JUDGMENT Saurabh Shyam Shamshery, J. Heard Sri. P.K. Singh and Sri. Arvind Srivastava, Advocate holding brief of Sri. Pratik Kumar, learned counsel for applicants and Sri. V.K.Upadhya, Advocate assisted by Sri. Ritvik Upadhya, learned counsel for O.P. No.2 and Mithilesh Kumar, learned A.G.A. for the State. 2. The applicants before this Court are aggrieved by impugned order dated 16.01.2024 passed by Metropolitan Magistrate, Kanpur Nagar under Section 204 Cr.P.C., whereby they have been summoned to face trial under Sections 406, 504 and 506 I.P.C. along with other co-accused. 3. Learned counsel for applicants vehemently submitted that they have no concerned with the firm M/s V & P Enterprises. It was earlier run by father of applicants and any outstanding out of any transaction with said firm, would not devolve upon the applicants. Learned counsels also submitted that contents of complaint, statements of complainant recorded under Section 200 and statement of witnesses recorded under Section 202 Cr.P.C. are even considered to be true, still ingredients of offences under Sections 406, 504 and 506 I.P.C. are not made out. 4. Learned counsels referred judgments passed by Supreme Court in Sarabjit Kaur v. The State of Punjab and Anr., (2023) 5 SCC 360 , Vinod Natesan v. State of Kerala and Ors., AIR 2019 SC 296 and Sudhapati Nageswara Rao v. State of Andhra Pradesh, (2012) 8 SCC 547 and relevant parts thereof are reproduced hereinafter :- "1. Sarabjit Kaur v. The State of Punjab and Anr. A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that the respondent No.2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent complaints that the name of the appellant was mentioned. On the first complaint, the only request was for return of the amount paid by the respondent No.2. When the offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not there in the earlier complaint. On the first complaint, the only request was for return of the amount paid by the respondent No.2. When the offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not there in the earlier complaint. The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal Courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which F.I.R. was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of cess of the Court. process 2. Vinod Natesan v. State of Kerala and Ors. 6. Having heard the appellant as party in person and the learned Advocates appearing on behalf of the original accused as well as the State of Kerala and considering the judgment and order passed by the High Court, we are of the opinion that the learned High Court has not committed any error in quashing the criminal proceedings initiated by the complainant. Even considering the allegations and averments made in the FIR and the case on behalf of the Appellant, it cannot be said that the ingredients of Sections 406 and 420 are at all satisfied. The dispute between the parties at the most can be said to be the civil dispute and it is tried to be converted into the criminal dispute. Therefore, we are also of the opinion that continuing the criminal proceedings against the Accused will be an abuse of process of law and, therefore, the High Court has rightly quashed the criminal proceedings. Merely because the original accused might not have paid the amount due and payable under the agreement or might not have paid the amount in lieu of one month Notice before terminating the agreement by itself cannot be said to be a cheating and/or having committed offence under Sections 406 and 420 of the IPC as alleged. We are in complete agreement with the view taken by the High Court. 3. We are in complete agreement with the view taken by the High Court. 3. Sudhapati Nageswara Rao v. State of Andhra Pradesh 7. In order to appreciate the above contentions, it is useful to refer the definition and punishment of criminal breach of trust and related provision provided under Sections 405, 406 and 409 Indian Penal Code which read as under- "405. Criminal breach of trust. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or 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 willfully suffers any other person so to do, commits "criminal breach of trust". 406. Punishment for criminal breach of trust. Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 409. Criminal breach of trust by public servant, or by banker, merchant or agent. - 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. In order to prove the offence of criminal breach of trust which attracts the provision of Section 409 Indian Penal Code, the prosecution must prove that one who is, in any manner, entrusted with the property, in this case as a dealer of fair price shop, dishonestly misappropriates the property, commits criminal breach of trust in respect of that property. In other words, in order to sustain conviction under Section 409 Indian Penal Code, two ingredients are to be proved: namely, i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty bound to account for, and ii) the accused has committed criminal breach of trust. In other words, in order to sustain conviction under Section 409 Indian Penal Code, two ingredients are to be proved: namely, i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty bound to account for, and ii) the accused has committed criminal breach of trust. What amounts to criminal breach of trust is provided under Section 405 Indian Penal Code. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly i) entrustment and ii) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his own use to the detriment of the persons who entrusted it." 5. The above submissions are opposed by Sri. V.K. Upadhya, learned Senior Advocate assisted by Sri. Ritvik Upadhya, learned counsel for opposite party No.2/complainant and he submitted that on a similar circumstances, challenge to other criminal proceedings at behest of applicants were rejected by a judgment dated 22.12.2022 passed in Nitin Agarwal and another v. State of U.P. and another, Application Under Section 482 No.21126 of 2021, wherein ingredients of Section 405 were found to be exist and he referred following paragraphs of Nitin Agarwal and Another (supra) :- "2. Learned counsel for applicants has referred to contents of F.I.R. as well as statement of complainant that there was a commercial transaction between applicants and complainant in regard to stainless steel materials in which complainant was vendor and applicants were vendee. Initially money was duly paid, however, later on it was not duly paid within time prescribed as well as interest of delayed payment was also not paid and finally outstanding amount was more than Rs. 1.83 crores. 3. Learned counsel also submitted that essential ingredients of Section 405 I.P.C. i.e. Criminal Breach of Trust are ; (1) The accused must be entrusted with the property or with dominion over it, (2) The person so entrusted must use that property, or; (3) The accused must dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation, (a) of any direction of law prescribing the mode in which such trust is to be discharged, or; (b) of any legal contract made touching the discharge of such trust. 4. However, in present case, there was no entrustment of any property. 4. However, in present case, there was no entrustment of any property. Dispute was in regard to payment of material supplied and in case there is violation of condition of mutual agreement, remedy would lie by filing a civil suit not in launching a criminal proceedings. 5. Above submissions have been opposed by Sri. Paritosh Kumar Malviya, learned A.G.A.-I for State and Sri. V.K. Upadhyay, Senior Advocate assisted by Sri. Ritvik Upadhyay for opposite party no.2/complainant and submitted that in similar circumstance, Division Bench of this Court in case of Premchandra Singhal and 3 others v. State of U.P. and 3 others, Criminal Misc. Writ Petition No. 7006 of 2017 decided on 09.03.2022 has rejected similar arguments that there were specific allegations that with a criminal intent, that accused has availed supply of goods or material on credit and have misappropriated it by utilising goods without paying amount and that there is no bar that criminal proceedings may go on simultaneously or if ingredients are present of alleged offence, criminal proceedings may not be quashed. 