JUDGMENT : Indira Jain, J. 1. By this application under Section 482 of the Code of Criminal Procedure (hereinafter referred as Code for brevity) applicants-original accused challenge the order dated 03-12-2009 passed by the Judicial Magistrate First Class, Wani in Criminal Complaint Case No. 47 of 2007 thereby issuing process against the applicants under Section 409 read with Section 34 of the Indian Penal Code. 2. Heard at length Shri R.P. Joshi, learned Counsel for the applicants, Shri Amit Chutake, learned Additional Public Prosecutor for respondent no. 1, Shri Nihalsingh Rathod, learned Counsel holding for Shri S.P. Gadling, Advocate for respondent no. 2 and Shri S.M. Bhagde, learned Counsel for respondent no. 3-Municipal Council, Wani. 3. Facts giving rise to present application may be stated in brief as under:- Respondent no. 3-Municipal Council, Wani issued an advertisement on 08-03-2004 in weekly newspaper "Muktta Lalkar" calling tenders for various works to be performed. One of the works was construction of concrete canal from Shivneri Square to the house of Shri Amte at Wani. The work was allotted to one Deepak Agarwal on 30-06-2004, vide Municipal Council Standing Committee Resolution dated 26-05-2004. The said work was to be completed under the guidance of Dilip Raut, Junior Engineer attached to the Municipal Council, Wani. At the relevant time applicant no. 1 was the Chief Officer of respondent no. 3. 4. Respondent no. 2 was Municipal Councillor. He filed private complaint against the applicants alleging therein that applicants sanctioned the bills of Contractor Deepak Agarwal for the work of construction of concrete drain from Shivneri chowk to the house of Shri Amte without the work having been done by the Contractor. It was stated in the complaint that bills to the tune of Rs. 53,239/- were cleared by applicants and the actions on the part of applicants were liable for punishment under Section 409 read with Section 34 of the Indian Penal Code. 5. Initially learned Magistrate passed order under Section 156(3) of the Code and directed the Police to investigate into the matter. Police submitted the report. The same was registered as Regular Criminal Case No. 63 of 2009. On 07-05-2009 summons to the accused came to be issued. Both the orders dated 19-06-2007 and 07-05-2009 were challenged by the accused before this Court in Criminal Application No. 1726 of 2007. Police submitted the report. The same was registered as Regular Criminal Case No. 63 of 2009. On 07-05-2009 summons to the accused came to be issued. Both the orders dated 19-06-2007 and 07-05-2009 were challenged by the accused before this Court in Criminal Application No. 1726 of 2007. Application was partly allowed vide order dated 15-10-2009 and the order dated 07-05-2009 issuance of summons was quashed and set aside by this Court with direction to the Magistrate to consider afresh whether process should be issued or not in Criminal Complaint Case No. 47 of 2007. In this background order dated 03-12-2009 issuing process came to be passed which is the subject matter of this application. 6. In his extensive arguments learned Counsel for applicants vehemently contended that the Public Works Committee, Municipal Council passed a resolution and regularized and ratified the work done from Shivneri Square to Water Filter Plant. It is stated that the change of spot was approved and regularized and ex post facto sanction was granted by the Public Works Committee. Learned Counsel submits that in view of the provisions of Section 72 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, Municipal Council was authorised to ratify the work done and no irregularities as alleged in the complaint were ever committed. It is submitted that the said resolution was deliberately suppressed by the complainant though he was a Councillor and knew about the resolution. 7. Another contention raised on behalf of the applicants is that no ingredients of criminal breach of trust as defined in Section 405 of the Indian Penal Code are made out as there is no averment in the complaint that applicants "dishonestly" used or disposed of any property of the Municipal Council. The learned Counsel states that in the absence of element of dishonesty in the entire transaction provisions of Section 409 of the Indian Penal Code would not attract. It is submitted that order of issuance of process was passed without application of mind. It is reiterated that change of site was duly approved, ratified and regularized by the Public Works Committee which would indicate that the work was carried in accordance with the procedure and after due sanction by the Public Works Committee. It is submitted that the order of issuance of process is bad in law and deserves to be set aside. 8. It is submitted that the order of issuance of process is bad in law and deserves to be set aside. 