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2018 DIGILAW 263 (GAU)

INDER CHAND BAGRI v. JAGADISH PRASAD BAGRI

2018-02-13

MIR ALFAZ ALI

body2018
JUDGMENT/ORDER : 1. Both the petitions u/s 482 CrPC have been filed for setting aside the order dated 25/02/2011 in CR Case No. 3230C/2013, whereby learned trial court having taken cognizance, issued process against the petitioners and also for quashing of the proceeding in the above mentioned complaint case. 2. The complainant/respondent No.1 lodged the complaint against the petitioners alleging that the complainant along with petitioner Sri Inder Chand Bagri, Bhagwandas Bagri, Ramkishan Bagri, Shyamsundar Bagri and Jagadishprasad Bagri constituted a partnership firm under the name and style of "M/S Inderchand Bagri & Brothers" for setting up a warehouse/go-down to be given on rent. All the partners, except the petitioner Inder Chand Bagri, contributed their share of capital equally in terms of cash money. As the petitioner Inder Chand Bagri was in financial hardship, he contributed a plot of land as his share in the partnership business. The said plot of land, situated at Jaynagar Road near NH 37, which the petitioner Inder Chand Bagri contributed as his share of capital to the partnership business, became the property of the partnership firm "M/S Inderchand Bagri & Brothers" as per terms of partnership agreement. The complainant and other partners including the petitioner Inder Chand Bagri constructed a warehouse covering a floor area of 29,000/- sq. ft. approximately, which was rented out to different tenants. The petitioner Inder Chand Bagri was entrusted to look after the business including collection of rent from the tenants on behalf of the firm. It has been stated that till March, 1993, the petitioner Inder Chand Bagri was submitting the accounts of profit and loss to the other partners and thereafter, the petitioner Inder Chand Bagri neither submitted the account of profit & loss of the firm, nor paid the share of profits to the partners. In spite of repeated request to submit the accounts with regard to profit and loss of the firm and their due share, the petitioner Inder Chand Bagri was delaying the matter. When in the month of August 2011, the complainant visited the registered office of the firm, he could know that the petitioner Inder Chand Bagri sold the entire property of the firm including the warehouse/go-down to the petitioner No. 2, Shri Ajit Kumar Bagri by a registered sale deed No. 5359/2011. When in the month of August 2011, the complainant visited the registered office of the firm, he could know that the petitioner Inder Chand Bagri sold the entire property of the firm including the warehouse/go-down to the petitioner No. 2, Shri Ajit Kumar Bagri by a registered sale deed No. 5359/2011. It was alleged that Inder Chand Bagri was entrusted with the property of the firm and he had mis-appropriated the property of the firm by converting it to his own use and thereby caused wrongful loss to the complainant and other partners and wrongful gain to himself. Hence, the complainant lodged the complaint. Learned Magistrate took cognizance of offence u/s 406/420 read with section 34 of the IPC by the impugned order dated 25/02/2014 and issued process against Sri Inder Chand Bagri and Ajit Kr. Bagri, who are the petitioners in Crl. Pet. No. 190/15 and Crl. Pet. No. 620/2014, respectively. 3. Aggrieved by the impugned order of taking cognizance and issuing process, the petitioners have filed the above mentioned petitions for quashing the proceeding. 4. I have heard Mr. A.K. Bhattacharya, learned senior counsel appearing for the petitioner, Inder Chand Bagri, Mr. Pallab Kataki, learned counsel appearing for the petitioner Ajit Kr. Bagri and Mr. A.M. Bora, learned senior counsel appearing for the respondent No. 1. 5. Learned senior counsel, Mr. A.K. Bhattacharya, placing reliance on the decision of the Apex Court in the case of R.P. Kapoor Vs State of Punjab ( AIR 1960 SC 866 ) and Bajanlal Vs State of Haryana (1992 Suppl. 1 SCC 335) contended, that the partnership firm was dissolved as back as on 03/04/2017 and in terms of the agreement, the land in question reverted back to the petitioner Inder Chand Bagri, being original owner and therefore, at the time of the execution of the sale deed in the year 2011, the land in question did not belong to the partnership firm and the complainant had lodged the complaint suppressing all these material facts with mala fide intention to harass the petitioners. Further contention of the learned senior counsel was that the respondent Jagadish Prasad Bagri himself filed a suit for dissolution of the partnership firm and for rendition of accounts, which was decreed ex-parte and also produced a certified copy of the said judgment in T.S. 144/98 for perusal of this Court. 