6. Learned Senior Advocate also placed reliance on Kamla Devi Agarwal v. State of West Bengal and others, (2002) 1 SCC 555 that High Court should be slow in interfering with proceedings at initial stage and that merely because the nature of dispute is primarily of civil nature, the criminal prosecution cannot be quashed because in cases of forgery or fraud, there is always some element of civil nature. Further reliance was placed on R. Kalyani v. Janak Mehta and others, (2009) 1 SCC 516 ; Kamlesh Kumari and others v. State of U.P. and another, (2015) 13 SCC 689 ; V. Ravikumar v. State, (2019) 14 SCC 568 ; Devendra Kumar Singla v. Baldev Krishan Singla, (2005) 9 SCC 15 ; Rama Shankar Mishra v. State of U.P. and 6 others, 2021 (8) ADJ 374 and Calicut Engineering Works (P) Ltd v. Batlibol Ltd., 2007 (1) ICC 573. 7. It is well settled that given set of facts may make out a civil wrong as well a criminal offence also and only because a civil remedy may be available to complainant that it cannot be a ground to quash criminal proceedings. The relevant test would show whether allegations in complaint as well as evidence recorded during investigation discloses alleged criminal offence or not. The relevant test would show whether allegations in complaint as well as evidence recorded during investigation discloses alleged criminal offence or not. (see Vesa Holdings Pvt. Ltd. and another v. State of Kerala and others, (2015) 8 SCC 293 as well as Vijay Kumar Ghai (supra)) 8. In above background on law and facts, I have carefully perused contents of F.I.R. as well as statement recorded during investigation. It was a consistent case of complainant that there were commercial transactions between complainant firm with prior condition that if payment is not made within 15 days of supply of goods by applicants' firm, the applicants' firm is to pay amount with 24% interest. Initially, transactions were smooth, however, it was alleged that with dishonest intention, material was procured by applicants' firm but neither amount was paid within 15 days nor 24% interest was paid after expiry of 15 days. During proceedings before this Court, a proposal was given to settle dispute by paying accepted amount by applicants, however, it was not materialized. 9. In order to consider whether basic ingredients of Section 406 I.P.C. as referred above are made out or not, the Court has to scrutinize whether any property was entrusted upon applicants by complainant. It is not seriously disputed that stainless steel material was supplied by complainant firm which was received by applicants firm. 10. During investigation, ledger has been brought on record in order to show outstanding amount to be paid by applicants firm to complainant firm. Word used in Section 405 I.P.C. includes that "in any manner entrustment with property" which may include a property given in commercial transaction especially when it was on basis of credit and ownership will be transferred only when amount of property is paid in accordance with terms of agreement, as in present case, with 24% interest in case amount is not paid within time prescribed. 11. Facts also disclose that material has not been returned to complainant and it has been used by applicants firm. Applicants have dishonestly used property in violation of legal contract between parties, therefore, essential ingredients of Section 405 I.P.C. i.e. "there is enstrustment of property, a person so entrusted has used property in violation of legal contract" and since essential ingredients are made out prima facie, therefore, present case would not fall under category of a case where it does not disclose any criminal offence. 12. 