is not one of those extreme cases where criminal prosecution can be quashed by the Court at the very threshold. A defence case is pleaded but such defence is required to be considered at a later stage and not at this stage. The Appellants would have ample opportunity to raise all the issues urged in this appeal at an appropriate later stage, where such pleas would be and could be properly analysed and scrutinized. 20. In view of the aforesaid position, we decline to interfere with the criminal proceeding at this stage. The appeal is consequently dismissed. 36. In view of what has been pointed out by the Apex Court in Ravindra Kumar Madhanlal Goenka (supra), the High Court, while exercising jurisdiction under Section 482 Code of Criminal Procedure cannot base its findings on the contents of the materials furnished by the Petitioners. Conversely, before taking note of such documents relied on by the Petitioners, an opportunity is required to be given to the other side, to examine the document and to challenge it, in accordance with law. 37. The complainant/Respondent by filing miscellaneous application specifically denied authenticity of the statements of facts and the additional materials relied on by the Petitioner in this revision petition. In a similar situation the Apex Court in 1992 Cri.L.J. 1956 (1): Smt. Chand Dhawan v. Jawahar Lal and Ors. (supra), held that 'the High Court was not justified in reaching the conclusion that the proceedings were liable to be quashed on the basis of additional materials produced by the accused, as those were required to be proved, when those materials were not accepted by the complainant.' 38. Learned Counsel for the Petitioner pointed out that the document and material facts are sufficient to justify that criminal proceeding is manifestly attended with mala fide and 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. As a matter of fact, it is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. As a matter of fact, it is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot be themselves be the basis for quashing the proceedings, State of Karnataka v. M. Devendrappa and Anr. (2002) 3 SCC 89 . In this context, from amongst the cases cited by the learned Counsel for the Petitioner and the learned Counsel for the Respondent as well, as mentioned above, I find the case of Ravindra Kumar Madhanlal Goenka and Anr. v. Rugmini Ram Raghav Spinners Private Limited (supra) & Ravindra Kumar Madhanlal Goenka (supra) as the most appropriate and applicable to the present case. 39. In the event of placing reliance on the documents in possession of the Petitioners, there may be very good defence case on behalf of the Petitioners. Nevertheless, neither such document in defence of the Petitioners can be allowed to be introduced at this stage nor it can be relied on by this Court, while considering a prayer for quashing the order of taking cognizance in exercise of powers under Section 482 Code of Criminal Procedure The Court is concerned only with the question whether the averments made in the complaint spell out the ingredients of criminal offence in the light of the guidelines reflected in State of Harayana v. Bhajan Lal (supra) or not. Once it is established that no ingredients of criminal offence are found in the complaint and the materials on record, the Court can quash the proceeding in exercising of its power under Section 482 Code of Criminal Procedure 40. In view of the above discussions and on the basis of the decision rendered by the Apex Court in State of Haryana v. Bhajan Lal (supra), and other decisions aforenoted, relied on by the respective parties, lead to a natural conclusion that the case of the Petitioner No. 2 at hand does not fall under any of the categories mentioned therein. The principle of law enunciated by the Apex Court in all other decision cited above do not justify quashing the impugned order against Petitioner No. 2. Because of this conclusion, the instant petitions on behalf of Petitioner No. 2 must fail and accordingly, the same is dismissed. The principle of law enunciated by the Apex Court in all other decision cited above do not justify quashing the impugned order against Petitioner No. 2. Because of this conclusion, the instant petitions on behalf of Petitioner No. 2 must fail and accordingly, the same is dismissed. However, if the allegations made in the complaint and the statement made by the witnesses at the time of taking cognizance are taken at their face value and accepted in their entirety, do not constitute any offence or make out any case against Petitioner No. 1 Dr. Ram Niwas Modi. 41. Apparently though the name of the Petitioner No 1 has been put in the complaint petition as accused No. 1, but there is no averment either in the complaint or in the statement of the witnesses indicting his involvement in the commission of the alleged crime. So far as accused/Petitioner No. 1 is concerned, it may be said that he had been unnecessarily and vexatiously roped in. The allegations in the complaint so far as the Petitioner No. 1 is concerned are vague. It cannot be assumed that Petitioner No. 1 had any role to play in the gamut of facts leading to the occurrence Consequently, complaint petition and the evidence collected in support of the same, do not disclose commission of any offence by the accused/Petitioner No. 1. 42. In view of the above discussion, I am of the considered view that a case could not be made out for quashing of the instant criminal proceedings, pending for trial before the learned Court below, against Petitioner No. 2. However, from the above discussions, it is evident that except naming Petitioner No. 1. Dr. Ram Niwas Modi, in the complaint petition, there is no direct and specific accusation of his involvement in the offence alleged. Accordingly, the proceeding initiated against Petitioner No. 1 Dr. Ram Niwas Modi, deserves to be quashed. 43. In the result, the impugned order of taking cognizance in the criminal proceeding pending against Dr. Ram Niwas Modi, accused Petitioner No. 1 in CR Case No. 644 of 2008 stands set aside and quashed. However, the prayer for quashing the impugned order in the criminal proceeding aforesaid on behalf of Petitioner No. 2 is hereby rejected. 43. In the result, the impugned order of taking cognizance in the criminal proceeding pending against Dr. Ram Niwas Modi, accused Petitioner No. 1 in CR Case No. 644 of 2008 stands set aside and quashed. However, the prayer for quashing the impugned order in the criminal proceeding aforesaid on behalf of Petitioner No. 2 is hereby rejected. Learned trial Court is directed to proceed with the trial of the complaint case afore noted against accused Petitioner No. 2, Sri Sushil Modi and accused No. 3, Sri Kailash Podder, in accordance with law. 44. Let a copy of this judgment and order be sent to the learned trial Court immediately. Learned Court is directed to proceed with the criminal trial expeditiously. I, however, make it clear that whatever has been stated above is only for the purpose of considering the petition under Section 482 of Code of Criminal Procedure and this should not be considered to be expression of the opinion of the Court on the merits of the case.