6. Mr. Further contention of the learned senior counsel was that the respondent Jagadish Prasad Bagri himself filed a suit for dissolution of the partnership firm and for rendition of accounts, which was decreed ex-parte and also produced a certified copy of the said judgment in T.S. 144/98 for perusal of this Court. 6. Mr. Pallab Kataki representing the petitioner Ajit Kr. Bagri submitted, that the complaint failed to disclose any offence against the petitioner Ajit Kr. Bagri and the learned trial court mechanically issued process against the petitioner Ajit Kr. Bagri without applying judicial mind. 7. Refuting the submission of the learned counsel for the petitioners, Mr. A.M. Bora, learned Sr. Counsel for respondent No. 1 submitted, that the complaint lodged by the respondent No. 1 having clearly made out criminal offence attracting the penal provision u/s 420 and 406 read with section 120 (B) of the IPC against the petitioners, this Court exercising inherent power u/s 482 CrPC cannot quash the proceeding on the basis of the materials produced by the petitioners, as those materials are not undisputed. This Court cannot scrutinize the facts and evidence to ascertain the veracity of the allegations in a quashing proceeding, submits Mr. Bora. Although the documents relied by the learned counsel for the petitioners may be produced before the trial court as defence materials, this court cannot take cognizance of those documents, which are not undisputed, inasmuch as, various civil proceedings are pending between the parties with regard to the contention raised by the learned counsel for the petitioner. Referring to a written statement filed by the petitioner Inder Chand Bagri in the civil suit (T.S. 160/12), which has been annexed with the additional affidavit, Mr. Bora submits, that in his written statement, the petitioner Inder Chand Bagri admitted, that the land belonged to the partnership firm and he executed the sale deed, being oblivious of the said fact. 8. What therefore, follows from the rival contentions raised by the learned counsels for both the parties, is that the grounds, on which the criminal proceeding is sought to be quashed by the two petitioners, are not same. The petitioner Inder Chand Bagri has sought for quashing the proceeding relying on certain documents and conduct of the parties, which according to the petitioner, would belie and negate the entire allegations brought by the complainant against the petitioners. The petitioner Inder Chand Bagri has sought for quashing the proceeding relying on certain documents and conduct of the parties, which according to the petitioner, would belie and negate the entire allegations brought by the complainant against the petitioners. On the other hand, the contention of the petitioner Ajit Kr. Bagri, is that the allegation made in the complaint, did not make out even prima facie, any offence u/s 420 or 406 or 120-B IPC against him. 9. The scope of interference by the High Court in matters of quashing a complaint or FIR in the exercise of power u/s 482 is no longer res integra. The Apex Court in a catena of decisions, laid down the principles and guidelines for quashing a complaint or FIR in exercise of inherent power. In R.P. Kapoor Vs. State of Punjab (supra) relied by the learned counsel for the petitioner, the Apex Court summarized three categories of cases, where inherent power u/s 482 CrPC can and should be exercised to quash the proceedings. (i) When it manifestly appears that there is legal or statutory bar against the institution and continuance of the proceeding. (ii) When the allegation made in the first information report or the complaint taken at their face value and accepted in their entirety do not constitute the offence alleged. (iii) When the allegations constituted an offence, but there is no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge. 10. In the landmark judgment, in State of Haryana Vs. Bajanlal (supra), the Apex Court, while making it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelized inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases, summarized the following categories of cases, where the inherent power can and should be exercised by the High Court either to prevent the abuse of the process of the court or to secure the ends of justice. "(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. "(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. (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". 11. The Apex Court in Bhajanlal also sounded a note of caution that the inherent power should be exercised very sparingly in quashing a criminal proceeding. The Apex Court observed thus :- 103. 