JUDGMENT AND ORDER : Heard Mr. P. Mahanta, learned counsel for the petitioner and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam. 2. By this application under section 482 Cr.P.C. the petitioner has prayed for quashing the FIR giving rise to Manikpur Police Station Case No. 32/2015 under section 409 read with Section 34 of the Indian Penal Code. 3. The brief facts leading to the present petition are that one Sri G.S. Panesar, Project Director, DRDA, Bongaigaon, lodged an FIR alleging misappropriation of the money allotted for construction of road under the MGNREGAS scheme and in the said FIR the present petitioner and one Muhim Basumatary, Secretary of Manikpur Gaon Panchayat under Manikpur Development Block have been named as accused. 4. Learned counsel referring to the FIR and also to an order dated 13.01.2014 issued by the Block Development Officer, Manikpur Development Block, whereby the money in question was allotted, submits that there was no entrustment of the money in question with the petitioner and therefore, even if the FIR is taken in its face value and accepted in its entirety, it does not make out an offence as defined under section 405 of the IPC against the petitioner. It is submitted by the learned counsel, relying on the following decisions, that when the allegations made in the FIR is taken in its face value and accepted in its entirety does not constitute any offence, allowing the proceeding to continue, would result in abuse of the process of court and therefore, prayed for setting aside/quashing the FIR in the instant case. (1) Hridaya Ranjan Prasad Verma and Ors. Vs. State of Bihar & Anr., (2000) 4 SCC 168 . (2) Radhey Shyan Khemka & Anr. Vs. State of Bihar, (1993) 3 SCC 54 . (3) Padal Venkata Rama Reddy @ Ramu Vs. Kovvuri Satnarayana Reddy & ors., (2011) 12 SCC 437 . (4) V.R. Dalal & Ors. Vs. Yougendra Naranji Thakkar & Anr., (2008) 4 SCC 374 (5) Asoke Basak Vs. State of Maharashtra & Ors., (2010) 7 SCC 842 5. Learned Addl. Public Prosecutor, Ms. Jahan submits, that though the accused is not a functionary of the Panchayat in his official capacity, he might be involved in the implementation of the programme under the MGNREGA scheme to be executed by the Gaon Panchayat. 6. State of Maharashtra & Ors., (2010) 7 SCC 842 5. Learned Addl. Public Prosecutor, Ms. Jahan submits, that though the accused is not a functionary of the Panchayat in his official capacity, he might be involved in the implementation of the programme under the MGNREGA scheme to be executed by the Gaon Panchayat. 6. The scope and contour of the power of the High Court in quashing a criminal proceeding initiated on a complaint or an FIR is well settled by a catena of decisions of the Apex Court and also by this High Court. The Apex Court in its landmark judgment, in the case of State of Haryana & Ors. Vs. Bhajanlal & Ors, reported in 1992 Supp. (1) SCC 335, while laying down the principles, where the power under section 482 CrPC has to be exercised by the High Court, laid down the following principles : (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 entirely, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations made 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 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 allegation 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 concerned act (under which 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 concerned Act 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 of the accused and with a view to spite him due to private and personal private grudge”. 7. As there is no dispute at the bar with regard to the principles laid down by the Apex Court in the authority cited by the learned counsel for the petitioner regarding quashment of a criminal proceeding, I feel it unnecessary to burden this judgment by reproducing the aforementioned citation relied by the learned counsel. 8. Be that as it may, keeping in view the principles laid down by the Apex Court in the Bhajanlal’s case, let me now consider the present case in the context of the allegations made in the FIR and other materials available on record. It would be beneficial to reproduce the contents of the FIR for better appreciation of the case in hand and therefore, the FIR is quoted below : - “To The Officer-In-Charge, Manikpur Police Station, Manikpur. Sub: FIR Sir, With due respect, I like to state that the below named accused person has mis-utilised and mis-appropriated the Govt. fund under the scheme MGNREGAS. The enquiry report of the Executive Engineer, District Rural Development Agency, Bongaigaon is enclosed herewith. As per report the actual cost of the work should be about Rs. 73,463.00/- (Rupees two lakhs nineteen thousand nine hundred ninety nine) only. So, you are requested to set the process of law in motion and apprehend the culprits. Name of the accused persons. 1. Sri Gopal Das, the then Junior Engineer now posted at Pakabetbari Development Block under Barpeta district. 2. Sri Mohim Basumatary, Secretary, Manikpur Goan Panchayat under Manikpur Development Block. So, you are requested to set the process of law in motion and apprehend the culprits. Name of the accused persons. 1. Sri Gopal Das, the then Junior Engineer now posted at Pakabetbari Development Block under Barpeta district. 