12. The inherent powers of this Court are very wide, however, it can be exercised in sparingly and it cannot be used to cause sudden death of a criminal proceedings, especially when ingredients of offence alleged are prima facie made out. Inherent powers cannot be used to throttle any legitimate prosecution. " 6. Heard counsel for parties and perused the record. 7. Inherent powers cannot be used to throttle any legitimate prosecution. " 6. Heard counsel for parties and perused the record. 7. Before adverting with rival submissions, the relevant part of complaint, statements recorded under Sections 200 and 202 Cr.P.C. as well as impugned order are reproduced hereinafter :- ^^c;ku varxZr /kkjk 200 Crpc uke& jkgqy lwn iq= Lo0 gjes'k pan lwn] mez&52 o"kZ fuoklh&7@115] Vsaiy Vkoj] WQ~ysV & 104] Lo:i uxj] is'kk & O;kikj] l'kiFk C;ku fd;k fd eSus MkWDV~sV rd i<+kbZ iw.kZ dj j[kh gSA eS fjef>e bLiky izkbZosV fyfeVsM esa MkbZjsDVj ds in ij dk;Zjr gwaA foi{khx.k fouksn 'kekZ] v:.k 'kekZ] eqUuh 'kekZ] fjrq 'kekZ] jkf'k 'kekZ esjs QkeZ ds xzkgd 2018&19 ds e/; cus FksA esjh QeZ LVhy jksM+l cukus dk dk;Z djrh gSA foi{khx.k }kjk tuojh 2019 dks eq>s 85 fefV~d Vu LVhy (SS) jksM lIykbZ Hkstus dk dke lkSik FkkA ftldh dqy dher eq- 1]32]18]000@& :i;s FkhA foi{khx.k }kjk mDr dher cSad V~kLQj }kjk pqdkbZ tkuh FkhA iwoZ esa [kjhnk x;s eky dk Hkqxrku foi{khx.k }kjk fd;k tk pqdk Fkk ftlesa ls dsoy eq0- 92]000@& :0 cdk;k FkkA fnukad 18-02-2019 dks Hksts x, eky dk vkf[kjh Hkqxrku foi{khx.k }kjk eq>s cSad V~kaLQj }kjk fd;k x;k FkkA mDr Hkqxrku dsoy eq0 2 yk[k :0 dk foi{khx.k }kjk fd;k x;k FkkA foi{khx.k }kjk iqu% eky Hksts tkus dk vkosnu fd;k x;k ijarq cdk;k iSlk pqdrk djus gsrq euk dj fn;k x;kA vxLr 2019 esa esjs }kjk foi{khx.kksa dks cdk;k /kujkf'k pqdk, tkus gsrq vf/koDrk }kjk uksfVl Hkstok;k x;k ftldk dsoy foi{kh la0 3 o 6 dk tokc vk;k ftlesa muds }kjk Hkqxrku djus ls badkj dj fn;k x;kA cdk;k /kujkf'k ekaxus ij foi{khx.k vHknz Hkk"kk dk iz;ksx fd;k vkSj ekjus&ihVus dh /kedh nhA tuojh 2020 esa esjh foi{khx.kksa ls vkf[kjh ckj ckr gqbZ Fkh tc muds }kjk iSls nsus ls ljklj badkj dj fn;k x;k FkkA eq>s vkSj dqN ugh dguk gS ;gh esjk c;ku gSA c;ku & 202 lh-vkj-ih-lh- uke & 'kjn feJk s/o Jh izdk'k feJk fuoklh vkbZ & 267 dY;kuiqj [kqnZ dkuiqj uxj l'kiFk c;ku djrk gwa fd eS 'kjn feJk fjef>e bLikr fy0 3 ,@275] vktkn uxj Fkkuk uokcxat esa ,dkmaVsaM ds in ij dk;Zjr gwa oh0,e0ih0 bUVjizkbtst ds drkZ/krkZ@izksijkbVj@izcU/k funs'kd x.k fouksn 'kekZ] v:.k 'kekZ] eqUuh 'kekZ] fjrq 'kekZ] jkf'k 'kekZ ds chp ,l0,l0 jkM yxHkx 85 fefV~d Vu eky ftldk buokbl ua0 10254 fnukad 22-01-19 otu 7-175 Vu dher 1100645 o buokbl ua0 10355 fnukad 24-01-19 out 7-604 Vu dher 1189877@& o buokbl ua0 10543 fnukad 27-01-19 out 9-900 Vu dher 1518660@& o buokbl ua0 10735 fnukad 30-01-19 otu 7-201 Vu dher 1104633@& o buokbl ua0 10810 fnukad 03-02-2019 otu 9-909 Vu dher 1520041@& o buokbl ua0 & 10941 fnukad 07-02-19 otu 11-770 Vu dher 1805518 o buokbl ua0 16 fnukad 14-20-19 out 20-554 Vu dher 3293869@& eky [kjhnk lEiw.kZ eky fjef>e fy0 ls oh-,e-ih- bUVjizkbtst dks izkIr gks x;k ftldh dher 1]32]18]802@& gSA rFkk iqjkuk cdk;k 94394@& :0 dqy 1]33]13]196 /kujkf'k cdk;k FkhA fjef>e bLikr }kjk dbZ ckj oh0,e0ih0 bUVjizkbtst ls :i;s dh ekax dh x;hA ftlesa foi{kh x.kksa }kjk fookn fd;k x;k rFkk eq0 213196@& :0 fnukad 18-02-2022 esa fn;k x;k] fjef>e bLikr fy0 }kjk fn;k x;kA eky dk iSlk oh0,e0ih0 b0 ds ekfyd x.k fouksn 'kekZ iq= ikyhjke 'kekZ] v:.k 'kekZ iq= ikyh jke 'kekZ] eqUuh 'kekZ iRuh ikyhjke 'kekZ] fjrq 'kekZ iRuh fouksn 'kekZ] jkf'k 'kekZ iRuh v:.k 'kekZ lHkh yksx IykV ua0 1501 HSIIDC bUMfLV~;y bLVsV oh0,0 jk; lksuhir gfj;k.kk gky irk e0u0 30 oS'kkyh U;w fnYyh lHkh foi{khx.k ,d jk; gksdj iSlk nsus ls badkj dj fn;kA :0 ,d djks.k bdRrhl yk[k foi{khx.kksa }kjk oknh fjef>e bLikr fy0 dks vkt rd vnk ugha fd;sA vkijkf/kd U;kl Hkax foi{khx.k }kjk fd;k x;k gSA ge deZpkfj;ksa }kjk v:.k 'kekZ o jkf'k 'kekZ ls VsyhQksu ij ckr djus ij foi{khx.kksa }kjk tku&eky dh /kedh ns jgs gSA vi'kCn xkyh&xykSp dj jgs gSA blds mijkUr gh oknh }kjk ;g ifjokn ekuuh; U;k;ky; esa nkf[ky fd;k gSA blds iwoZ fyf[kr dkuwuh uksfVl lHkh foi{khx.kksa dks Hksth x;h tks foi{khx.kksa dks izkIr gks x;hA ijUrq vkt rd cdk;k /kujkf'k ugha nh x;hA foi{khx.k ,d jk; gksdj tky lkth djrs gq, /kks[kk/kMh djrs o tku&eky dh /kedh nsrs gq, vijk/k dkfjr fd;k gSA foi{kh nks"kh O;fDr;ksa ds fo:) dk;Zokgh dh tk;sA ;gh esjk c;ku gSA U;k;ky; egkuxj eftLV~sV] d{k la0&02] dkuiqj uxj ifjokn la0 & 145592@2022 fjef>e bLikr fy0 cuke es0 oh0,e0ih0 b.Vjizkbtst vkfn fnukad & 16-01-2024 i=koyh vkt vkns'kkFkZ fu;r gSA ifjoknh ds fo}ku vf/koDrk dks rych ds fcUnq ij iwoZ esa lquk tk pqdk gSA la{ksi esa dFkkud bl izdkj gS fd ifjoknh fjef>e bLikr fy0] dkuiqj uxj esa izca/kd ds in ij dk;Z djrk gSA laLFkku }kjk LVsuysl LVhy ds fuekZ.k o fodz; dk dk;Z fd;k tkrk gSA ifjoknh ds laLFkku ls oh0,e0ih0 baVjizkbtst foi{khx.kksa }kjk 2019 ds iwoZ ls O;kikj py jgk gSA oh0,e0ih0 baVjizkbtst ds izca/k funs'kd ,oa drkZ/krkZ fouksn 'kekZ] v:.k 'kekZ] eqUuh 'kekZ] fjrq 'kekZ] jkf'k 'kekZ ds }kjk laLFkk dk izfrfuf/kRo djrs gq, fnukad 22-01-2019 ls fnukad 14-02-2019 rd yxHkx 85 ehfV~d Vu eky dz; fd;k FkkA ftlesa yxHkx iwoZ dz; fd;s x;s eky dk cdk;k o 85 ehfV~d Vu eky dh dqy /kujkf'k eq0 1]31]00]000@& dk Hkqxrku foi{khx.kksa ij 'ks"k FkkA ifjoknh@izkFkhZ }kjk Hkqxrku ds fy, dgus ij foi{khx.kksa }kjk izkFkhZ ds lkFk xkyh&xykSt djrs gq, tku&eky dh /kedh nh x;hA izkFkhZ }kjk mDr yksxksa dks fof/kd uksfVl Hkstk x;kA ijUrq mDr yksxksa }kjk dksbZ tokc ugha fn;k x;kA rc izkFkhZ }kjk ek0 U;k;ky; ds le{k ifjokn i= izLrqr fd;k x;kA ifjoknh }kjk vius dFku ds leFkZu esa Loa; dk c;ku varxZr /kkjk 200 na0 iz0 l0 rFkk /kkjk 202 na0iz0l0 ds varxZr lk{kh 'kjn feJk o lk{kh HkkLdj cktis;h dks ijhf{kr djk;k x;kA lquk rFkk i=koyh dk voyksdu fd;kA Qfj;knh }kjk vius c;ku varxZr /kkjk 200 na0iz0la0 esa foi{khx.kksa ij ifjoknh dh QeZ ls yxHkx eq0 1]31]00]000@& m/kkj eky dz; djus ds i'pkr Hkqxrku ls badkj djus o Hkqxrku dh /kujkf'k ekaxus ij vHknz Hkk"kk dk iz;ksx djus o ekjus&ihVus dh /kedh nsus dk vkjksi yxk;k gSA mDr vk{ksiksa dk iw.kZ leFkZu mlds }kjk ifjf{kr djk;s x;s lk{kh PW-1 lk{kh 'kjn feJk o PW-2 lk{kh HkkLdj cktis;h us vius c;ku varxZr /kkjk 202 na0iz0la0 esa fd;k gSA i=koyh esa ifjoknh o lkf{k;ksa ds c;ku ds vk/kkj ij izFke n`"V;k ifjyf{kr gks jgk gS fd mHk;i{kksa ds e/; O;kikj ds laca/k esa ysu&nsu o :i;ksa dk vknku&iznku gksrk vk jgk gSA mijksDr izdj.k esa U;k;ky; }kjk 202¼1½ na0iz0la0 ds rgr vuos"k.k vk[;k lacaf/kr Fkkus ls vkgwr dh x;h] tks dh layXu i=koyh gSA mDr vkns'k ds vuqdze esa lacaf/kr Fkkus ls vkgwr dh x;h] tks dh layXu i=koyh gSA mDr vkns'k ds vuqdze esa lacaf/kr Fkkus ds }kjk izkjafHkd tkap dj vUos"k.k vk[;k fnukad 18-11-2023 dks U;k;ky; esa izsf"kr dh x;hA ftlds vuqlkj& ^^oh-,e-ih- baVjizkbtst dk;kZy; IykV ua0& 1501] ,p-,l-vkbZ-vkbZ-Mh-lh-] b.MLV~h;y bLVsV] oh-,- jk; lksuhir] gfj;k.kk ds ekfyd fouksn 'kekZ iq= ikyhjke 'kekZ vkfn 06 ukfed O;fDr dks fofHkUu fcyksa }kjk ifjoknh ds laLFkku ,l-,l- jkmUM eky oh-,e-ih- baVjizkbtst }kjk dz; fd;k x;kA fcyks ls ;g izrhr gksrk gS fd nksuks i{kksa esa fnukad 22-01-2019 ls fnukad 14-02-2019 ds chp eky dz;&fodz fd;k x;k ftldk 'ks"k Hkqxrku 1]32]18]802@& :i;s oh-,e-ih- baVjizkbtst] lksuhir gfj;k.kk }kjk] ifjoknh fjef>e bLikr fy0 dkuiqj uxj dks Hkqxrku ugha fd;k x;k gSA bl laca/k esa Fkkuk gktk ij dksbZ vfHk;ksx iathd`r ugh gSA** vr% mijksDr rF;ksa ds dze esa foi{khx.k us oknh eqdnek ds :i;s gM+i dj o okil u nsdj vekur us [;kur dj vkijkf/kd U;kl Hkax fd;k tkuk ifjyf{kr gks jgk gS rFkk mDr cdk;k /kujkf'k ekaxus ij xkyh xykSt ds lkFk ekjus ihVus dk ekeyk Hkh ifjyf{kr gks jgk gSA bl izdkj foi{khx.k }kjk izFke n`"V;k ,slk vijk/k fd;k tkuk ifjyf{kr gks jgk gS] tks Hkk-na- lafgrk dh /kkjk&406] 504] 506 ds varxZr naMuh; gSA vr% foi{khx.k fouksn 'kekZ] v:.k 'kekZ] eqUuh 'kekZ] fjrq 'kekZ] jkf'k 'kekZ ds fo:) izFke n`"V;k ekeyk varxZr /kkjk&406] 504] 506 Hkk0na0la0 dk ik;k tkrk gSA foi{khx.k mijksDr /kkjk esa okLrs fopkj.k tfj, lEeu ryc fd;s tkus ;ksX; gSA vkns'k foi{khx.k fouksn 'kekZ] v:.k 'kekZ] eqUuh 'kekZ] fjrq 'kekZ] jkf'k 'kekZ dks varxZr /kkjk&406] 504] 506 Hkk0na0la0 esa fopkj.k gsrq tfj;s lEeu ryc fd;k tkrk gSA foi{khx.k tfj;s lEeu ryc fd;s tk;sA ifjoknh lwph xokg ,oa iSjoh nkf[ky djsaA leu ds lkFk ifjokni= dh izfr layXu dh tk;sA okLrs gkftjh fnukad 12-02-2024 dks is'k gksA** 8. The first issue before this Court to consider whether in view of judgment passed in Nitin Agarwal and Another (supra), no case is made out for interference and learned Senior Counsel has vehemently placed reliance on its finding which has already been referred. 