11. The Apex Court in Bhajanlal also sounded a note of caution that the inherent power should be exercised very sparingly in quashing a criminal proceeding. The Apex Court observed thus :- 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice." 12. What therefore follows from the above authorities is that the exercise of inherent power for quashing a complaint at the threshold is permissible under the following circumstances :- (i) when the allegations made in 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, (ii) when there is any express legal bar against filing the complaint or continuing with the proceeding. (iii) en the allegations made in the complaint are so absurd and inherently improbable that no prudent person can ever reach a just conclusion, to proceed against a person on the basis of such allegation. (iv) when a criminal proceeding is manifestly attended with mala fide and/or when 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". 13. It is also the settled principle, that while entertaining the petition u/s 482 CrPC, the High Court should not endeavor to scrutinize the evidence and materials to ascertain the veracity of the allegations made in the complaint or the FIR. Once the allegations made in the first information report or the complaint prima facie makes out criminal offence, the High Court should not hasten to quash the criminal proceeding. The Apex court in Radhey Shyam Khemka And Anr. Vs. State Of Bihar, (1993) 3 SCC 54 , observed that that the High court should not, while exercising the power u/s 482 CrPC of the Code, usurp the jurisdiction of the trial court. The Apex court in Radhey Shyam Khemka And Anr. Vs. State Of Bihar, (1993) 3 SCC 54 , observed that that the High court should not, while exercising the power u/s 482 CrPC of the Code, usurp the jurisdiction of the trial court. The power u/s 482 of the Code has been vested in the High Court to quash the proceeding which amounts to abuse of the process of the court, but that power cannot be exercised by the High Court to hold a parallel trial. 14. Keeping in view the above principles laid down by the Apex Court, let me see whether the allegations made in the complaint in the instant case, even if taken at their face value and accepted in their entirety, do not prima facie constitute an offence or make out a case against the petitioners. The allegations made in the complaint was that the respondent No. 1 along with others, including the petitioner Inder Chand Bagri constituted a registered firm to carry on business of godown and the accused/petitioner Inder Chand Bagri was entrusted to look after the business of the firm at Guwahati and submit accounts of loss and profit. The further allegations were that the accused/petitioner Inder Chand Bagri was submitting the accounts of profit and loss to the other partners till 1993 and thereafter, he failed, either to submit the accounts of loss and profit or to give the share of profit to the other partners and ultimately he disposed of the property of the firm by way of sale and thereby caused wrongful loss to other partners and wrongful gain to himself. If the above allegations are taken at their face value and accepted in their entirety to be true, it is difficult to hold that no offence was made out in the complaint against the petitioner Inder Chand Bagri. 15. Learned senior counsel, Mr. A.K. Bhattacharya submits, that the partnership firm was dissolved on 3/4/97 and as per the agreement, after dissolution of the partnership firm, the land reverted back to the owner, the petitioner Inder Chand Bagri. Learned counsel also produced a certified copy of an ex-parte decree dated 8/9/2000, passed in a suit (TS 144/98) instituted by the respondent No. 1 in 1998, whereby the partnership firm was dissolved. Banking on the above facts, learned Sr. Learned counsel also produced a certified copy of an ex-parte decree dated 8/9/2000, passed in a suit (TS 144/98) instituted by the respondent No. 1 in 1998, whereby the partnership firm was dissolved. Banking on the above facts, learned Sr. Counsel contended that the partnership firm having been dissolved long before the execution of the sale deed by the petitioner, the accusation made in the complaint could not stand and therefore, the proceeding deserves to be quashed for being mala fide and having been instituted with the ulterior motive to harass the petitioner for personal grudge. 16. Refuting the above submission, Mr. A.M. Bora, learned senior counsel for the respondent No. 2 contended that the plea raised by the petitioner Inder Chand Bagri and the materials relied upon, namely, deed of dissolution of partnership firm and the ex-parte decree cannot be looked into by the High Court in this quashing proceeding, though such materials can be considered by the trial Court, inasmuch as, such materials are not undisputed. In support of the above submission, Mr. Bora placed reliance on the decision of the Apex Court in Harshendra Kumar D. Vs. Rebatilata Koley and Ors., (2011) 3 SCC 35, wherein the Apex Court held as follows :- "It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage." 17. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage." 17. It is no doubt true, that as a general rule, while exercising the inherent power for quashing a criminal proceeding, the High Court cannot look into the defence materials or embark upon an enquiry in respect of the merit of the accusation, inasmuch as, the defence materials can be entertained only at the time of trial. However, such rule is not absolute and in exceptional cases, where the defence materials are undisputed and of such starling and impeccable quality having the potential to completely negate the accusation made in the complaint or the FIR, there is no bar in looking into such materials for quashing a proceeding to secure ends of justice or to prevent the abuse of process of court. In Rabindra Kumar MadanLal Goenka & Anr. Vs. Rugmini Ram Raghav Spinners Private Limited, (2009) 11 SCC 529 dealing with the scope of looking into the defence material, the Apex Court held as under :- "While entertaining a petition u/s 482 CrPC, 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." 18. In Radhey Shyan Khemka (supra) a the Apex Court laid down the general rule, that while exercising inherent power u/s 482 CrPC, High Court should not embark upon an enquiry in respect of merit of the accusation. The Apex Court in Harshendra Kumar D. vs. Rebatilata Koley, (supra) and Rabindra Kr. In Radhey Shyan Khemka (supra) a the Apex Court laid down the general rule, that while exercising inherent power u/s 482 CrPC, High Court should not embark upon an enquiry in respect of merit of the accusation. The Apex Court in Harshendra Kumar D. vs. Rebatilata Koley, (supra) and Rabindra Kr. Madanlal Goenka (supra) held that such rule is not absolute and in exceptional cases, when the materials or documents sought to be relied by defence are beyond suspicion or doubt and of such starling and impeccable quality, in the face of which, accusation against accused cannot stand, High Court should take into account such defence materials to quash the proceeding in order to prevent the abuse of the process of court. 19. The Apex Court in Rajiv Thapar & Ors. Vs. Madan Lal Kapoor, reported in (2013) 3 SCC 330 , while confronting with the same question as to the permissibility of looking into the defence materials by the High Court, in exercising inherent power for quashing a criminal proceeding, enunciated the detailed 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 follows :- 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 prosecutions/complainants 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 prosecutions/complainants 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. 20. Let me now examine the materials relied by the learned Sr. Counsel Mr. Bhattacharyya by applying test enunciated by the Apex Court in Rajib Thapars case (supra) to ascertain whether in the facts and circumstance of the present case the materials are undisputed and totally beyond suspicion or doubt and of such starling and impeccable quality, in the face of which, accusation against the petitioners could not stand. As already indicated, defence materials relied by the petitioners are - deed of dissolution of partnership firm and a certified copy of ex-parte decree dated 8/9/2000 passed in T.S. No. 144/98 instituted by the respondent/complainant. The deed of dissolution of the partnership firm is apparently not undisputed. The respondent by filing additional affidavit brought on record, that a civil suit is pending between the parties, wherein the petitioner Inder Chand Bagri by filing written statement admitted that the property sold to Ajit Kr. Bagri was the property of the partnership firm. As per the allegations made in the complaint, upto 1993, the petitioner Inder Chand Bagri was submitting accounts of loss and profit and thereafter, he did not submit accounts of loss and profit and also did not give the share of profits to the other partners and ultimately sold out the entire property in the year 2011. As per the allegations made in the complaint, upto 1993, the petitioner Inder Chand Bagri was submitting accounts of loss and profit and thereafter, he did not submit accounts of loss and profit and also did not give the share of profits to the other partners and ultimately sold out the entire property in the year 2011. Thus, as per allegations made in the complaint, the offence of misappropriation or breach of trust took place even before 1997 or 1998, i.e., before the alleged deed of dissolution of partnership or filing of the suit for rendition of account. When offence was alleged to have taken prior to 1997, it is difficult to say for certain, at this stage, that the ex-parte decree in T.S. No. 144/98 or the deed of alleged dissolution of the partnership firm in 1997, which is not undisputed, are sufficient to overrule the factual assertions contained in the complaint or that those materials cannot be justifiably