8. The learned Additional Public Prosecutor supports the impugned order and submits that Police investigated in view of the direction under Section 156(3) of the Code and accordingly the report was submitted to the Court. 9. On behalf of respondent no. 2 who is a contesting party it is stated that applicants sanctioned the bills though work was not carried out from Shivneri Square to Amte's house. It is stated that the work was sanctioned from Shivneri Square to Shri Amte's house and it was expected from applicant no. 1 being Chief Officer and applicant no. 2 being Junior Engineer to verify whether work was factually done or not and ought not to have sanctioned the bills without actual verification. Learned Counsel submitted that action of regularization of the work was ex post facto. The resolution was passed to cover the illegal acts of the applicants and the same was after filing of complaint by respondent no. 2. Learned Counsel states that the order is just and proper and no interference is called for in the extraordinary jurisdiction under Section 482 of the Code. 10. On perusal of complaint filed by respondent no. 2 it can be seen that the said complaint was filed on 19-06-2007. He was Municipal Councillor at the relevant time. As stated in the complaint Municipal Council invited tenders on 11-02-2004. It is not in dispute that work order was issued on 30-06-2004 in view of the Standing Committee Resolution dated 26-05-2004. Completion report of the said work was submitted by the Junior Engineer on 23-01-2006. Junior Engineer submitted the bill to the Chief Officer on 03-02-2006 and accordingly payments were made by the Chief Officer to the Contractor Shri Deepak Agarwal. 11. It can be further seen from the Public Works Committee resolution dated 22-01-2007 that ex post facto sanction to the change of site from Shivneri Square to the house of Shri Amte to Shivneri Square to Water Filter Plant was ratified. It was within the domain of Municipal Council under Section 72 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act to take such decision and regularize the change of site. There is no whisper of the resolution dated 22-01-2007 passed by the Public Works Committee in the entire complaint. 12. It was within the domain of Municipal Council under Section 72 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act to take such decision and regularize the change of site. There is no whisper of the resolution dated 22-01-2007 passed by the Public Works Committee in the entire complaint. 12. The offence alleged is criminal breach of trust by public servant under Section 409 of the Indian Penal Code. Section 405 of the Indian Penal Code defines criminal breach of trust. Following are the ingredients of the Section:- (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 wilfully 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. (ii) of any legal contract made touching the discharge of trust. 13. In the case on hand as is evident from the resolutions passed by the Standing Committee and Public Works Committee that change of site was duly ratified by the Municipal Council being permissible in law. The contention raised on behalf of complainant that ex post facto sanction was accorded just to cover the illegal activities of the complainant does not find force as the entire action taken on behalf of the Municipal Council was before filing the complaint on 19-06-2007. Neither the Municipal Council nor the applicants were aware of the charge levelled in complaint when the Public Works Committee passed the resolution regularizing the change of site. Even complainant does not dispute that the work was carried from Shivneri Square to Water Filter Plant. It is not the case that work was not at all done, still bills were cleared and payment was made. 14. In this premise this Court finds that no case is made out to proceed against the accused and the order of issuance of process is unsustainable in law. Criminal Application therefore deserves to be allowed. Hence, the following order. (i) Criminal Application (APL) No. 66 of 2011 is allowed. (ii) Impugned order dated 03-12-2009 passed by the Judicial Magistrate First Class, Wani in Criminal Complaint Case No. 47 of 2007 is quashed and set aside. (iii) Criminal Complaint Case No. 47 of 2007 stands dismissed. Criminal Application therefore deserves to be allowed. Hence, the following order. (i) Criminal Application (APL) No. 66 of 2011 is allowed. (ii) Impugned order dated 03-12-2009 passed by the Judicial Magistrate First Class, Wani in Criminal Complaint Case No. 47 of 2007 is quashed and set aside. (iii) Criminal Complaint Case No. 47 of 2007 stands dismissed. (iv) In the circumstances of the case no order as to costs. (v) Rule is made absolute in the aforesaid terms. Application allowed.