2. Sri Mohim Basumatary, Secretary, Manikpur Goan Panchayat under Manikpur Development Block. Enclosed : Enquiry report of Executive Engineer, DRDA, Bongaigaon Yours faithfully, (G.S. Panesar, ACS), Project Director, DRDA, Bongaigaon.” 9. On the basis of such FIR, police registered a case under section 409/34 IPC. 10. The substance of the allegations as would appear from the above FIR is that it has come to the notice of the informant through a report submitted by the Executive Engineer, that while executing a work under the MGNREGAS scheme, Rs. 2,19,999/- was shown to have been spent, against the work. Whereas work was done only for an amount of 73,463/- rupees and with the above allegations, the informant made a request to take action against the present petitioner and one Muhim Basumatary, Secretary of Gaon Panchayat, under Manikpur Development Block. 11. Section 409 IPC provides for punishment for offence of criminal breach of trust committed by the public servant/banker/merchants/agents etc. and section 405 IPC defines the offence of criminal breach of trust which reads as follows : “Sec. 405. whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or dishonestly converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits ‘criminal breach of trust.’ “Sec. 409. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 12. A plain reading of the definition of criminal breach of trust as defined under section 405 IPC and the provision of section 409 IPC would show, that three broad and basic components of the offence under section 409 IPC are (i) the entrustment of the property with the accused or dominion over the property, (ii) the person entrusted with the property is a public servant/banker/merchant/factor/broker/attorney/agent, (iii) dishonest misappropriation or conversion of that property to his own use by the accused or dishonest use or disposal of such property in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any legal contract, expressed or implied by which the mode of discharge of such trust is made. So in order to constitute an offence, all the above ingredients have to be present conjointly. Even in the absence of any of the ingredients, the offence will not be complete. 13. In the instant case, the FIR is silent as to whether the money in question was entrusted with the present petitioner or he had any dominion over the property. However, inviting attention of this Court to a document being the order issued by the Block Development Officer, Manikpur Development Block, under Memo No.MB/NRAGA/Fund/9/2011-12, dated 13.01.2014, which has been produced by the petitioner as annexure to the petition, learned counsel for the petitioner submits, that the property in question was never entrusted to the petitioner. The said order dated 13.01.2014 clearly demonstrates that the amount of Rs. 2.20 lakhs meant for the work to be carried out by the concerned Panchayat, being the implementing agency, was released in favour of the president and the secretary of the concerned Gaon Panchayat by issuance of a cheque. The petitioner herein is a Junior Engineer posted at Pakabetbari Development Block. The co-accused named in the FIR is one Mahim Basumatary, who is the Secretary of the concerned Gaon Panchayat under the Manikpur Development Block. The order dated 13.01.2014, which has not been denied by the respondent, makes it abundantly clear that the property in question in the instant case was entrusted with the President and Secretary of the Manikpur Gaon Panchayat by way of a cheque. 14. The order dated 13.01.2014, which has not been denied by the respondent, makes it abundantly clear that the property in question in the instant case was entrusted with the President and Secretary of the Manikpur Gaon Panchayat by way of a cheque. 14. Section 13 of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 shows that the implementing agency of the scheme under this Act is the Panchayat at the district, intermediate and village levels. 15. Rule 5 of the Gaon Panchayat (Financial) Rules, 2002 provides that the fund of the Gaon Panchayat shall be administered by the Secretary of the Gaon Panchayat as provided under section 24 of the Act and there shall be placed to the credit thereof at the nearest Branch of the State Bank of India or any other Nationalized Bank or Co-operative Apex Bank or Regional Rural Bank. The Secretary of the Gaon Panchayat shall be responsible for proper and just maintenance of accounts of the Gaon Panchayat. 16. Although the FIR is silent with regard to entrustment of the property with the present petitioner, the order dated 13.01.2014 speaks loud and clear that it was the President and Secretary of the Gaon Panchayat, who were entrusted with the property involved in the instant case by way of cheque. The statutory provision of the Gaon Panchayat Act provides that the Secretary is responsible for maintenance and handling of fund of the Gaon Panchayat. Thus if the FIR and the order dated 13.01.2014, by which the property was entrusted to the Secretary and President of the Gaon Panchayat being the implementing Agency of the MGNREGAS are taken in its face value, it would show that there was absolutely nothing to suggest even remotely that the petitioner had any dominion over the property in question or he was entrusted with the property, in as much as, evidently the money was entrusted with the secretary and president of the Gaon Panchayat. 