refuted by the complainant at the trial. This being the position, the materials relied by the accused petitioners, which are either refuted and/or refutable, cannot be considered to be of such starling and impeccable quality, in the face of which, accusation cannot stand under any circumstances. What therefore, follows from the above is that the materials relied by the accused petitioners do not satisfy the test as enunciated by the Apex Court in Rajib Tappars case. The points raised by the accused/petitioner and the materials relied certainly deserves scrutiny to ascertain the veracity of the allegations made in the complaint, which can only be done by the trial court in course of trial and not by this Court while exercising power u/s 482 CrPC. 21. Learned Sr. Counsel, Mr. Bhattacharya further contended that decision of the criminal court shall be superseded by the decision of the civil court and in that view of the matter, the court should quash the criminal proceedings in view of the judgment passed in T.S. No.144/98. There is no quarrel about the legal proposition that the decision of the civil court on the same issue shall prevail upon the criminal court. There is no quarrel about the legal proposition that the decision of the civil court on the same issue shall prevail upon the criminal court. What is important to note in the instant case is that the question is not of the decision of the civil court prevailing over the criminal court on the same issue, question is whether the decision in T.S.144/98 could overrule the allegations made in the complaint as to commission of offence, which needs to be examined by the trial court in course of trial and this Court cannot usurp the function of the trial court, while exercising inherent power for quashing the proceeding at the threshold. 22. Since the allegations made in the complaint are found to have prima facie made out offence against the accused/petitioner Inder Chand Bagri at least u/s 406 IPC and the materials relied by the petitioners are not found to be totally undisputed and of starling and impeccable quality, I am unable to persuade myself to concur with the submission of the learned Senior Counsel, Mr. Bhatacharya to quash the proceeding against Inder Chand Bagri at the threshold. 23. Though the allegations made in the complaint, prima facie made out offence against the petitioner Inder Chand Bagri, the petitioner Ajit Kr. Bagri does not stand on the same footing with Inder Chand Bagri. Therefore, the allegations made in the complaint qua the petitioner No. 2 needs to be examined in order to ascertain, whether the same set of allegations made in the complaint taken at their face value and accepted in their entirety makes out any offence against the petitioner Ajit Kr. Bagri. The respondent No. 1 lodged the complaint against both the petitioners under Section 406/420/120-B IPC. However, learned trial Court took cognizance for offence under Section 406/420 read with Section 34 IPC. Let me now turn to the complaint once again, to see whether the allegations made therein, do prima facie make out any offence u/s 406/420/34 IPC against Ajit Kr. Bagri. 24. In order to constitute an offence u/s 406 IPC, the basic ingredients are entrustment or dominion over the property and misappropriation or conversion to his own use or disposing the property in violation of any law or mode of discharging the trust by the person entrusted with the property or dominion over the property. Bagri. 24. In order to constitute an offence u/s 406 IPC, the basic ingredients are entrustment or dominion over the property and misappropriation or conversion to his own use or disposing the property in violation of any law or mode of discharging the trust by the person entrusted with the property or dominion over the property. So in order to attract section 406 IPC, firstly there must be entrustment or dominion over the property with the person against whom the allegation of offence u/s 406 IPC is made and being so entrusted or having dominion over the property, he must have misappropriated such property or dishonestly disposed of such property in violation of the terms of discharging the trust or in violation of any law. 25. Even if the entire allegations made in the complaint as indicated above, are taken at their face value and accepted in their entirety, in my considered view, the allegations do not attract any offence under section 406 IPC against the petitioner Ajit Kr. Bagri, inasmuch as, there was no allegation in the complaint that Ajit Kr. Bagri was ever entrusted with any property, nor there was any allegation of misappropriation of the property against him. Admittedly the partnership firm was constituted in 1977 and the petitioner Inder Chand Bagri alone was allegedly entrusted with the property of the firm and till 1993 said petitioner Inder Chand Bagri was submitting accounts