9. I have carefully perused the Nitin Agarwal and Another (supra). It was a case where there was a commercial transaction between parties and there was an agreement also with a specific condition and since the condition was not fulfilled the Court holds that since the goods entrusted were used without fulfilling the condition, therefore, offence under Section 406 I.P.C was made out, whereas in the present case, it is the argument of learned counsels for applicants that it was a purely civil transaction with a company under the proprietorship of father of some of applicants as well as that they are not responsible for any non-payment and ingredients of Sections 406, 504 and 506 are not made out. 10. In the aforesaid circumstances, I do not find that Nitin Agarwal and Another (supra) will come in the way to decide the present case on basis of material available and argument raised on fact as well as on law that whether there are sufficient grounds to proceed against the applicants and whether ingredients of Sections 406, 504 and 506 are made out or not. 11. It is evident from complainant, statement recorded under Sections 200 and 202 Cr.P.C. that both firm have commercial transaction. Earlier there was no dispute since money was paid to complainant company for goods sold to accused company. On basis of material it could not be denied that accused company has made default, however, Court has to scrutinize whether such default in payment of money in commercial transactions would saddle any criminal liability under Section 406 I.P.C. or it would be a case where complainant has given a cloak of criminal offence to a dispute which is essentially of civil nature arising out of a business transaction. 12. As referred above in order to make out a case of 'criminal breach of trust' there must be 'entrustment' along with presence of 'dishonest intention' to misappropriate it or correct it to his own use to the detriment of the person who entrusted it. 13. 12. As referred above in order to make out a case of 'criminal breach of trust' there must be 'entrustment' along with presence of 'dishonest intention' to misappropriate it or correct it to his own use to the detriment of the person who entrusted it. 13. The expression 'entrustment' carries with it the implication that person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking it. The property so as to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an entrustment. (See Velji Raghavji Patel v. State of Maharashtra, (1965) 2 SCR 429 & the State of Gujarat v. Jaswant lal (1968) (2) SCR 408) 14. At this juncture, few paragraphs of Deepak Gaba and others v. State of U.P. and another (2023) 3 SCC 423 , being relevant are reproduced hereinafter :- "14. Section 406 IPC [ "406. Punishment for criminal breach of trust.-Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."] prescribes punishment for breach of trust which may extend to three years or with fine or with both, when ingredients of Section 405 IPC are satisfied. For Section 406 IPC to get attracted, there must be criminal breach of trust in terms of Section 405 IPC. [ "405. Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or 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".***Illustrations***(b) A is a ware-housekeeper. Z going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. Adishonestly sells the goods. A has committed criminal breach of trust.(c) A, residing in Calcutta, is agent for Z, residing at Delhi. Z going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. Adishonestly sells the goods. A has committed criminal breach of trust.(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust.(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company's paper, here, thought Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.***(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust."(Explanations 1 and 2 and Illustrations (a) and (e) to Section 405 IPC are excluded, as they are irrelevant.)] 15. For Section 405 IPC to be attracted, the following have to be established: (a) the accused was entrusted with property, or entrusted with dominion over property; (b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and (c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. 16. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. 16. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust. [Sudhir Shantilal Mehta v. CBI, (2009) 8 SCC 1 : (2009) 3 SCC (Cri) 646] 17. However, in the instant case, materials on record fail to satisfy the ingredients of Section 405 IPC. The complaint does not directly refer to the ingredients of Section 405 IPC and does not state how and in what manner, on facts, the requirements are satisfied. Pre-summoning evidence is also lacking and suffers on this account. On these aspects, the summoning order is equally quiet, albeit, it states that "a forged demand of Rs. 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand". A mere wrong demand or claim would not meet the conditions specified by Section 405 IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. Hence, even if Respondent 2 complainant is of the opinion that the monetary demand or claim is incorrect and not payable, given the failure to prove the requirements of Section 405 IPC, an offence under the same section is not constituted. In the absence of factual allegations which satisfy the ingredients of the offence under Section 405 IPC, a mere dispute on monetary demand of Rs. 6,37,252.16p, does not attract criminal prosecution under Section 406 IPC. 28. We are, therefore, of the opinion that the assertions made in the complaint and the pre-summoning evidence led by Respondent 2 complainant fail to establish the conditions and incidence of the penal liability set out under Sections 405, 420 and 471 IPC, as the allegations pertain to alleged breach of contractual obligations. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. These attempts are not to be entertained and should be dismissed at the threshold. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. These attempts are not to be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in Thermax Ltd. v. K.M. Johny [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412 : (2012) 2 SCC (Cri) 650], as it refers to earlier case laws in copious detail." 15. In above background, it would be evident that there was a commercial transaction between two firms without any element of 'entrustment'. As soon as goods were handed over to purchaser, the seller loses ownership over it. There is no material or document that in absence of default of payment purchaser has to return the goods or on demand of seller, the purchaser has to return the goods sold. Further there is no material or evidence of 'dishonest intention'. 16. In aforesaid circumstances, ingredients of Section 406 I.P.C. are not made out. 17. So far as other offences under Section 504 and 506 I.P.C. are concerned, it would be relevant to mention few paragraphs of Mohammad Wajid and Another v. State of U.P. And Others, 2023 SCC OnLine SC 951 and relevant paragraphs are reproduced hereinafter: - "Sections 503, 504 And 506 of The IPC 24. Chapter XXII of the IPC relates to Criminal Intimidation, Insult and Annoyance. Section 503 reads thus:- "Section 503. Criminal intimidation. -Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.-A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section. Illustration A, for the purpose of inducing B to resist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation." 25. Section 504 reads thus:- "Section 504. Explanation.-A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section. Illustration A, for the purpose of inducing B to resist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation." 