17. A pertinent question may arise here, whether the order dated 13.11.2014 relied by the petitioner can be taken into consideration while considering a petition u/s 482 CrPC, inasmuch, as it is the general rule that the materials furnished by the defence cannot be looked into, inasmuch as, such materials supporting the defence can only be entertained at the time of trial. When there is prima facie material available in the complaint or the FIR the complaint or the FIR cannot be quashed. However, such proposition is not absolute. Though normally as a matter of routine, the defence plea or the material in support of the defence need not be looked into in a quashing proceeding u/s 482 CrpC and focus has to be on the allegation made in the complaint or FIR, in a particular case, if the defence material is of such sterling and impeccable quality, capable of completely negating the allegation of the complainant, court is not totally debarred from taking into account, such defence materials in the interest of securing the ends of justice. The Apex Court in Rajiv Thapar & Ors. Vs. Madan Lal Kapoor, reported in (2013) 3 SCC 330 observed that when the materials relied upon by the accused is of starling and impeachable quality, which persuades the judicial conscience to exercise the power u/s.482 CrPC to prevent the abuse of process of the court, there is no bar in taking into consideration of such materials relied by the defence. The Apex Court in Rajiv Thapar’s case (Supra) enunciated the detail guidelines as to when the materials relied by the accused should be considered in a petition u/s 482. The relevant paragraphs of the said judgment are as under :- 22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:- (i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused. 18. In the present case, the FIR does not specifically disclose the ingredients of the offence u/s 409 IPC. The contention of the learned counsel for the petitioner is that the order dated 13.01.2014, whereby, the property involved in the instant case was entrusted, clearly demonstrates that the property was not entrusted with the present petitioner, rather, it was entrusted with the Secretary and President of the Gaon Panchayat who are the implementing agency or MGNREGAS Scheme. The order dated 13-01-2014 being a public document and not disputed by the respondents certainly falls in the category of a material of sterling and impeccable quality, which, totally rules out the factum of petitioner being entrusted with the property in question. Once the entrustment of property with the petitioner is ruled out by the order dt. 13.01.2014, there would be no question of committing breach of trust by the petitioner. 19. Another point to be considered here is that the case was registered u/s 409 read with section 34 IPC. It needs no mention that the provision of Section 34 IPC itself is not an offence. Section 34 IPC embodies the principle of joint liability in doing a criminal act. Entrustment of the property with the petitioner having been totally ruled out and the ingredients to constitute the offence u/s 409 IPC against the petitioner having been found absent, question of joint liability or constructive liability becomes redundant. Section 34 IPC embodies the principle of joint liability in doing a criminal act. Entrustment of the property with the petitioner having been totally ruled out and the ingredients to constitute the offence u/s 409 IPC against the petitioner having been found absent, question of joint liability or constructive liability becomes redundant. For the above proposition reliance can be placed on the decision of the Apex Court in Ashoke Basak –VS- State of Maharashtra & Others, Criminal Appeal No. 1980/2010 (Arising out of S.L.P. (Crl.) No. 7338/2007) relied by learned counsel for petitioner, the Apex Court held thus :- “Be that as it may, having come to the conclusion that the ingredients of section 409 IPC are not satisfied against the appellant, the question of his acting in concert with others does not arise. We are, therefore, convinced that section 34 IPC is not attracted against the appellant.” 20. The basic ingredient for constituting an offence u/s 409 IPC being entrustment of the property with the petitioner or dominion over the property having been ruled out, allowing the present proceeding to continue against the present petitioner would amount to abuse of process of the court and would not serve the ends of justice. The Apex Court in CBI, ACB Mumbai –VS- Narendra Lal Jain and Others (2014) 5 SCC 364 observed that continuance of a criminal proceeding which is likely to become oppressive or may partake the character of lame prosecution would be a good ground to invoke the extra ordinary power u/s 482 CrPC. Since in view of the order dated 13.01.2014, the allegations in the FIR as mentioned hereinabove, is not capable of even making out a prima facie case under section 409 IPC against the present petitioner, the prosecution against the petitioner would be nothing but a lame prosecution. 21. Accordingly, the FIR and the proceeding as far as the present petitioner is concerned, are quashed and set aside. Since there is another person named in the FIR, this order will be a bar in proceeding with the matter as far as the other accused person is concerned. 22. The petition stands disposed of accordingly.