and giving the share of profit to the other share holder. Misappropriation or breach of trust was alleged to have taken place after 1993. Neither the petitioner Ajit Kr. Bagri, was the partner of the firm, nor he was in any way connected with the business of the partnership firm "M/s Inder Chand Bagri & Brothers" as per allegations made in the complaint. It was alleged in the complaint, that the petitioner No. 1 induced the complainant to enter into an agreement for partnership in order to build a warehouse/godown and the partnership business continued smoothly till 1993. What is abundantly clear from the unambiguous averments made in the complaint is that the allegation of deception and inducement were also brought only against the petitioner Inder Chand Bagri. 26. What is abundantly clear from the unambiguous averments made in the complaint is that the allegation of deception and inducement were also brought only against the petitioner Inder Chand Bagri. 26. In order to constitute an offence of cheating as defined u/s 415, punishable u/s 420 IPC, the basic ingredients are deception and the person deceiving, fraudulently and dishonestly inducing the person, so deceived, to deliver any property or to consent that the person shall retain any property. In the instant case, as indicated above, there was no allegation against the petitioner Ajit Kr. Bagri that he ever deceived the respondent no. 2 or dishonestly and fraudulently induced the respondent no. 2 to deliver any property. The specific allegation made in the complaint was that the petitioner, Inder Chand Bagri induced the complainant to enter into a partnership firm for building a warehouse. Even if the allegation against the petitioner Ajit Kr. Bagri, that he purchased the property from the petitioner Inder Chand Bagri in spite of knowledge that the property did not belong to petitioner Inder Chand Bagri is accepted, that will not attract any penal provision against the petitioner Ajit Kr. Bagri. 27. In order to constitute an offence punishable u/s 120-B IPC there must be an agreement between two or more persons to do or cause to be done -- (i) an illegal act or an act which is not illegal, by illegal means,. As per allegation in the complaint, partnership firm was constituted as back as in the year 1977 by petitioner Inder Chand Bagri and other partner and Inder Chand Bagri was entrusted to look after the business of the firm including collection of rent from the tenants and the business continued smoothly till 1993 and he was giving the due share of other partners till 1993. As alleged in the complaint, Inder Chand Bagri sold the property of the firm to Ajit kr. Bagri in the year 2011. Therefore, admittedly alleged entrustment of the property with Inder Chand Bagri took place long back before 1993 and there was absolutely no averment in the complaint attributing any act to the petitioner Ajit Kr. Bagri during the period prior to sale of the godown. The allegations made in the complaint did not make out any ingredient of offence u/s 120/B against the petitioner Ajit Kr. Bagri. Bagri during the period prior to sale of the godown. The allegations made in the complaint did not make out any ingredient of offence u/s 120/B against the petitioner Ajit Kr. Bagri. That being so, in my considered view, even if, the entire allegations made in the complaint are taken at their face value and accepted in their entirety, it does not make out even prima facie any offence against the petitioner Ajit Kr. Bagri, not to speak of the offence u/s 420 or 406 or 120-B IPC. Ingredients of substantive offence having found to be totally absent, there is also no question of attracting section 34 of the IPC to rope the petitioner Ajit Kr. Bagri. For this proposition reliance can be placed on the observation made by the Apex Court in Ashok Basak Vs. State of Maharashtra & Ors., Criminal Appeal No. 1980/2010 (arising out of SLP (Crl.) 7338/07). Apex Court held --"...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 with others does not arise. We are, therefore, convinced that section 34 IPC is not attracted against the appellant." 28. The allegations made in the complaint having failed to make out any offence against the petitioner Ajit Kr. Bagri, taking cognizance and/or issuing process against the petitioner Ajit Kr. Bagri demonstrated complete non-application of mind on the part of the Magistrate and therefore, allowing the complaint and the proceeding qua petitioner Ajit Kr. Bagri to continue will amount to abuse of process of the court. 29. In view of the forgoing discussions, the criminal proceedings so far as the petitioner Ajit Kr. Bagri is concerned is quashed. However, the learned trial court shall proceed with the case so far the petitioner Inder Chand Bagri is concerned. 30. Accordingly the Criminal Petition/620/2014 is allowed and Criminal Petition/190/2015 stands dismissed.