25. Section 504 reads thus:- "Section 504. Intentional insult with intent to provoke breach of the peace.-Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 26. Section 506 reads thus:- "Section 506. Punishment for criminal intimidation. -Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.-And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both." 27. An offence under Section 503 has following essentials:- 1) Threatening a person with any injury; (i) to his person, reputation or property; or (ii) to the person, or reputation of any one in whom that person is interested. 2) The threat must be with intent; (i) to cause alarm to that person; or (ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or (iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat. 28. 28. Section 504 of the IPC contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the Section merely because the insulted person did not actually break the peace or commit any offence having exercised self-control or having been subjected to abject terror by the offender. In judging whether particular abusive language is attracted by Section 504, IPC, the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant. 29. Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504, IPC if he merely uses abusive language against the complainant. In King Emperor v. Chunnibhai Dayabhai, (1902) 4 Bom LR 78, a Division Bench of the Bombay High Court pointed out that:- "To constitute an offence under Section 504, I.P.C. it is sufficient if the insult is of a kind calculated to cause the other party to lose his temper and say or do something violent. Public peace can be broken by angry words as well as deeds." (Emphasis supplied) 30. A bare perusal of Section 506 of the IPC makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant. 31. In the facts and circumstances of the case and more particularly, considering the nature of the allegations levelled in the FIR, a prima facie case to constitute the offence punishable under Section 506 of the IPC may probably could be said to have been disclosed but not under Section 504 of the IPC. The allegations with respect to the offence punishable under Section 504 of the IPC can also be looked at from a different perspective. In the FIR, all that the first informant has stated is that abusive language was used by the accused persons. What exactly was uttered in the form of abuses is not stated in the FIR. One of the essential elements, as discussed above, constituting an offence under Section 504 of the IPC is that there should have been an act or conduct amounting to intentional insult. Where that act is the use of the abusive words, it is necessary to know what those words were in order to decide whether the use of those words amounted to intentional insult. In the absence of these words, it is not possible to decide whether the ingredient of intentional insult is present." 18. As referred above, the statements of complainant and witnesses and reasons assigned in impugned order also fall short to refer basic ingredients of Sections 504 and 506 I.P.C. since intentioned insult is missing. In the absence of these words, it is not possible to decide whether the ingredient of intentional insult is present." 18. As referred above, the statements of complainant and witnesses and reasons assigned in impugned order also fall short to refer basic ingredients of Sections 504 and 506 I.P.C. since intentioned insult is missing. It does not have element of being likely to incite the person insulted to commit a breach of the peace as well as intent to cause alarm is also missing. 19. In aforesaid circumstances, present applications are a fit case to invoke inherent jurisdiction, accordingly, impugned order dated 16.01.2024 is hereby quashed. 20. It is observed that Court has not entered into the legal or factual issue, whether the applicants are liable to pay default money towards commercial transaction involved in present case. 21. Accordingly, these applications are disposed of with aforesaid observation.